' This appeal under section 25 of Anti-Terrorism Act, 1997, is directed against the judgment, dated 23-2-2001 passed by Mr. Riaz-ul-Hassan Alvi, Special Judge, Anti-Terrorism Court No,II, Multan whereby he convicted the appellant in case F.I.R. No,271 of 1999, dated 10-10-1999 registered under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Jalilabad and sentenced him to 25' years' R.I. And whipping numbering 30 stripes. The benefit of section 283-B, Cr.P.C. Was, however, extended to the accused.
2, Brief facts of the case are that on 10-10-1999 at 10-00 a.m., Mst. Razia Sultana (P.W.3/complainant) was present in her house and busy in work. Her husband Mukhtiar Shah (P.W.4) had gone to city in connection with some work. Her daughter. Mst. Nadia went to play outside the house. When Mst. Nadia did not come to the house after considerable time, the complainant went Out of, the house in order to search her. In the meantime, her husband and brother namely Mukhtiar Shah (P.W.4) and Abdul Latif (P.W.5) respectively also reached there and joined her in search of Mst. Nadia. When they reached near the house of Muhammad Yaseen/appellant, they heard the noise of weeping upon which they entered the said house. On entering the room, they saw Yaseen committing Zina-bil-Jabr with Mst. Nadia, who fled away from the spot on seeing them. The blood was oozing from the vagina of the victim. She disclosed that Muhammad Yaseen had committed Zina-bilJabr with her. The complainant lodged the report with the police which was read over to her and she thumb-marked the same in token of its correctness.
The victim was medically examined and vaginal swabs were taken. She was referred to Gynaecologist for expert opinion. Subsequently, the accused was arrested and medically examined to ascertain his potency. Report of vaginal swabs (Exh.PB) was received which was positive. The blood-stained clothes of Mst. Nadia were taken into possession vide memo. (Exh.P.E.).
Site plan of the place of occurrence (Exh.P.F.) was also prepared. Accused was forward guilty during investigation and challaned. After framing of charge, he pleaded not guilty, whereafter, the prosecution was called upon to produce its evidence.
3. Lady Dr. Moona Munir Awan (P.W.1) deposed that on 10-10-1999 at 5-00 p.m. She medically examined Nadia Hassan aged about 9 years who was brought before her by Tariq, A.S.-I: of Police Station Jalilabad. Her observations were as. Under:--
(1) She was young girl with average built and height.
(2) Breast not developed (3)Axillary and pubic hair were thin.
(4) No mark of injury on leg and arms seen.
' P.W.1 also deposed that two blood stained vaginal swabs were taken, whereas, the victim was referred to Gynaecologist for expert opinion. She kept the result pending till the receipt of report from the Gynaecologist and report of the Chemical Examiner. According to P.W.1, the probable duration of injury was within one day. Exh.PA is the correct carbon copy of the original medico-legal report which is in her handwriting and bears her signatures.. She further deposed that in view of report of Gynaecologist (Exh.PA/2) and report of the Chemical Examiner (Exh. PB), the victim was subjected to sexual intercourse. Exh.PA/1 is the request by the police for medical examination of the victim by the police also bears her signatures. She was cross-examined by the defence but nothing favourable to the accused could be gained from her.
5. Dr. Muhammad Bakhsh (P.W.2) is a formal witness who examined Yaseen accused on the point of potency. According to said P.W., the accused was found capable to perform sexual act.
6. Mst. Razia Sultana (P.W.3) is complainant of this case. She has reiterated the version, set up in the F.I.R. She is eyewitness of the occurrence besides her husband and brother.
7. Mukhtiar Shah (P.W.4) father of the victim has supported the prosecution version in his examination-in-chief. He is also witness of recovery of clothes of the victim which were taken into possession vide memo. (Exh.PE). During cross-examination, he stated that when they entered the room of occurrence, a young boy emerged from the said room; that he could not identify the boy as Yaseen accused, that Thanedaar had asked him to identify the accused at the Police Station. He affirmed the conents of his statement (Exh.DA). He admitted that he had not seen Yaseen accused while committing Zina-bil-Jabr with his daughter. He further admitted that Yaseen was not accused in the instant case.
8. Abdul Latif (P.W.5) who is maternal uncle of the victim has supported the prosecution version in his examination-in chief, recorded on 9-10-2000 but contradicted it during cross-examination which was recorded on 16-11-2000. During cross-examination, he admitted that he had seen the accused only from the back aside, therefore, could not identify him at the place of occurrence. He further deposed that after 2/3 days of the occurrence, Thanedaar showed him Yaseen accused and he told the Thatiedaar that he was not the actual culprit but Thanedaar told him that Yaseen was the real accused. He also stated that the statement made by him in examination-in-chief earlier was tutored to him by the Thanedaar.
