MUHAMMAD AKHTAR SHAHID SIDDIQUI, J.---Shahid aged 25 years, Muhammad Ali alias Dhali, aged 17 years, Iftikhar Ahmad, aged 16 years, and his brother Khan Sher, aged 18 years were tried by the learned Special Judge, Anti-Terrorism, Sargodha Division, Sargodha, under section 10 (4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 7 of the Anti-Terrorism Act, 1997, in case F.I.R. No,522, dated 12-12.1998, Police Station Bhalwal, District Sargodha. The F.I.R.
(Exh.P.A/1) is based on the statement of Muhammad Bashir. (P. W. I), the husband of Mst.Shahnaz (P.W .2) and father of Mst. Shahida Perveen (P.W.3), recorded by Gul Muhammad Khan (P.W.9), on 12-121998 at 10-00 a.m., when he was on patrol duty at Bhehra-Bhalwal Chowk. Muhammad Bashir (complainant), a resident of Mauza Ahli, Bhalwal. According to the F.I.R., he was sleeping in his Dhahri on the night between 10/11-121998. Muhammad Nawaz and Muhammad Hayat (P.Ws.) of the same Village were also sleeping with him in the same Dhahri, while his wife Mst. Shahnaz and daughter 'Mst. Shahida Perveen were sleeping in the adjacent room, which was bolted from inside.
At about 11-30 p.m., Shahid accused armed with a dagger accompanied by Muhammad Ali armed with a 'Khanjar' and Khan Sher armed with a Sota gave a knock whereupon Mst. Shahnaz opened the door. It is alleged that all the four accused started committing Zina-bil-Jabr with Mst. Shahnaz and Mst. Shahida Parveen, who raised alarm, which attracted the complainant and two abovesaid P.Ws to the scene of occurrence. On seeing the P.Ws. the accused fled away with their respective weapons.
2. Gul Hamid, S.-I, (P.W.9) recorded the statements of the P.Ws. got both the victims medically examined and after completing the investigation submitted the challan.
3. On 24-1-2000, the learned trial Court formally charge-sheeted the accused, who pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses to bring home the charge against the accused.
4. The medical evidence has been furnished by Dr. Muhammad Ali Khan (P.W.6), and Dr. Ambreen Jehan (P.W.7). According to Dr. Ambreen Jehan Mst. Shahida Parveen and Mst. Shahnaz were produced before her on 12-12-1998 for their medical examination for rape. In both the cases, the vulva vagina was O.K. and the hymen was torn and healed. The vagina admitted two fingers. Three vaginal swa bs of Mst. Shahida Parveen and three vaginal swabs of Mst. Shahnaz were taken and sealed in separate bottles for the detection of the semen by the Chemical Examiner. She opined that both the said ladies had experience of sexual intercourse. In view of the Chemical Examiner's Report (Exh P H/2), she deposed that Mst. Shahida Parveen was subjected to sexual intercourse, whereas in view of Chemical Examiner's Report (Exh. P. K/1), she reported that sexual intercourse was not committed with Mst. Shahnaz. In cross-examination, she firmly stated that in view of her report (Exh.P.J), Mst.Shahida Parveen was not virgin at the time of medical examination. She opined that the hymen takes about one week to heal.
5. Dr. Muhammad Ali Khan (P.W.6), Medical Officer, who had examined Iftikhar Ahmad, Muhammad Ali, Shahid Rashid, accused, on 20-12-1998 and Muhammad Aslam accused on 25-12-1998 for potency test, opined that they were all physically fit to perform sexual act. He testified his Reports Exh.P.C., Exh.P.D., Exh.P.E., and Exh.P.G. In cross-examination, he admitted that he had not secured the semen for the purpose of grouping, which now-aday is possible.
