1. ' NASIR ASLAM ZAHID, J.--- Appellants/convicts Mst. Rabia Khatoon wife of Siddiq Ahmed and Moulvi Muhammad Rafiq son of Badshah Mian have filed this appeal under section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 410, P.P.C. Against their conviction and sentence by the VIth Additional Sessions Judge, Karachi East, vide judgment, dated 27-2-1994 in Sessions Case No,550/88. Appellant No,1 Mst. Rabia Khatoon has been sentenced under section 11 of the Ordinance of 1979 for five years rigorous imprisonment with whipping by five stripes and also fine of Rs,5,000 and in default to undergo further imprisonment for two years. Appellant No,2 Moulvi Muhammad Rafiq has been sentenced under section 10(3) and section 11 of the Ordinance of 1979 for 25 years' R.I. With whipping by 30 stripes and a fine of Rs,5,000 and in default to undergo further R.I. For two years. In this case, the victim is Mst. Sabiqun Nihar, sister of complainant Shabbir Ahmed son of Muhammad Hashim. The complainant had lodged F.I.R. At Police Station Korangi on 14-7- 1988 at 12-30 hours. According to the F.I.R., the complainant had gone to offer Isha prayer on 9-7- 1988 and returned to his house at bout 9-30 p.m. When he found his father standing at the door of the house. He informed the complainant that his sister Sabiqun Nihar aged about ten years was standing outside the gate waiting for her mother, but when complainant's father came out at about 9-30 p.m. He did not find the victim present there. The complainant further stated that he had been searching for his sister amongst his relations, but whereabouts of the victim could not be found, and he strongly suspected that his sister Sabiqun Nihar had been enticed away for the purpose of committing Zina by Abdul Bashar, Munir Ahmed, Issa Ahmed, Moulvi Muhammad Rafiq and Rabia Khatoon. Sub-Inspector Abdul Ghafoor, Investigating Officer, carried out the investigation and submitted the challan, in which accused Abdul Bashar, Munir Ahmed, and Issa Ahmed were shown as absconders. The two appellants were arrested, against whom charge was framed, but both pleaded not guilty. Prosecution examined the following six witnesses:--
(1) P.W.1 complainant Shabbir Ahmed (Exh.4), who produced the F.I.R. As Exh.4/A, memo. Of arrest and personal search of the appellant Moulvi Muhammad Rafiq as Exh.4/B.
(2) P.W.2 Sabiqun Nihar, the abductee, Exh.5.
(3) Investigating Officer, S.I.P. Abdul Ghafoor as Exh.7, who produced memo. Of inspection of Vardat as Exh.7/1; memo. Of arrest of appellant Rabia Khatoon and memo. Of recovery of abductee as Exh.7/B, and memo. Of pointation of place of incident as Exh.7/C.
(4) P.W.4 Jaffar as Exh.8.
(5) P.W.5 Dr. Mrs. Tehsin Iqbal, Medico-legal Officer in Civil Hospital, Karachi as Exh.10, who produced the medical certificate regarding the examination of the victim as Exh.10/A.
(6) P.W.6 Dr. Hamid Ali, Assistant Police Surgeon as Exh.11, who produced the age certificate of the victim, dated 16-7-1988 issued by Dr. Hussain Bakhsh Memon, stating that he was conversant with the signature and handwriting of Dr. Hussain Bakhsh Memon, who was Police Surgeon for more than three years.
2. ' The statement of the two appellants/convicts under section 342, Cr.P.C. Was recorded as Exhs.13 and 14. The two appellants did not examine themselves on oath, nor they examined any witness in support of their case.
3. ' We heard at length the arguments of Mr. Azizullah K. Shaikh, learned counsel for the appellant and Mr. Habib-ur-Rashid, learned counsel appearing for the State on 23-4-1994 and, on close of their submissions, by our short order, allowed the appeal and acquitted the appellants. Reasons for our short order allowing the appeal are contained in this judgment.
