' Complainant Mst. Muflaseen wife of Sher had gone to ease herself in the maize field of Muhaminad Arif on 4-6-1992 where Roshan Ali appellant committed Zina-bil-Jabr with her on the point of 12 bore pistol. She raised alarm whereby her real brother Muhammad Ashraf and Muhammad Ali were attracted to the spot and on seeing them the appellant decamped from the spot. Mst. Muflaseen recorded F.I.R. No,137 of 1992 in Police Station Chuchak, District Okara on 6-6- 1992 at 7-20 a.m.
2. Mst. Muflaseen was examined by the lady doctor on the same day and her vaginal swabs were taken and sent to the Chemical Examiner. The appellant was arrested on the same day. After investigation he was sent up for trial before Additional Sessions Judge, Okara, who charged him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which the appellant pleaded not guilty and claimed trial.
3. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under section 10(3) of the Hudood Ordinance and sentenced him to tilitiergo rigorous imprisonment for 5 years and to suffer 30 stripes. The convict has challenged his conviction and sentence by the appeal in hand.
4. I have heard learned counsel fir the parties, who also led me through record of the case.
5. The offence was allegedly committed at 8-00 a.m. On 4-6-1992 but the F.I.R. Was recorded at 7- 20 a.m. On 6-6-1992 with a delay of almost 48 hours. Although it is mentioned in the F.I.R. That the complainant was restrained from making the report by the appellant on the plea of compromise but this ground was not taken in the evidence during the trial. As such there is no explanation for this inordinate delay of 48 hours in disclosing the occurrence. Even otherwise the complainant Mst.
Muflaseen is a married woman and spent two nights in her house in the company of her husband and then she went to the police station to record the F.I.R. As such the medical evidence and the chemical result of swa bs have no consequence and do not advance the case of the prosecution in any way.
6. It was also pointed out by the learned counsel for the appellant that according to the F.I.R. The complainant had raised alarm whereby her brother and another person were attracted to the spot whose presence near about the place of occurrence was not established whereas Muhammad Arif owner of the field was not only present in his field but was also sloughing it but strangely enough he was not attracted to the spot on the alarm raised by the complainant. This circumstance has also further made the prosecution case weaker. Even otherwise during cross-examination the complainant admitted that the appellant was attempting to commit rape when on her alarm the witnesses were attracted to the spot and the appellant decamped. In such view of the matter no offence appeared to have been committed by the appellant.
7. Consequently the appeal is accepted. The conviction and sentence of appellant Roshan Ali son of Muhammad Ali awarded by the learned Additional Sessions Judge by judgment, dated 17-1-1993 are set aside. He is acquitted of the charge for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.