6. Muhammad Bashir (P.W.1), Mst. Shahnaz (P.W.2) and Mst. Shahida have deposed about the occurrence. The prosecution has given up Muhammad Nawaz and Muhammad Hayat (P.Ws.), of the same village, who were also stated to have witnessed the occurrence. Muhammad Bashir (P.W.1), while narrating the occurrence, deposed that about 11-30 p.m., Shahid accused armed with dagger, Muhammad Ali alias Dhali accused armed with pistol, Iftikhar Hussain armed with dagger and Khan Sher armed with Sota. knocked at the door, upon which Mst. Shehnaz opened the door.
Khan Muhammad accused caught hold of her from her arms. She raised alarm upon which he, Muhammad Hayat and Muhammad Nawaz (P.Ws.) attracted to other place of occurrence and saw Khan Muhammad accused committing Zina-bilJabr with his wife Mst. Shahnaz on the cot and Shahid accused committing Zina-bilJabr with Mst.Shahida Parveen, while lftikhar Ahmad and Muhammad Ali remained standing and assumed the role of watchman in cross-examination, it transpired that he has improved his version at the trial when confronted with the contents of the F.I.R. (Exh.P.A).He admitted that he had not given the details in his earlier statement. He denied the suggestion that he had tutored his daughter and wife to falsely implicate the accused in this case.
7. Mst. Shahnaz (P.W.2) and Mst. Shahida Parveen (P.W.3), both stated that about one year three months and ten days ago, they were sleeping in their room when at about 11-30 p.m., there was a knock at the door. The lantern was on and lit. Mst. Shehpaz stated that she opened the door and. 'saw Shahid, armed with dagger; Muhammad Ali alias Dhali, armed with a pistol Iftikhar Ahmad, armed with dagger, Khan Sher, armed with a Sota. She alleged that Khan Sher accused caught hold of her and on her alarm, her husband Muhammad Bashir, Muhammad Hayat and Muhammad Nawaz (P.Ws.) came there. The accused threatened the P.Ws. and then Khan Sher caught hold of her. Both alleged that Khan Sher and Muhammad Ali accused committed Zina-bil- Jabr with Mst. Shahnaz while Mst. Shahida Parveen was subjected to Zina-bil-Jabr by all the four accused one by one.In cross-examination, these witnesses were confronted with their earlier statements recorded by the police under section 161, Cr.P.C. (Exh.D.A. and Exh.D.B.). It is evident that they introduced the lantern by way of improvement which according to them was on and lit at the occurrence. Both the P.Ws. in their statements (Exh.D.A. and Exh.D.B.) had stated that all the four accused committed Zina-bil-Jabr with both of them but their statements at the trial are to the effect that Mst. Shahnaz was subjected to Zina by Khan Sher and Muhammad Ali, accused.
8. The accused in their statements under section 342, Cr.P.C. denied the allegations and pleaded that Mst. Shahida Parveen and Mst. Shahnaz were not of good character who have made them the scapegoat in order to grab money.
9. Learned defence counsel, after taking us through the record, contended that the prosecution version is not fully supported by the medical evidence, that the prosecution version is highly improbable and the improvements made by the P.Ws. dishonestly coupled with the delay in the lodging of F.I.R. making the prosecution version highly doubtful.
10.The learned counsel for the State while supporting the conviction, pleaded that the P.Ws. have no motive to falsely depose against the accused.
11.We have given anxious consideration to the arguments advanced from both the sides and examined the record with utmost care and caution. It is evident from the record that the police station is at a distance of 4 kilometres from the place of occurrence. There is certainly a delay of 34 hours in lodging the F.I.R. Dr. Ambreen Jehan (P.W.7). did not find any mark of violence on any part of the body of Mst. Shahida Parveen, the alleged victim. The observations given by her in Exh.P.J. leads to an irresistible conclusion that Mst. Shahida Parveen was also used to sexual intercourse and her claim of being a virgin prior to the occurrence was false. In this view of the matter, the statement of a girl of dubious chastity cannot be accepted without independent corroboration, particularly in a case, which entails capital punishment.