4. ' With the assistance of the learned counsel for the appellants, and learned counsel for the State, we have gone through the entire record which was available. It was conceded by Mr. Habib-ur- Rashid, learned counsel for the State, that the entire case of the prosecution depended upon the testimony of the victim, Mst. Sabiqun Nihar. Although, in law, it is possible to base a conviction on the solitary evidence of a witness, the rule of prudence requires that it may be unsafe to sustain a conviction on the solitary statement of one witness, and the solitary evidence should invariably be corroborated by some other legal evidence.
5. ' In the present case also, in view of the state of evidence and certain contradictions in the statement of the victim, we are of the view that it was unsafe to base the conviction of the appellants on the solitary evidence of the victim. In the circumstances, we looked for pieces of evidence which could corroborate the testimony of the victim/abductee and we could find no corroborative evidence.
6. We may first observe that there is delay of about five days in lodging of the F.I.R. The victim was alleged to have been abducted on 9-7-1988 by five accused persons including the two appellants, and the three absconding accused, all closely related to the complainant's family, whereas the F.I.R. Was lodged on 14-7-1988. Except the victim who has stated that she had been abducted by the three absconding accused (and not the two appellants), no other witness had witnessed the abduction of the victim. Then the victim was recovered on 15-7-1988, but her statement, the most crucial in the prosecution case and on which the entire case of the prosecution depended, was recorded by the Investigating Officer, S.I.P. Abdul Ghafoor on 23-7-1988 and her statement under section 164, Cr.P.C. Was also recorded on 28-7-1988. There is a time lag of about 8 days between the date on which the victim was secured i,e, 15-7-1988 and the date on which her statement was recorded by the Investigating Officer i,e, 23-7-1988. No explanation has been offered by the Investigating Officer, or the prosecution for this inordinate delay in recording the statement of the victim. It is an established principle of law that the statement of the witnesses in a criminal case should be recorded during investigation without any delay and it has also been held in some cases that even the delay of one or two days may be sufficient to discard the testimony of the witness. In any case, the delay in the recording of the statement by the Investigating Officer of the victim being 8 days, we arc of the view that, even if the testimony of the victim at the trial is not discarded, at least her testimony requires corroboration, through other cogent evidence to record a conviction.
7. ' The trial Court has found corroboration in the medical evidence. However, we are of the view that the medical evidence does not corroborate the version of the victim that she had been subjected to forcible Zina by the appellant Moulvi Muhammad Rafiq. The girl had been recovered on 15-7- 1988 and she was examined by P.W.5 Mrs. Tehsin Iqbal on the next day i,e, 16-7-1988. The relevant part of the testimony of the Medico-legal Officer is reproduced here:- "External genital, no mark of injuries were seen. Vulva and vagina marks of violence were not seen anywhere on the body. Hymen torned old healed. Tags were present. Vagina admits one finger with ease and two fingers with difficulty. Vagina slides were taken and sent for Chemical Examiner. Urine was sent for pregnancy test and it was found negative.
8. ' In my opinion the girl was not virgo intacta and has been exposed to sexual intercourse. For final opinion vaginal slides were taken to send for chemical examination."
9. ' The above medical evidence does not provide the requisite corroboration of the testimony of the witness. It may further be observed that, in the evidence of Dr. Mrs. Tehsin Iqbal, it was stated that for final opinion vaginal slides were taken for chemical examination, but report of the Chemical Examiner was not produced in evidence.
10. We are of the view that, in the present case, the only evidence against the appellants is that of the victim, which evidence, apart from containing several contradictory statements, requires corroboration for sustaining the conviction of the appellants, which corroboration is lacking. We are, therefore, of the view that the prosecution has failed to make out a case beyond reasonable doubt against the two appellants, and for the aforesaid reasons, by our short order, dated 23-4- 1994, the two appellants/convicts were acquitted and their appeal was allowed.