' ABDUL, WAHEED SIDDIQUI, J.--- Ghulam Yaseen was tried by the Court of the Sessions Judge, Mulaffargarh for the offence punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (No,VII of 1979) allegedly committed by him on 4-7-1993 at about 2 p.m. In the area of Mauza Pirhar Gharbi, Police Station Kot Adu, District Muzaffargarh. The trial Court acquitted him of the charge for the commission of the offence of Zina-bil-Jabr with Mst. Amna Mai aged 14/15 years vide its judgment announced in open Court on 23-5-1995.
2. Aggrieved by the above-mentioned judgment of acquittal, this criminal revision petition/appeal filed under section 417(2), Cr.P.C. Read with. Article 203-DD of the Constitution of the Islamic Republic of Pakistan was preferred and received in this Court on 23-7-1995. Since the appeal against acquittal had become time-barred, it was converted into a revision petition and admitted as such on the request of Dr. M. Aslam Khaki, the learned counsel for the petitioner on the finding of the fact that it was filed within 60 days vide order of this Court, dated 17-10-1995.
3. The case of the prosecution, in brief, is that one Abdul Majid (P.W.3) lodged a report at Police Station Kot Adu on 13-7-1993 that he is a resident of Basti Shahwala, Mauza Pirhar Gharbi and runs a retail shop. It is alleged that on 28-6-1993 he had gone with Tableeghi Jama'at for ten days leaving his family at his residence. On return, his wife Mst. Sahiban informed him that on 4-7-1993 while she had gone to cut the fodder, her unmarried daughter Mst. Amna Mai (P.W.1) aged 14/15 years entered the room of fodder cutting Toka machine for placement of fodder before the cattle and there then the petitioner entered the room, caught hold of her, made her to fall on the ground, committed Zina-bilJabr with her after having broken the string of her Shalwar forcibly. Upon her alarm, Haq Nawaz (P.W.2) and Abdul Rahman rushed towards the place of incident and Mst.
Sahiban also ran and reached the spot. Abdul Rahman and Haq Nawaz raised Lalkara and on their arrival the petitioner/accused ran away towards his house after having taken away his Chadar Posheedani. All the three identified the petitioner/accused and made Mst. Amna (P.W.1) to wear the Shalwar and brought her in the house. The complainant (P.W.3) alleged further that when he returned from the Tableeghi Jama'at, he was informed about the incident and the relatives of the petitioner/accused were compelling him to come to some sort of compromise to which he declined and lodged report. The prosecutrix (P.W.1) was referred for her medical examination to Lady Doctor Mrs. Fahimda, W.M.O., T.H.Q. Hospital Kot Adu (P.W.6) who examined her on 14-7-1993 and reported that Mst. Amna Mai's hymen was intact and that sexual intercourse was not committed with her. She had taken three vaginal swabs of the prosecutrix, sealed in a bottle and sent to the Chemical Examiner, Multan. The Chemical Examiner reported vide Exh.P.E. That the vaginal swa bs were stained with semen. The prosecutrix was also referred to Lady Doctor Khalida Perveen, Gynaechologist, T.H.Q. Hospital, Kot Addu (P.W.7) who examined her on 22-8-1993 and reported vide Exh.P.F./1 that hymen was torned posteriorly, tears were old, vagina was laxed and admitted two fingers easily and that the prosecutrix was not virgin.
4. Abdul Latif, S.H.O., Police Station Kot Addu (P.W.8) investigated the case, took possession of a shirt (P.1), Shalwar (P.2) belonging to prosecutrix vide Exh.P.A., three keys Exh.P.3/1-3 which were in a key- ring and in the key-ring was a photo copy of the N.I.C. Of the petitioner/accused, Exh.P.4 and all these articles were handed over to him by the complainant (P.W.3). He searched the accused/petitioner but he was not available and he had secuted interim pre-arrest bail. The petitioner ran away from outside the Court-room after dismissal of his pre-arrest bail but was finally arrested on 2-8-1993. The petitioner was referred for medical examination on the same date to Dr. Muhammad Shafique Khan, Casualty Medical Officer, T.H.Q. Hospital, Kot Addu (P.W.9) who found him sexually potent vide his report Exh.P.H./1. Investigating Officer (P.W.8) recorded statements of the P.Ws., and after completing investigation challaned the petitioner.
' The prosecution relied on the-ocular evidence furnished by Mst. Amna, the prosecutrix (P.W.1) Haq Nawaz (P.W.2), whereas the third eye-witness Abdul Rahman was given up as unnecessary and fourth natural eye-witness whose name is appearing in F.I.R. i,e, Mst. Sahiban, the mother of the prosecutrix, was not taken on the record as a P.W. It is alleged that the eyewitnesses are corroborated by the medical evidence of Lady Doctor Khalida Perveen (P.W.7), positive report of the Chemical Examiner (Exh.P.E.) and deposition of Dr. Muhammad Shafiq Khan (P.W.9) who reported admittedly that the petitioner/accused was sexually potent vide Exh.P.H./1. Reliance was also placed on the left over articles by the petitioner at the spot namely three keys in a chain containing also photo copy of his N.I.C. Vide recovery memo.