9. Mst. Nadia/victim of the instant case appeared as P.W.6. She was a minor aged about 10 years, therefore, certain questions, were put to her to test whether she was intelligent enough to understand the sanctity' of oath and thereafter, her statement was recorded. She deposed in her examination-in chief that Yaseen alias Mithu gave her sweets and asked her for follow him and he would serve her Dahi Bhallay; that the accused was previously known to her, so she trusted and followed him; that the accused took her to his house; that other inhabitants of the house were not present; that there he put off her Shalwar and he also became naked and then. Committed Zina- bil-Jabr with her; that he tied her mouth with handkerchief; that she raised alarm; that her mother, father and uncle reached at the spot; that door of the room was shut but it was not bolted from inside; that she was medically examined in Nishtar Hospital, Multan; that her Shalwar and shirt became blood-stained at the time of occurrence which were handed over to her father. She has also changed her version during cross-examination and exonerated the accused saying that the accused who committed Zina-bil-Jabr with her was someone else who was tall one, having beard.
She also deposed that she involved Yaseen in this case on asking of Thandedaar, that Thandedaar had sent some constables to bring her to the Court for her statement. She also conceded that the accused present in the Court was not the actual culprit.
10. Muhammad Ilyas/A.S.-I. (P.W.7) deposed that on 10-10-1999, he was posted as Moharrar of Police Station Jalilabad; that on the same day, Muhammad Ashraf/Constable handed over to him a sealed parcel which he kept in safe custody in Maalkhana; that on 18-10-1999, he handed over the said parcel to Allah Ditta/Constable for onward transmission to the office of the Chemical Examiner.
11. Muhammad Tariq/A.S. -I. (P. W .8) is the Investigating Officer of this case. He deposed that on 10- 10-1999, he was posted as at Police Station Jalilabad when Mst. Razia Sultana/mother of Mst. Nadia appeared before him; that he recorded her statement (Exh.PD) which was read over to her, which she thumb-marked in token of its correctness and the formal F.I.R. (Exh. PD/1) was recorded; that he effected the recoveries, prepared the site of the place of occurrence, recorded statements of victim and the P.Ws., got medically examined the victim; arrested the accused, found him guilty and challaned him.
12. Muhammad Ashraf (P.W.9) is a formal witness who took blood-stained clothes of the victim vide recovery memo. (Exh.PE) and signed the recovery memo. Allah Ditta/Constable (P.W.10) is another formal witness, who was handed over sealed parcel for its onward transmission to, the Chemical Examiner.
13. Lady Dr. Azra Jafferi/ Gynaecologist, Nishtar Hospital, Multan (P.W.11) deposed that on 11-10-1999 while she was posted in Civil Hospital, Multan, Nadia Hassan/victim was referred to her by D:.
Moona Munir for her expert opinion; that she examined her and found that there was first degree perineal tear on vaginal examination at medial position; that blood staed di' charge was present and hymen was He report (Exh.PA/2) on medical (I.(h.PA) is in her hand writing and theirs he signatures.
14. Abdul Aziz/S.I. (P.W.12) deposed that on 10-10-1999 while he was posted at Police Station Jalilabad, on receipt of complaint (Exh.PD), he recorded formal F.I.R. Exh.PD/1) without any omission or addition.
15. Learned D.D.A. 'tendered in evidence report of the Chemical Examiner and closed the evidence.
Statement of the accused was recorded under section 342, Cr.P.C. Wherein, he decied' the prosecution persion. He refused to appear as his own witness under section 340(2), Cr.P.C., he tendered in his evidence certain docaments to Exh.DH/2).
16. 'Cll. Pervaiz Aftab, Advocate/learned counsel for the appellant contends that victim the self besides her father and maternal uncle witnesse; of the occurrence admitted in s-exanviation that the appellant had not committed Zina-bil-Jabr with her and it was some other boy who committed the offence and he ran away when the P.Ws. Entered the room where the occurrence took place; that in view of admission of victim and afore-referred eye-witnesses, it would not be safe to convict the appellant on the basis of their deposition, made in examination-in-chief; that the appellant had not committed Zina with her; that the prosecution case is contradicted by its own witnesses and as such, the accused is entitled to acquittal.
