1. ' MUHAMMAD RAFIQ TARAR, J.---This appeal by Muhammad Maroof appellant with the leave of this Court is directed against the judgment of the learned Federal Shariat Court dated 16-3-1992. The appellant was convicted by a learned Additional Sessions Judge under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to R.I. For 15 years, 30 stripes and a fine of Rs,5,000 on the first count and R.I. For 20 years, 30 stripes and a fine of Rs,10,000 on the second count with the direction that both the sentences shall run concurrently. On appeal to the Federal Shariat Court his conviction under section 11 was altered to one under section 16 of the Ordinance and that under section 10(3) to one under section 10(2) of the Ordinance and sentence on each count reduced to R.I. For 7 years, 30 stripes and a fine of Rs,10,000 to run concurrently.
2. By order dated 24-8-1992 leave to appeal was granted "to reappraise the evidence on the record for safe administration of criminal justice".
2. In this case the occurrence allegedly took place on 22-4-1990. The prosecutrix Mst. Shabana is the younger sister of the wife of the appellant. She was allegedly kept by the appellant at the house of his step-sister for 3 days and 3 nights and was left at the house of her father on the fourth day which comes to 26th April, 1990. The F.I.R. Was, however, lodged on 3-5-1990 for which no reasonable explanation was offered. Mst. Shabana was medically examined on 5-5-1990 by Lady Dr. Gule Rana who found no mark of violence on any part of her body. Her vagina admitted two fingers easily and in her opinion she was not a virgo intacta. The delay in lodging the F.I.R. And the medical examination of Mst. Shabana represent a very unsatisfactory feature of the prosecution case. The story itself is absurd and unbelievable. It will be appropriate to reproduce it as narrated by Mst. Shabana at the trial. It is as under:--- "On 22-4-1990 this incident took place. It was 7-30 a.m. At that time was going to my school called Blind School. It was the month of Holy Ramazan and I was with Roza. When I reached near my school the accused who is my brother-in-law met with me, and informed me that his wife/my sister was ill and lying in Civil Hospital. On that day there was my examination and therefore I said to him that I could not go but the accused told me that the condition of my sister was serious and she was calling me. I told him that he should go to my house from he could take my mother. The accused insisted and therefore I agreed. He stopped a Rikshaw and took me to Korangi No, 5 Bus Stop. From there we came in bus to Saddar. From Saddar we come in another bus and left the bus to some place where there was a market and from there we took a Rikshaw and came to a place where there was playground and we left the Rikshaw. From that place we came to a house of some person. That house was of Jamila who is step-sister of the accused. At that time Jamila, her daughter Rani and two sons Masroo and Kaka both minors were also present. In that house there was only a room and courtyard. The accused left me in that house. At about noon time the husband of Jamila namely Rasheed also came in the house to take lunch. The accused came back at about 9-00 or 9-30 p.m. We all went to sleep in the night, in the same room. In that room the step-sister of the accused Maroof and her husband and also myself and the accused were sleeping. The minor sons of the sister of the accused and the daughter who is major and taken divorce from husband were sleeping in the courtyard. There was dark in the room. At about 1-00 or 1-30 a.m. The accused awoked me and when I tried to raise cries he put his hand on my mouth. He then put his pistol on my temple and asked me to come on his bed. When the accused tried to open the tape of Shalwar I raised cries and saw towards the sister of the accused to help me but I did not saw whether she got up or not but she did not come for my help. Thereafter, the accused forcibly committed Zina twice with me. I resisted against this offence and I beg before him and gave Qassam of his mother but he did not listen. Thereafter I could not sleep for whole of the night.
3. The accused had left the house at about 6-00 a.m. I tried to talk with the sister of the accused but she was not agreed to face me. However, she gave me a pair of clothes and I changed my clothes after taking bath. The accused came on the next day at about 8-00 p.m. The accused his sister and his brother-in-law remained in talking to each other but nobody talked with me. On the same night we again went to sleep in the same room at the same time where the sister of the accused and her husband were also sleeping along with me and the accused. The accused again called me on his bed and when I tried to raise cries he again put pistol on my temple and due to fear I went to his bed and he committed Zina with me three times. The accused thereafter left the house in the morning and came back at the night time. The accused them repeated the offence on the third night also in the same and committed Zina upon me twice. On the 4th day the accused took me from that house in the night time at about 8-30 or 8-45 p.m. And brought me to Saddar.
4. Reaching at Saddar the accused took meal and then he brought me at my house in a taxi and give threat that had I informed anybody about the incident then my brother and sister would be murdered. Then I was brought to my house by the accused. On the next morning I informed about the incident to my mother. I was examined by the Police. I was also referred to the hospital for medical examination."
5. ' In cross-examination she stated that for four days during which she remained in the house of the sister of the appellant she did not inform anybody about the incident. She tried to leave that house but nobody allowed her to do so as the room used to be bolted from outside. The above story is too absurd to deserve any credit. It is impossible to believe that a person would commit Zina with a willing or unwilling girl in a room where his sister and brother-in-law were also sleeping on the same floor. In cases of abduction and/or rape when there is no evidence showing motive for false implication the Courts do consider the argument raised on behalf of the prosecution that nobody would like to involve his womanfolk in such affairs to falsely implicate an innocent person. The present case, however, stands on a different footing. Mst. Shabana admitted in cross-examination that her sister (wife of the appellant) was forcibly taken to the police station by the mother of the appellant. She further stated that she did not know why the relations between the appellant and her sister were strained. According to the investigation officer the complainant (father of Mst.
6. Shabana) had disclosed that "there were disputes" "between the accused and his wife over demand of money by the accused". In the circumstances the solitary statement of Mst. Shabana was not sufficient at all to warrant conviction under section 10(2) or 10(3) of the Ordinance.
7. ' For the foregoing reasons we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.