5. When examined under section 342, Cr.P.C. The petitioner denied the whole story and replied to question No,8 (Why the P.Ws. Have deposed against you?):-- "The P.Ws. Are related inter se and with the complainant. In fact. On 4-7-1993, the complainant and the P.Ws. Belaboured me and my father, they snatched Rs,10;000, my keys and the photo copy of my identity card from me and a Panchayat was also convened in that respect. The Panchayat returned the verdict against the complainant party for the return of aforesaid Rs,10,000 to me, further imposing the penalty of Rs,10,000 on the complainant party. Thereupon, the complainant party sought time of one week for payment of the said amount but they failed to return the amount and lodged the instant false case against me after one week. My father has lodged the complaint in that respect which is pending in the Court of Illaqa Magistrate, Kot Addu. I have been falsely implicated in this case due to said enmity."
' He refused to be examined on oath, and about production of any defence he said he will produce only documentary evidence. Then he tendered in evidence an attested copy of the complaint Exh.D.H., copy of the order of Magistrate Exh.D./1, copy of the order of Additional Sessions Judge, dated 11-8-1993, Exh.D.J., and copy of a letter issued from Additional Sessions Judge to the Superintendent of Police, Muzaffargarh, Exh.D.K. And closed his side.
6. The learned counsel for the petitioner contended that the prosecution has successfully proved the guilt of the respondent; that a very strong and valid case was made out for conviction of the respondent on the basis of prosecution witnesses; that the eye-witnesses had no serious enmity of the type to stake the reputation of a young unmarried girl of the family: that the medical evidence of P.W.7, and a positive report of Chemical Examiner of the detection of semen from the vaginal swa bs of the prosecutrix (Exh.P.E.) and the recovery of three keys in a chain with a photo copy of N.I.C. Belonging to the petitioner and not denied by him as well were enough for corroboration of the occular evidence. He also made a reference to the conduct of the petitioner after the lodging of F.I.R. Against him on 13-7-1993. Document Exh.D.H. Is a direct complaint made by the petitioner, his father and others in the Court of Illaqa Magistrate on 16-8-1993 and it was fabricated as a counter- blast to the present case, one month and three days after the F.I.R. Lodged against the petitioner, to the effect to show that the recovery of three keys and N.I.C. Was not a recovery but rather these articles were snatched from him along with Rs,10,000.
7. The learned counsel for the respondent as well as State contended that the impugned judgment of acquittal was neither perverse nor the reasons thereof are artificial and ridiculous. They contended that scope of appellate Courts is limited in the matters of criminal acquittals, specially when the same are in the form of revision petitions/applications. They relied on the rulings of their Lordships in 1994 SCM R SC 1928, 1996 SCM R 188, PLD 1983 SC 73, PLD 1983 SC 23, PLD 1982 SC (AJ&K)
13.
Ruling appearing as Plancentium A of 1994 SCM R 1928 is an enunciation of a principle of law by the Supreme Court of Pakistan. It reads:- "Consideration for interference in an appeal/petition against acquittal and in an appeal/petition from conviction are altogether different. The well-settled principle for the appreciation of appeals against acquittal are--
(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;
(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons therefore are artificial and ridiculous, the Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose." [p. 1933] A ' Keeping in view these principles of law enunciated by the apex Court, we have appreciated the arguments addressed by the learned counsel for the parties with caution, and have carefully assessed the impugned judgment.
8. There is one more aspect of the case which needs proper appreciation. P.W.6 Lady Doctor Mrs. Fahmida is 'so firm about her opinion that when confronted with positive result of vaginal swabs being stained with semen, she opined that Mst. Amna was not subjected to sexual intercourse and she was virgin. When declared hostile at this stage and cross-examined by the learned District Attorney, she replied to certain questions: "Hymen was certainly intact. Elastic hymens remain intact despite first sexual intercourse, but such hymens are very rare. It was not a case of elastic hymen and if it were so, I would have mentioned it accordingly. Volunteered that in case of elastic hymens, the vagina admits two fingers easily, but it was not so in this case".
' In her examination-in-chief she had opined that a vagina admitted one finger easily and that there were no marks of violence on head, neck, chest, abdomen both upper and lower limbs and external geniture.
' One month and eight days later when examined by Lady Doctor Khalida Perveen (P.W.7), the result was that vagina was laxed and admitted two fingers easily and that Mst. Amna was not virgin.
During cross-examination, she has replied to certain question as under:-- "Since the examinee was brought before me by the police and referred to me by the Medical Superintendent, there was no necessity for me to get her identified by any person at the time of medical examination. I did not mention the identity card number of Mst. Amna in my medical report. Volunteered, that since she was 15 years old, she may not be having identity card."
' In other words, this witness identified the prosecutrix through the police and the role of police in this case is certified by a letter written by learned Additional Sessions Judge, Muzaffargarh to the Superintendent of Police, Muzaffargarh wherein he has taken a judicial notice of the fact that the Investigation Officer has dishonestly conducted the investigation. These circumstances do not rule out the possibility of the substitution of an unmarried virgin lady of 15 years with another married lady of identical age otherwise admission of two fingers in a laxed vagina is not the case of the prosecution. The discussion carried above casts strong doubts on the prosecution story, and it is an established principle of law that the benefit of doubt always favors the accused.
' We have carefully gone through the impugned judgment and have found that it contains valid reasons and is neither perverse nor artificial nor ridiculous and is further aided by our observations as made above.
10. The upshot of the dismiss ion is that there being no compelling reasons to interfere with the well-reasoned judgment of acquittal, we hereby dismiss the revision petition and uphold the impugned judgment.
Revision .