' KHALIL-UR-REHMAN KHAN, J.--- Abid Javed alias Mithu son of Muhammad Sadiq aged 21 years in this appeal challenged the judgment, dated 23rd August, 1995 whereby the learned Additional Sessions Judge, Sheikhupura, convicted him for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, hereinafter referred to as the Ordinance, and sentenced him to 25 years' R.I. And 30 stripes. The benefit of section 382-B, Cr.P.C. Was, however, allowed.
2. The prosecution case as per the F.I.R. Exh.P.D./1 registered on the basis of the statement made by Mst. Abida Bibi complainant (P.W.4) and recorded by Mushtaq Ahmad, S.I. (P.W.9) is that Mst. Lubna aged 8 years her daughter was learning Holy Qur'an in the house of Master Sadiq father of the accused/appellant. On the day of occurrence at about 2-00 p.m. She along with Talib Hussain (P.W.6), Abdul Ghaffar and Riaz (given up P.Ws.) was sitting in the courtyard of her house and her daughter Mst. Lubna (P.W.8) went to the house of Master Sadiq for learning the Holy Qur'an. Samera a minor girl came after a short while to her and told that Abid Javed accused had taken Mst. Lubna to his room where she is crying. So she ran towards the house of the accused followed by the afore-named persons and saw the accused committing Zina-bilJabr with Mst. Lubna. The accused after seeing them ran away. Shalwar of the victim was off and she was smeared with blood.
Mushtaq Ahmad S.I. After recording her statement Exh.P.D. Conducted the usual investigation and challenged the accused.
3. The prosecution at the trial produced nine witnesses. Besides producing formal police witnesses the prosecution produced Mst. Abida Bibi (P.W.4) the mother of the victim, Talib Hussain (P.W.6) first cousin of the father of the victim while Mst. Lubna the victim appeared as P.W.R. Dr. Basharat Jahan (P.W.3) who had examined Mst. Lubna the victim proved the medico-legal report Exh.P.B. The Chemical Examiner's report Exh.P.C. Is positive as the swabs were found to contain semen. One swa b was sent to Serologist for semen grouping but the said report was, however, not produced.
Abdul Rehman (P.W.7) the father of the victim had produced the blood-stained Shalwar but the same was not sent to the Chemical Examiner for the analysis of the blood. Dr. Iftikhar Ahmad (P.W.2) examined the accused/appellant and after his examination recorded the opinion that nothing was found to suggest that the accused/appellant was not fit for sexual act. Exh.P.A. Is the exact carbon copy of the medico-legal report. Mst. Abida Bibi (P.W.4) supported the prosecution version as contained in the F.I.R. Exh.P.D./1. Talib Hussain (P.W.6) supported the prosecution version in material respects except on the point of seeing the accused committing Zina-bil-Jabr. His statement in this respect reads as under:-- "I along with Abida Bibi complainant, Abdul Ghaffar and Riaz P.W. Ran towards the house of Sadiq and saw the Shalwar of Lubna Bibi was off and the bleeding was continued. The accused Abid Javed after seeing us ran away from the other door of the room within our view."