17. Learned counsel for the State has supported the conviction of the appellant/accused .
18. Heard. Record perused.
19. The prosecution case rests on the evidence of Mst. Razia Sultana (P.W.3) Mulditiar. Shah (P.W.4), Abdul Latif (P.W.5) who are mother, father and maternal uncle of the victim Mst. Nadia (P.W.6) besides her own statement.
20. Mst. Razia Sultana stated in her cross-examination that the moment, they (P.Ws.) entered the main door of the house of Yaseen appellant from the main door; that the moment they entered, the accused ran away from the spot; that she found her daughter lying on the bed; that the room where her daughter was found lying, was dark and there was no source of light. P.W.3 has supported the prosecution case in his examination-inchief as well as during cross-examination but her husband (P.W.4) contradicted her during his cross-examination. He stated that the moment, they (P.Ws.) entered the room of occurrence, a young boy emerged from the dark room; that he could not identify the accused at the spot as he ran away immediately after their entrance to -the said room; that he and Abdul Latif chased that boy but he disappeared in the street; that they could only see backside of that boy; that he could not identity the said boy as Yaseen accused present in the Court; that he, his wife (P.W.3) brother-in-law (P.W.5) and daughter (P.W.6) met the Thanedaar near Aziz Hotel Chowk; that the Thanedaar himself prepared his statement nominating Yaseen appellant as responsible for the crime; that he explained to Thanedaar that even at the spot, he could only see the boy while running from his backside; that he had correctly stated in Exh.
DA that he himself had not seen Yaseen accused while committing Zina-bil-Jabr with his daughter as he was not present at the place of occurrence. He categorically stated that Yaseen was not responsible for the crime. He also deposed that he was compelled to record his examination-in- chief by the Thanedaar which was recorded on 9-10-2000.
21. Abdul Latif (P.W.5) admitted in cross-examination that since he had seen the accused from the backside, could not identify him at the place of occurrence. He further stated that he had not seen accused, present in the Court, running out of room of occurrence; that he had told the Thanedaar that Yaseen was not accused who committed Zina-bil-Jabr with Nadia; that on his asking from the victim, she told him that another body, already sitting in the room had subjected her to Bura Kaam; that Mst. Nadia specifically told to the eye-witnesses that Yaseen accused was not responsible for Bura Kaam with her; that he had requested the Thanedaar to trace out the real culprit but he refused saying that he had to perform other jobs also. He also deposed that his statement (examination-in-chief) which he had earlier made in the Court on 9-10-2000 was tutored to him by the Thanedaai.
22. The victim of the instant occurrence Mst. Nadia (P.W.6) also supported the prosecution case during her examination-inchief but during cross-examination, she deposed that when she was taken to the room of occurrence, another boy was already sitting there; that the room of occurrence was dark; that the said boy had committed Zina with her while removing her Shalwar, that Yaseen accused was not present at the place of occurrence at that time nor he committed any Burai with her; that before reaching of her parents and maternal uncle at the place of occurrence, said boy had run away from there. She also stated that in the previous statement (examination-in-chief recorded on 9-10-2000), she named present accused on asking of Thanedaar, that the Thanedaar interrogated her and nominated accused present in the Court as responsible for Burai. She further stated that the accused present in the Court was nct the same boy who had subjected to Burai. She has given description of the body who committed rape with her. According to her, he was a tall boy having beard. She has specifically stated in cross- examination that the appellant had not committed Zina-bil-Jabf with her. The statement of the victim is of paramount importance and she has exonerated the appellant from the commission of offence.
23. The statement of P.Ws. 4, 5 and 6 are divergent from the statement of P.W.3. In fact said P.Ws.
Have supported the defence plea that victim/P.W.6 was subjected to Zinabil-Jabr by some other boy. The victim as well as her father and maternal uncle, during cross-examination disowned their examination-in-chief and blamed that the police had substituted the appellant for the actual accused, responsible for the crime. They have specifically admitted the defence plea that the boy who committed the offence was someone else who was not traced out during the investigation.
The examination-in- chief of said P.Ws. Were recorded on 9-10-2001 while they were cross- examined on 16-11-2000. They supported the prosecution case as set up in the F.I.R. In their examinations-in-chief but during cross-examination, they have taken a complete summersault and resiled from it. The evidence of such witnesses is insufficient to convict the accused. It would not be safe to convict the accused when the victim herself as well as her father and maternal uncle have stated that he is not guilty of the alleged crime.
24. From the above discussion, it seems that the prosecution case is not free from doubt and as such, the appellant is extended the benefit of doubt and acquitted of the charge. This appeal is accepted. The conviction of the appellant is set aside. He shall be released forthwith if not required any other case.