' This appeal jointly filed by Kamran Shahzad son of Muhammad Yousaf and Muhammad Wajid son of Muhammad Younis is directed against the judgment dated 18-6-2001 whereby he has convicted each under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them to ten years' rigorous imprisonment each. The benefit of section 382-B, Cr.P.C. Has been extended to them.
2. Briefly stated the case of prosecution as disclosed in F.I.R. Recorded on the statement of Mst.
Zarina Parveen at Police Station, Dina on 3-5-2000 at 12-55 p.m. Is to the effect tnat on the preceding night she had gone to attend marriage ceremony of her friend Shagufta to her house.
Since the water pump therein was unserviceable, she went to the house of Muhammad Younis to take water. In the said house Wajid Hussain and Muhammad Kamran were standing. While Kamran put his hands on her mouth, Wajid Hussain lifted up from her legs and took her to the vacant plot behind the house of aforementioned Muhammad Younis where they committed Zina-bil-Jabr with her one after the other. In the meanwhile, her mother Sughra Begum, Haq Nawaz and Ejaz came there. On seeing them Wajid Hussain and Muhammad Kamran took their Shalwars and ran away.
She was taken by her mother and said Haq Nawaz and Ejaz to the house of Muhammad Younis where her mother complained to Muhammad Younis that his son and nephew had committed Zina with her daughter. However, Muhammad Younis turned them out of his house and thereafter her mother brought her to the house. Since no transport was available at night, her mother telephonically informed her father Taj Muhammad from Dina. On his arrival she reported the matter to police. Subsequently both the appellants/accused were arrested and after completion of formalities challaned to face the trial. They were formally charged on 28-2-2001. They did not plead guilty, therefore, they were tried.
3. At the trial prosecution examined nine witnesses in all. P.W.1 is Muhammad Aslam, Head Constable. He kept the sealed envelope connected with this case, handed over to him by Khadim Hussain, S.I. On 3-5-2000, in safe custody and handed over the same to P.W.2 Liaqat Ali, Constable on 8-5-2000 which was dePerecl to the office of Chemical Ekaminer, Rawalpindi on the same day.
P.W.2 Liaqat 1 Ali besides handing over the said parcel is also a marginal witness to the recovery memo. Exh.P.A whereby $halwar and shirt which were recovered by Muhammad Wajid from an iron box of his residential house, were taken into possession. P.W.3 is Mst. Zarina Parveen. She is the complainant who reiterated her statement as mentioned hereinabove. P.W.4 is Dr. Shaukat Mel.
Mood. He medically examined both the appellants f it potency and found them fit to perform sexual intercourse. P.W.5 is Mst. Sughra Bibi. She is mother of complainant and also an eye-witness of the occurrence. She has supported the case of prosecution. P.W.6 is Munib Iqbal, A.S.I. He arrested Kamran Shahzad. P.W.7 is Muhammad Akram, Head Constable. On 3-5-2000 he accompanied Mst.
Zarina Parveen to DHQ Hospital, Jhelum. After her medical examination the Woman Medical Officer handed over to him a sealed envelope alongwith medico-legal certificate which were produced by him before the Investigating Officer who took the same into possession vide memo. Exh.P.E attested by him. P.W.8 is Lady Dr. Sheeba Akram Hashmi. She medically examined Mst.. Zarina Parveen on 3- 5-2000. She made the following observations:-- "Upon examination, I found that she was a young girl well-oriented in time and space. Secondary sex characters were very developed. No marks of violence was present anywhere on her body.
Hymen was torn and healed. It admitted my two fingers. Uterus was, of normal size."
' She took three vaginal swa bs for chemical examination and after receiving a positive report in that respect she opined that she was subjected to sexual intercourse. P.W.9 is Khadim Hussain, S.I.
He recorded statement Exh.P.B made by Mst. Zarina Parveen before him on 3-5-2000. He got her medically examined. He recorded statement of P.Ws. Prepared site plan of the occurrence and conducted search for the accused who were Army personnel. He proceeded to Quetta for arrest of Muhammad Wajid, appellant/ accused who was handed over to him on . 19-5-2000 while in police custody Muhammad Wajid led to the recovery of his Shalwar and shirt from his house on 22-5- 2000 which were secured by him vide memo. Exh.P.A. On 17-5-2000 Munib Iqbal, A.S.I arrested Kamran Shahzad. Both the appellants/accused were medically examined. Finding the accused involved in this case challan was submitted in the Court.
