JUDGMENT AHMAD SAEED AWAN, J.- Amanat Ali alias Billa son of Inayat Ali appellant was tried by the learned Addl: Sessions Judge, Sialkot for committing unnatural offence with Munir Hussain aged 8/9 years in case FIR No. 138 dated 2.4.1992 under section 12 of the Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377 PPC P.S. Uggoki and was sentenced to i.e years RJ. With a i.e of Rs.2,000/-. In default of the payment of i.e, the appellant was directed to further undergo imprisonment for a period of three months R J.
2. The prosecution story as narrated in the FIR Ex, PA/1 was to the effect that the complainant Muhammad Akram PW 1 father of the victim accompanied by his son Shabhir Hussain PW 2 and one Muhammad Ali PW 3 were passing through Roras road in front of shop of Rehmat (DW 1). They heard shrieks of the victim from inside the shop. They opened the door and saw the appellant/accused committing sodomy with Munir Hussain PW 8 son of Muhammad Akram PW 1 complainant. The prosecution examined as many as nine PWs. Report of Chemical Examiner was tendered as Ex, PD. The accused refuted the allegation in his statement under section 342 Cr.P.C, and produced two DWs in his defence; however, he did not appear as his on witness under section 340 (2) CrF. C.
3. The prosecution eye witnesses i.e. Muhammad Akram PW1, fa&er of the victim, Shabhir Hussain PW 2, brother of the victim and Muhammad Ali PW 3, flatly denied to have seen the occurrence and were declared hostile and did not agree to the suggestion that they had seen the occurrence.
Munir Hussain PW8 aged 8/9 years categorically stated that neither he was produced before the doctor for medical examination nor was subjected to any medical examination though mentioned the name of appellant for committing unnatural offence with him.
4. The appellant produced two defence witnesses i.e. Rehmat Ali DW 1, the owner of shop where the alleged occurrence took place and Muhammad Sharif DW 2, owner of shop situated opposite to the alleged place of occurrence; who denied the occurrence.
5. The learned counsel for the appellant contended that the FIR was registered after a delay of 10 hours, all the three alleged eye witnesses including father and brother of victim did not support the prosecution version as mentioned in the FIR and PW 8 Munir Hussain, the victim was neither produced before the doctor nor examined and medico legal report was a fabricated document and doubtful. He vehemently contended that the original doctor, who allegedly medically examined the victim was not produced in the Court, hence the evidence of Yaqoob Masih Dispenser PW 9 was unreliable; on that account credibility of medico legal report has become doubtful and could not be relied upon. The prosecution case had been cooked against the appellant because of enmity of Sulfury family of the village.
6. The learned counsel for the State resisted the arguments and urged that statement of victim who was observed to be prudent enough clearly nominated the appellant and his version had been supported by report Ex, PD of Chemical Examiner which was positive and detected semen in the internal and external anal swa bs of the victim.
7. I have heard the arguments advanced by the learned counsel for the parties at length and have examined the record with their able assistance.
8. I am of the view that the prosecution has failed to prove the case beyond any shadow of doubt as there was no ocular corroborative evidence; even the father and brother of the victim did not support the prosecution version; the medico legal report and contents of MLR relating to the victim were not put to cross examination; so the contents of report could not be relevant and supportive to the statement of the victim. The learned Addl: Sessions Judge while convicting the appellant relied upon Muhammad Razzaq etc. Versus The State (PLD 1967 S.C. 363). The facts of the present case are quite different and the law laid down therein is not attracted and applicable in the present case as the real father and Brother of the victim who were eye witnesses in the FIR did not support the prosecution version. Further, the learned Addl: Sessions Judge himself disbelieving the prosecution version exonerated the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.
9. All these facts pointed out above raise a reasonable doubt in the case of prosecution. It may be observed that it is the basic duty of the prosecution to prove their case beyond all reasonable doubts. It is not for the defence to disprove the case of prosecution. The defence is required to do is only to create a dent in the case of prosecution and once the defence succeeds in doing so, the benefit of doubt has to go to the accused. In the present case, the appellant succeeded in creating dent to the prosecution case. Consequently, the appeal is accepted, the conviction and sentence awarded by the trial Court is set-aside and the appellant is acquitted giving him benefit of doubt.
He shall be released forthwith if not required in any other case.