' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference 14 of 1998 and Criminal Appeal No,46 of 1998 which was filed by Muhammad Akhtar and Abdul Majeed, who were convicted and sentenced by Special Judge, Special Court Anti-Terrorism, Bahawalpur-1 on 10-11- 1998. They were convicted and sentenced as under:- ' Under section 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, 7 years' R.I. Each with thirty stripes each with a fine of Rs,10,000 (ten thousand) each, in default six months' S.I.
' Under section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (amended) death sentence each.
2. Report Exh.P.B. In this case was lodged on 4-4-1998 by Muhammad Rafique P.W.2, father of Mst.
Saima, the alleged prosecutrix about an occurrence which took place 20/21 days prior to the lodging of F.I.R., and the formal F.I.R. Was registered on the same day i,e,, 4-4-1998 at 11-15 p.m. In Police Station "B" Division, Rahimyar Khan under section 10/11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. Briefly stated, the facts of the prosecution case as narrated in the F,I.R., lodged by Muhammad Rafique P.W.2 were that he used to sell Ice Cream at a hand-cart (Rehri) at Adda Gulmerg. He had four sons and two daughters. The eldest daughter namely Mst. Saima was aged 14/15 years while the younger one was Mst. Fauzia aged about 10/11 years. It was further stated by him that 20/21 days ago his daughter Mst. Saima had disappeared at 8-00 p.m. On Friday from his house. He had been searching for her. On 4-4-1998 he came to know that his daughter Mst. Saima was enticed away by Muhammad Akhtar son of Sher Muhammad for committing Zina and was being confined in Liaqatpur with one Liaqat. It was further stated that Muhammad Yousaf son of Ghulam Muhammad and Muhammad Amin son of Muhammad Jameel P.Ws. Used to see Muhammad Akhtar talking and chatting with Mst. Saima. It was further stated that Muhammad Akhtar etc. Had abducted Mst. Saima in order to commit Zina with her.
4. After registration of the case Mst. Saima was recovered by Muhammad Hanif, A.S.I. (P.W.10) from a house situated in Haji Muhammad Colony, Rahimyar Khan. Mst. Saima was medically examined by Lady Doctor Fauzia Rashid on the same day. The Investigating Officer also recorded the statements of witnesses under section 161, Cr.P.C. Lady Doctor Fauzia Rashid handed over the sealed envelope to A.S.I. Who handed over the same to Moharrir of Police Station B-Division, Rahimyar Khan. He arrested Muhammad Akhtar and Abdul Majeed appellants on 19-4-1998 and both of them were medically examined about their potency by Dr. Muhammad Qasim, C.M.Q. Sh.
Zaid Hospital, Rahimyar Khan (P.W.9) and he found both the appellants potent. His reports in this regard are Exh.P.D. And Exh.P.E.. Respectively. There is report of Chemical Examiner which is Exh.PA/1, according to which the swa bs taken from the vagina of Mst. Saima were not stained with semens.
Challan against the appellants was submitted before Special Court Anti-Terrorism, Bahawalpur-1, who recorded the statements of 10 witnesses and thereafter, he recorded the statements of both the appellants under section 342, Cr.P.C., and then after finding them guilty convicted and sentenced them as mentioned above.
5. Learned counsel for the appellants submits .That the case against the appellants is totally false, that there is no evidence of Zina against the appellants, that the appellants have been falsely implicated in this case, that except the bare statement of Mst. Saima, there is no corroborative evidence of Zina against the appellants, that the report of Chemical Examiner is negative in nature.
Learned counsel for the appellants has also laid a great stress on the evidence of Lady Doctor Fauzia Rashid, who had medically examined Mst. Saima. He submits that no case whatsoever is made out against the appellants.
6. On the other hand, learned State Counsel supports the judgment of the learned trial Court.
7. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case, there is delay of 20/21 days in lodging the FIR., without any plausible explanation. Both Muhammad Yousaf and Muhammad Amin P.Ws. Had stated before the trial Court that Muhammad Akhtar appellant with whom the son of the complainant was employed, used to come to the house of the complainant and both of them i,e,, Mst. Saima and Muhammad Akhtar used to chat with each other and this happened many a times.
Muhammad Yousaf further stated that Muhammad Akhtar appellant used to come to the house of the complainant daily, although, Muhammad Yousaf came to know about the abduction of Mst.
Saima 3/4 days after the occurrence but he did not report the matter to the police nor he asked the complainant to report the matter to the police. He further stated that he did not see Mst. Saima going along with the appellants. He also stated that he did not see any residents of the Mohallah with the complainant making search for the abductee. Then comes the statement of Muhammad Amin P.W. He also stated that Muhammad Akhtar appellant used to visit the house of the complainant daily and he saw both Mst. Saima and Muhammad Akhtar appellant making conversation with each other in a suspicious manner and he also brought this fact to the notice of Muhammad Rafique complainant. All these facts show and prove that Mst. Saima was not abducted by Muhammad Akhtar appellant but she had eloped with him, according to her own freewill. In this regard statement of Lady Doctor Fauzia Rashid is very important, who had conducted the medical examination on the person of Mst. Saima. Her statement is given below:--- External Examination ' No mark of violence seen anywhere on body. Secondary sex character well-developed.
Internal Examination ' Vulva, vagina healthy. Hymen absent. Ut: size normal. Three vagina swabs were taken and sent to the Chemical Examiner, Multan.
' Opinion ' The female is not virgin, however, the occurrence of fresh intercourse will depend upon the Report of Chemical Examiner.
7. After the perusal of the above said statement it is proved that Mst. Saima was aged about 17/18 years. She was not virgin, hymen was absent, no mark of violence was seen on her body. The lady Doctor further stated that about fresh intercourse she will depose after the Report of the Chemical Examiner. On Court question lady doctor replied that vagina of Mst. Saima admitted two fingers easily, her hymen was absent and was torn old. The statement of lady doctor Fauzia Rashid would show that character of Mst. Saima was not up to mark. In spite of the fact she was an unmarried girl aged about 17/18 years, she was not virgin, her vagina admits two fingers easily. The Report of Chemical Examiner Exh.P.A./1 shows that swabs taken from the vagina of Mst. Saima were not stained with semens. There is not an iota of evidence which corroborates the version of Mst. Saima, the alleged prosecutrix. No case is made out against the appellants. While extending the benefit of doubt, we accept this Criminal Appeal and acquit both the appellants from all the charges.
Conviction and sentence awarded to the appellants is set aside. Murder reference is replied in the negative and death sentence is not confirmed. Both the appellants shall be released forthwith, if not 'required in any other case.