4. The appellants/accused made statements under section 342, Cr.P.C. Wherein they denied the allegation and pleaded innocence. Responding to question No,9 Kamran Shahzad, appellant/accused made a statement in the following words:-- "I along with Wajid Hussain have been falsely involved in this case at the instance of Ijaz P.W. Ijaz P.W. Is maintaining deep relations with the family of Zarina Parveen and others. A false case has been got registered. After the registration of case Ijaz P.W. Has fled away from the scene so that it may not be proved that Zarina Parveen and her mother are instrumental in the hand of Muhammad Ijaz. Ijaz is my bitter enemy."
' He declined to make a statement on oath or produce any evidence in defence. In reply to Question No,10 the appellant/accused Wajid Hussain made a statement in the following words:- "I have been falsely involved in this case. I am having bitter enmity with Muhammad Ijaz P.W. Mst.
Zarina Parveen and Sughran Bibi are instrumental in the hand of Muhammad Ijaz. After the registration of case Muhammad Ijaz has no courage to appear as a witness. Case is false. I never committed Zina with Mst. Zarina Parveen."
' He declined to depose on oath or produce evidence in defence.
5. I have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that P.W.3 Mst. Zarina Parveen, complainant/victim- is a star witness of the case. Her mother Mst. Sughra Begum who is stated to be an eye-witness has also appeared as P.W.S. While one of the other alleged witnesses, Ijaz, has not appeared, Haq Nawaz has been given, up as being won over. The said Haq Nawaz is a first paternal cousin of the complainant. Therefore, this case mainly rests on the statements of P.W.3 and P.W.5. However, their statements do not inspire confidence required for maintaining conviction in an offence of this heinous nature. One of the glaring contradiction that strikes mind as reflected in the statement of P.W.5 is about the Shalwar of Mst. Zarina Parveen. While Mst. Zarina herself made no mention of the same neither in the F.I.R., which was recorded with considerable delay nor in her statement before the learned trial Court, her mother mentioned that on seeing them, Kamran and Wajid accused lifted up their Shalwars and also lifted up Shalwar of Mst. Zarina Parveen and fled away. This factum is so pertinent that Mst. Zarina would herself have never forgotten to highlight. The said Shalwar of Mst. Zarina was never recovered. Another pertinent feature that creates confusion is about the place of medical examination. The record reveals that Mst. Zarina was medically examined by P.W.8 Lady Dr. Sheeba Akram Hashmi in DHQ Hospital, Jhelum. P.W.7 Muhammad Akram, Head Constable who accompanied Mst. Zarina also makes a deposition to the same effect. However, Mst. Zarina Parveen herself deposed that she was subjected to Medico-Legal Examination at R.H.C., Dina. The time of her medical examination being evening time is also worth-noticing. Regarding her clothes which were worn by her at the time of occurrence were left by her at her house and were not produced before the Investigating Officer as, according to her, she had washed the clothes. Strangely she stated that she had washed the clothes on the same evening when her statement was recorded and, that too, in her absence, when she along with her parents had gone to Police Station, Dina. It may be mentioned again that according to P.W.5, her mother, the accused had lifted up Shalwar of Mst. Zarina Parveen and fled away. Moreover, it is also pertinent to mention that according to P.W.3 her hands were tied down under the mango tree with her Dopatta and her mouth was tied with a cloth 'which was in possession of the accused -but according to P.W.5 when she saw Mst. Zarina neither her mouth was in tied condition nor her hands were found so. P.W.3 has stated that she had got scratches on her elbows and knees and that blood also oozed out from her private part when she was subject to Zina-bil-Jabr. She has added that she had not washed her private part and her body after the occurrence and that her thighs and private parts were also stained with dirty matter and she had shown and narrated the same to Woman Medical Officer.
Medico-Legal Report submitted by P.W.8 makes no reference to the same. She found no marks of violence present anywhere on her body. She also found that her hymen was torn and healed and admitted two fingers. In cross-examination the woman Mcdical Officer has stated that examinee was a habitual lady. Needless to say that at the time of her medical examination Mst. Zarina Parveen was hot a married lady. P.W.5 Mst. Sughra Bibi has been cross-examined and confronted with her statement Exh.D.A wherein more than half a dozen discrepancies have been highlight. In view of these obvious contradictions and discrepancies it would not be safe to maintain conviction and sentences of the appellants/accused on such a serious ch rge. Learned counsel for the State was also unable to defend the impugned judgment.
6. Consequently for the reasons tated above, I allow this appeal, set conviction and sentences of appe aside lants Kamran Shahzad -son of Muhammad Yousaf and Muhammad Wajid son of Muhammad Younis recorded by learned Sessions Judge, Jhelum vide his judgment dated 18-6- 2001 and acquit them of the charge. They are confined in jail, they shall be released forthwith if not wanted in any other case