' DR. FIDA MUHAMMAD KHAN, J.--- This criminal appeal filed by Anara son of Ali and Saifullah alias Phullu son of Nazar Muhammad, both residents of village Nian Ranjha, District Mandi Bahauddin, is directed against the judgment, dated 4-7-1995 passed by the learned Sessions Judge, Mandi Bahauddin, whereby he has convicted them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter called as the said Ordinance, and sentenced them to three years' R.I. Each, whipping numbering 30 stripes each and a fine of Rs,3,000 each or in default of payment of fine further six months R.I. Each. The benefit of section 382-B, Cr.P.C. Has been extended to them. Criminal Revision bearing No,30/I of 1995 has also been preferred against the aforementioned judgment wherein it has been prayed that the sentences awarded to the above appellants/accused may be enhanced for committing Zina-bil-Jabr with the petitioner. Since both the said appeal and revision arise out of one and the same judgment we are disposing of them by this single judgment.
2. Briefly stated it is the case of prosecution as recorded on 2-10-1992 on the statement of Mst.
Razia in Exh.P.A. That on 30-9-1992 at evening time she went to Bajra field for easing herself. When she entered the Bajra crop Anara and Saifullah alias Puhullu also entered after her therein and forcibly putting her on the ground subjected her to Zina-bil-Jabr. She raised hue and cry which attracted Qadar and Azam to the spot. On seeing them the accused ran away. On return of her parents from village Bosal on 2-10-1992 she reported the matter to police and her statement Exh.P.A. Was recorded. The same statement was incorporated into formal F.I.R. At Police Station Kuthiala Sheikhan. The appellants/accused was arrested on 13-10-1992. After necessary investigation both of them were challaned to face the trial.
3. At the trial the prosecution examined eight witnesses in all. P.W. Muhammad Azam and P.W.2 Ghulam Qadar are the alleged eye-witnesses who were declared hostile. P.W.3 is Mst. Razia she is the complainant who reiterated her statement as mentioned hereinabove. She was medically examined. P.W.4 is Asmatullah, A.S.-I. He recorded Exh.P.A. On the statement of Mst. Razia and sent the same for registration of formal F.I.R. He investigated the case. On 13-10-1992 he arrested the appellants/accused in this case and subsequently got them challaned through the S.H.O.
Concerned. P.W.5 is Shabbir Hussain, Constable. On 12-10-1992 he received a sealed phial and a sealed envelope and on 13-10-1992 he transmitted the same to the office of Chemical Examiner.
P.W.6 is Dr. Shafique Ahmad, Medical Officer. On 13-10-1992 he medically examined both the appellants/accused and found nothing to suggest that they were incapable to do sexual intercourse. P.W.7 is Muhammad Walayat, constable. He is a formal witness. He certified that Mazhar Ali, M.H.C. Who summoned vide Exh.P.E. For his service was informed to be dead. P.W.8 is Sajjad Hussain. He identified M.L.R. In respect of Mst. Razia having been conducted by lady Dr. Mubashra Anwar, since gone abroad, as he had worked with her at D.H.Q. Hospital Mandi Bahauddin. Report of the Chemical Examiner Exh.P.G. Tendered in evidence reveals that the swabs were stained with semen.
4. Both the appellants/accused made statements under section 342, Cr.P.C., wherein they denied the allegations and pleaded innocent. In reply to question No,5 Anara appellants/accused made a statement in the following words:-- "The house of Manzoor father of Razia Bibi does not have a path directly connected with the main road from his house. When the house of Anara and Saifullah accused are situated on the main road. Manzoor Ahmad had been demanding a path to connect his house with the main thoroughfare. On our refusal I have been falsely implicated alongwith co-accused in this case. I am innocent."
' He declined to make a statement on oath. He produced affidavit Exh.D.A. Furnished by Mst. Razia and order of the Court Exh.D.B. The appellant/accused Saifullah also made a similar statement.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellants submitted that the two prosecution witnesses have not supported the version of the prosecution and there is only one solitary statement of Mst.