It is also important to note that Riaz the real paternal-uncle of the victim and Abdul Ghaffar who is sister's husband of the paternal-aunt of the victim were given up as unnecessary. Mst. Lubna (P.W.8) the victim was aged ten years at the time of making the statement before the Court and was about eight years at the time of occurrence. She was examined by the Court after receiving full satisfaction that she is a competent witness. Mst. Lubna Bibi the alleged victim stated that about one and a half years ago she went to the house of her neighbored, where someone had committed Zina-bil-Jabr with her but she could not identify that accused as at that time he had muffled his face. She was then on the request of the prosecution declared hostile and was cross- examined. She in cross-examination admitted that she has been learning the Holy Qur'an in the house of the accused present in Court from the mother of the accused. She refuted the suggestion as incorrect that accused/appellant had committed Zinabil-Jabr with her. She also refuted the suggestion as incorrect that his parents had affected a compromise with the accused and that she is making a false statement to save the accused. She also refuted the suggestion as incorrect that she had been directed by her parents to make statement in favor of the defense. From the statement of Mst. Lubna Bibi it is apparent that she is quite an intelligent girl and she understood what she was deposing and as such there is nothing to come to the view that she due to tender age was not capable to give rational answers and was not a competent witness. The learned trial Court after asking few questions of which rational answers were given by Mst. Lubna Bibi rightly declared her a competent witness. Her statement made before the Court could not be demolished in the cross-examination. In her statement Mst. Lubna Bibi P.W. Completely absolved the accused/appellant. The learned trial Court, however, discarded the statement by observing that she had exonerated the accused as the complainant is a poor person and belongs to the poor family while the accused is very much influential. He by exerting his influence got a compromise, therefore, the victim had not deposed against the accused. Learned Judge further observed that there was sufficient material on record to connect the accused with the occurrence. Firstly it is the version of the victim which must receive corroboration from independent source. In this case the victim has exonerated the accused fully and completely. The learned trial Judge is not right in observing that the victim had admitted indirectly that Zina was committed with her in the house of the accused. Mst. Lubna Bibi P.W. In fact had stated that she went to the house of her neighbored where someone had committed Zina-bil-Jabr with her. The house of Muhammad Sadiq who is the father of the accused is situated at a distance of one acre from the house of the victim and some houses are situated in-between these houses. As such even the scene of the alleged crime is not the same as is mentioned in the F.I.R. Secondly, the two P.Ws., namely, Mst. Abida Bibi and Talib Hussain were admittedly attracted to the spot on information given by Sumera a child who was not produced in Court. To this extent the statement made by Mst. Abida Bibi P.W. Was objected to as inadmissible in evidence being hearsay. The learned trial Court noted the objection and reserved its judgment in this regard but this objection was not dealt with in the final judgment. If the information which Sumera statedly gave to the mother of the victim Mst. Abida Bibi P.W. Is ruled out of consideration then the version of Mst. Abida Bibi and Talib Hussain P.Ws. As to going to the house of Muhammad Sadiq and seeing the commission of Zina becomes improbable. It is also important to note that Talib Hussain P.W. Did not claim to have seen the accused/appellant committing Zina.
He only stated that on seeing them the accused ran away from the other door of the room.
Moreover, the lady doctor in her statement deposed that there was no mark of violence on the body of the victim and the injury on the vaginal area may or may not be due to the sexual intercourse. She added that she had not mentioned in medico-legal report Exh.P.B. Specifically that the victim was subjected to sexual intercourse or not and that she had mentioned therein that according to the Chemical Examiner's report the swabs were stained with semen which shows that the victim was subjected to sexual intercourse.
4. Besides the aforesaid features emerging from record the main feature of the case is that the victim of the alleged crime who is an intelligent girl has exonerated the accused fully. May be it was due to a compromise arrived at between the parties but the doubt cast on the prosecution case cannot be resolved in favour of the prosecution. The benefit of doubt in any case is to be extended to the accused.
5. It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist. In cases of Zina the prosecution will be well- advised to obtain the semen of the accused and have it analyzed by the Serologist for matching with the semen found on the swabs.
This Court even earlier in the case of Mst. Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit with the semen found on the vaginal swabs. It was observed, "It is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina-bil-Jabr. The Police Officers in their reference to the Medical Officers should also in such cases invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology along with vaginal swa bs and clothes/cloth etc., having seminal stains." Copies of the judgment were sent to the Secretary interior, Secretary Department of Law, Home Secretaries and the Inspector-General, Police of the Provinces but the Investigating Officers have shown no interest in complying with the said direction and requiring the Medical Officers to obtain specimen of semn of the accused for comparison with the semen found on the vaginal swabs or the clothes both etc. Having seminal stains. This is high time that these directions are followed in letter and spirit as this important piece of evidence will remove doubt if any with regard to the identity of the person committing Zina or Zina-bil-Jabr.
6. For the reasons given above we are inclined to hold that in the facts and circumstances of the case the prosecution has not been able to prove the case beyond, shadow of doubt. We, therefore, acquit the accused extending benefit of doubt. His conviction and sentences are set aside. He shall be released forthwith if not required to be detained in any other case. The appeal stands accepted.
Copies of the judgment be sent to the Health Secretaries, Home Secretaries and Inspector-General Police of the Provinces for issuing necessary instructions to the police and prosecution agencies and the Medical Officers.