' This appeal has been filed by Riaz Ahmad son of Nawaz Rajput and Zulfiqar Bhutto son of Muhammad Hussain Rajput against the judgment dated . 24-11-1994 of the learned Additional Sessions Judge, Sialkot, whereby both the appellants have been convicted under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and each of them sentenced to 2 years' R.I. And 5 stripes. I have heard the arguments of Mr. Rana Ijaz Ahmad Khan, learned counsel for the appellants and Mr. Shuja-udDin Qureshi, learned counsel for the State, who has opposed the appeal. With the assistance of the learned counsel, I have gone through the record.
2. In the complaint dated 3-10-1993, made by P.W.1 Mst. Shamshad alias Rani daughter of Abdul Majeed Bhatti, it was stated that on 25-9-1993 (i,e, about 8 days earlier) at about 5-00 a.m. She had gone out of the house at a distance about one acre in Charri crop for easing herself when the two accused came there and covered her moutl- with cloth, dragged her for about two acres into the rice crop where Riaz accused mishandled her while Bhutto armed with Churri stood about a distance of 100 yards facing the village. According to the complaint, Riaz tore the shirt of the complainant at her arms and shoulders stating that if she would make any noise he would kill her and at that time he was armed with a revolver and trying to unstring her Shalwar but she shouted and in the meantime Bhutto said to Riaz to leave the complainant as two persons from the village were coming towards the scene of occurrence on which the two accused ran away. According to the complainant, Mian Muhammad Latif and Bashir Ahmad came on the scene and they saw the culprits running away. The two persons took the complainant to her house and when her father came, complainant narrated the entire incident but because of embarrassment he kept quiet till the date the complaint was made and on that day she was going with her father for lodging the complaint when the Thanedar met them on the way. According to the complainant, both the accused tried to commit Zina-bil-Jabr with her but by accident she was saved. On the basis of the said complaint, on which the complainant also signed, F.I.R. Was recorded on the same day i,e, 3- 10-1993 at Police Station Sabz-Peer, District Sialkot by P.W.3 Muhammad Farooq, who is also the Investigating Officer. The accused were taken into custody and, after investigation was completed, both the appellants were sent up for trial during which 3 prosecution witnesses were examined, namely, P.W.1, Mst. Shamshad alias Rani, the complainant; P.W.2 Bashir Ahmad who was attracted along with Muhammad Latif (not examined); and P.W.3 Muhammad Farooq, I.O. Statement ,of both the accused were recorded under section 342, Cr.P.C. But they denied the entire incident. In answer to a question, Riaz stated that he had been falsely implicated due to enmity and party politics in the village and in fact complainant had illicit relations with the brother-in-law of witness Muhammad Latif, who had taken her outside in the fields on the day of occurrence and, therefore, in order to save his brother-in-law, Muhammad Latif manoeuvred this case against him. It may be observed that according to the complainant herself, Muhammad Latif is her real uncle and P.W.
Bashir is closely related to Muhammad Latif.
3. In support of the appeal, Rana Ijaz Ahmad Khan, learned counsel for the appellant, first contended that there was a delay of about 8 days in the lodging of the report for which no plausible explanation was available on the record. In the complaint, Mst. Shamshad alias Rani had given the reason for delay as embarrassment on the part of her father but in her evidence before the Court she did not give any reason for the delay. In any case, her father had not been examined as a witness. On the other hand, Investigating Officer stated in his evidence that the reason given for the delay was that she was waiting for her father. This would indicate that the father was not in the house for several days and when he came the report was lodged, but this is not the evidence given by the complainant and, as observed in the F.I.R. The reason given was the embarrassment of the father.
4. Mr. Shuja-ud-Din Qureshi, learned counsel for the State submitted that in such cases delay does take place and is not fatal. However, he could not reconcile the infirmity in the evidence of the complainant who gave no reason for the delay of about 8 days in the lodging of the complaint. In my view, in the circumstances of the case, there is substantial delay in the lodging of the F.I.R. And no explanation has been given by the complainant and though the Investigating Officer states that according to the complainant, the delay had taken place because the complainant was waiting for her father, this. Is not supported by the evidence of the complainant.
5. Then it was argued by the learned counsel for the appellant that the complainant in her evidence stated that her grandfather and uncle had been associated in the investigation by the police but, according to the said close relatives of the complainant, the case against the appellants was false. Learned counsel for the State argued that the grandfather and uncle of the complainant were not eye-witnesses and as such the aforesaid statement of the complainant in her evidence was irrelevant. The entire prosecution case against the appellants depends on the testimony of the complainant and her evidence was required to be scrutinized with great care and caution. The statement of the complainant does affect her testimony as she had not given any explanation for her close relatives stating that the case was false nor she had stated that the said relatives were inimical towards her.
6. It was also contended by the learned counsel for the appellant that the case built up by the complainant against the accused was the incident had taken place at about 5-00 a.m. In late September when it was dark and that the incident took place immediately she sat down in the field to ease herself and, according to the version of the complainant, the entire incident was over in a few minutes and thereafter she was brought back to her house by Latif and P.W. Bashir. The time by which she would have come back would at the most extend to half hour but could not possibly exceed one hour. However, in her cross-examination, she stated as follows:-- "It is correct that my mother and my uncle Latif and some other people brought me from the fields at. About 9-30 a.m. To my house."
' This answer of the complainant is in conflict with her statement that the incident had taken place at about 5-00 a.m. When it was dark. Learned counsel for the State made an unsuccessful attempt to clarify by stating that on account of passage of time there can be difference in the times given, but in the circumstances of this case where, according to the complainant, the incident had taken place in the dark at about 5-00 a.m. And she was brought back in the house within half hour or one hour, the statement that she was brought back from the fields at about 9-30 a.m. To her house cannot be explained as a lapse of memory on account of passage of time. It was contended by the learned counsel for the appellant that, according to the complainant, she was illiterate and affixed her thumb-impression on the complaint, whereas according to the Investigating Officer, she was not illiterate and had signed the complaint.
7. Then according to the complainant, she was dragged by the two accused for two to two and a half acres against her wishes but she did not complain of any injuries caused to her and according to the I.O. No injury marks were shown to him. The torn clothes of the complainant were also not produced.
8. As observed, the entire prosecution case depended on the statement of the complainant and the aforesaid infirmities and contradictions, which cannot be brushed aside and deemed to be minor, affect the veracity of the complainant and as such it was unsafe to base the conviction of the appellants on her testimony. It may be added that evidence had been brought on record through the cross-examination of the complainant that there was enmity also between the accused party and the complainant party on account of serious political differences.
9. As a result, this appeal is allowed, judgment, dated 24-11-1994 passed in Hudood Case No,17 of 1994 of the learned Additional Sessions Judge, Sialkot, is set aside and it is directed that the appellants Riaz Ahmad son of Nawaz Rajput and Zulfiqar Bhutto son of Muhammad Hussain Rajput be released forthwith if not required in any other case.