Razia complainant against the appellants/accused but she is not worthy of any credence as she herself had appeared before the learned Additional Sessions Judge at bail stage and had made a different statement than that she made at the time of trial. He also submitted that the appellants/accused had been falsely implicated in the case on account of mala fide and ulterior motives. Learned counsel for the complainant on the other hand contended that the complainant was a virgin girl and had no motive to falsely involve the appellants/accused by putting her honour at stake. Learned counsel for the State supported the impugned judgment.
6. In the light of submissions made by the learned counsel for the parties we perused the entire record. It transpires that the case of prosecution mainly rests on the statement of P.W.3 Mst. Razia who stated that she was subjected to Zina-bil-Jabr by the appellants/accused on 30-9-1992 in evening time in a Bajra field situated at a distance of one acre from her house. She reported the matter to police on 2-10-1992. The reason given by her for delay is that her father had gone to village Bosal and after his arrival she narrated the incident to him and reported the matter to the police. Her father Manzoor has not appeared. She was medically examined by lady Dr. Mubashra Anwar on 4-10-1992. It is not known why it took further two days to get her medically examined and that too at D.H.Q. Hospital Mandi Bahauddin and not at Rural Health Centre Kuthiala Sheikhan. The said lady doctor who medically examined her had gone abroad, therefore, she could not be produced as a witness. Her signatures on the M.L.R. Were, however, identified by P.W.8 Sajjad Hussain Dispenser. It is strange that the M.L.R. Exh.P.F. Shows her medical examination at Rural Health Centre Kuthiala Sheikhan but with overwriting on the date of her examination. P.W.4 Asmatullah, A.S.-I. Who got her medically examined deposed that Mst. Razia was got medically examined on 4-10-1992 from Civil Hospital Mandi Bahauddin as the lady doctor was on leave on 2- 10-1992 and she could not be examined on the same day. However, P.W.3 has admitted in cross- examination that she was medically examined on the same day. This confusion has not been clarified by the prosecution witnesses. Zulfiqar H.C. Who had accompanied Mst. Razia to Mandi Bahauddin on a vehicle had verbally informed P.W.4 that lady doctor was not available in the hospital at that time and they came back at 11-30 p.m. From the hospital on foot and met him at Gauhar Chowk. The said Zulfiqar H.C. Had not been produced. The two alleged eye-witnesses namely Muhammad Azam P.W.1 and Ghulam Qadar P.W.2 who had seen accused at the time of occurrence have not supported the pro'secution version and have been declared hostile. No,They were subjected to cross-examination but nothing fruitful to the prosecution had been adduced. We are left with only the statement of Mst. Razia. No,Her version is although corroborated by M.L.R.
Exh.P.F. But the abovementioned confusion makes it a doubtful document. The Chemical Examiner's Report based on this M.L.R. Also loses its sanctity. The affidavit Exh.D.A. Made by the complainant before the learned Additional Sessions Judge, Gujrat and the order, dated 12-12-1992 passed by him, relied upon by the appellant/accused, also reveal that the statement made by her before the learned trial Court was different from the aforementioned one, Exh.D.A., which was made a base for release of the appellants/accused on bail. The contents of affidavit shows that the alleged occurrence took place at night in a Bajra field and she could not recognise the accused and that she had named Anara and Phullu as the accused in F . I . R. On account of suspicion and in fact Zina was committed by some other person. The learned Additional Sessions Judge, Gujrat observed that she is present in Court and on his question had affirmed that she had given this affidavit. These documents have further made the prosecution case highly doubtful.
7.
7. In view of the aforementioned reasons, consequently, we extend the benefit of doubt to the appellants/accused namely Anara son of Ali and Saifullah alias Phullu son of Nazar Muhammad and allow their appeal. We set aside their conviction and sentences recorded on 4-7-1995 by the learned Sessions Judge, Mandi Bahauddin and acquit them of the charge. They are on bail. Their bail bonds stand discharged. As a consequence of acceptance of this appeal the revision for enhancement of sentences is dismissed.