12.Similarly, there was no mark of violence on any part of the body of Mst. Shehnaz. In the light of the report of the Chemical Examination (Exh.P.K/1), Dr. Ambreen Jehan (P.W.7), categorically B stated that Mst. Shehnaz was not subjected to Zina, as such, the statement of Mst. Shehnaz that she was subjected to Zina by Khan Sher and Muhammad Ali is not supported by medical evidence.
13. According to the prosecution story, Muhammad Hayat son of Maula Bakhsh and Muhammad Nawaz son of Sarja (P.Ws.) of the same village were also sleeping with Muhammad Bashir on the night of occurrence in the Dhahri and that they were also attracted to the scene of occurrence.
These witnesses have been given up by the prosecution as being unnecessary. The complainant and the two alleged victims omitted to explain the purpose of the stay of these given P.Ws. in the Dhahri on the night of occurrence. In the peculiar circumstances of the case, the prosecution appears to have withheld material witnesses, which creates serious doubt about the veracity of the prosecution version.
14. Except Shahid, who is 25 years of age, all other accused are between 16 to 18 years of age. It is also an admitted fact that Iftikhar Ahmad Khan and Khan Sher, accused, are real brothers.
Muhammad Bashir (complainant) is also young man of 35 years. The story of the prosecution that all the four accused committed Zina-bilJabr with Mst. Shahida and two of them committed Zina with Mst. Shahnaz, after the arrival of the P.Ws. in their presence appears to be improbable to some extent.
15. Dr. Muhammad Ali Khan (P.W.1), in cross-examination stated that he had not secured the semen for purpose of grouping, which is possible these days. In view of the law laid down by the Federal Shariat Court in the case of Mst. Ehsan Begum v. The State (PLD 1983 Federal Shariat Court 204), the prosecution should have sent the semen of the accused for grouping. In the absence of grouping test of the `semen in a 'case of gang-rape, it cannot be held with certainty that Mst. Shahida, who was found habitual to sexual intercourse, prior to the occurrence, .was subjected to Zina by the accused. The prosecution evidence cannot be safely relied upon to hold the accused guilty of a charge, which entails capital punishment.
16. In view of the above, we, as a measure of . abundant care and caution, allow benefit of doubt, to the appellants. We therefore, accept this appeal, set aside the impugned judgment of the trial court and acquit all the accused. They shall be set at liberty forthwith, if not required in any other case.
17. Murder Reference No,236-T of 2000 is answered in the negative.
Before parting with this judgment, we would like to reproduce the observations made by the Federal Shariat Court, in para. No,24 of the judgment, cited above:--- "24 Before parting with this case I would like to observe that the police investigation in this country is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina-bil-Jabr. The Police Officers in their reference to Medical Officers should also in such cases invariably request the Doctor concerned to take the specimen of the semen of the male accused. They should send them for chemical . examination and serology alongwith vaginal swa bs and clothes/cloth etc. having seminal stains."
We are constrained to observe that the directions contained in the above paragraph do not appear to have been followed by the concerned agencies despite the fact that the copies of the judgment were sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspector-General Police of the Provinces. It must be realised that the omission to send the sample of semen for grouping makes the task of the Court very difficult. The Investigating Officer invariably in every case of Zina should send the vaginal swabs and clothes/cloth having seminal stains to the Chemical Examiner and the Serologist without unnecessary delay and the moment, the accused are arrested, the Investigating Officer should get them medically examined and obtained the specimen of the semen of the male accused for onward transmission to the Chemical Examiner and Serologist for grouping. In case, the Investigating Officer fails to dispatch the vaginal swa bs and the specimen of the male accused, whenever it is made available, it should be treated as wilful negligence on the part of the Investigating Officer and dealt with in accordance with law.
Copies of this judgment be immediately sent to the Home Secretary as well as to the Inspector- General of Police, Punjab.