' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 957 of 2000 filed by Umar Draz, Muhammad Ijaz, Muhammad Dillasa, Sikandar Hayat and Muhammad Shabbir, appellants who were convicted and sentenced by learned Special Judge Anti-Terrorism Court, Sargodha vide judgment dated 1-7-2000 as follows: ' Life imprisonment and to pay a fine of Rs,50,000 each, in default five years' R.I. Each under section 11 of Ordinance VII of 1979.
' Death under section 10(4) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, ' Murder Reference No, 455-T of 2\000 for confirmation of the death sentence or otherwise of the appellants shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place in between the night of 19th/20th January, 2000 at a distance of 22 kilometers from Police Station Jauharabad, District Khushab while the matter was reported by Mst. Samina Yasmeen at 7.15 p.m. On 20-1-2000 and the formal F.I.R. Exh.P.D was recorded by Manzoor Hussain S.I.
3. Briefly stated the facts of the case according to F .I.R. Are that Mst. Samina is virgin, on the last night (night of occurrence) after Isha prayer she went to the wheat crop to ease herself when all of a sudden Umar Draz, Muhammad Dillasa, Sikandar Hayat caught hold her and forcibly took her at the deserted Dera of Khudadad Awan where Ghulam Shabbir and Muhammad Ijaz were already present; there firstly Umar Draz, then Sikandar Hayat and after that Dilassa and Ghulam Shabbir and finally Muhammad Ijaz committed Zina-bil-Jabr with her; the victim complainant had been requesting the accused and also raising the noise, but the accused did not accede to her request and committed Zina- bil-Jabar with her; in the morning when Muhammad Sarfraz and Sultan, real uncles of the victim reached at the Dera of Khudadad Awan in search of the victim, the accused who were five in number ran away from the spot. The father of the complainant is a truck driver, she had been waiting for him, but as he did not turn up so the matter was reported to the police in the company of her two real uncles.
4. After registration of the formal F.I.R., Tanvir Amjad, Inspector (P.W.10) inspected the spot, prepared site plan Exh.P.Q, from the place of occurrence took into possession broken bangles vide recovery memo. Exh.P.E, on the same day supplementary statement of the victim was recorded, the victim was also got medically examined on the same day, a sealed envelope and sealed phial was taken into possession vide memo. Exh.P.B, the accused were arrested on 21-1-2000 and were got medically examined and after completion of the remaining formal investigation, all the five accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, then on 30-6-2000, the learned PP tendered in evidence report of the Chemical Examiner Exh.P.G and closed the prosecution case, thereafter statements of the accused were recorded under section 342, Cr. P.C. In which they pleaded innocence and false implication. However, after conclusion of the trial, all the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence and other- material available on record submits that there is delay of one day in lodging the F.I.R. Without any proper explanation, there is no mention of broken bangles of Mst. Samina Yasmin in the F.I.R, both the uncles namely Sarfraz and Sultan of the victim had not seen any of the accused committing sexual intercourse with the victim, the victim was a girl of easy virtue and this fact has been verified by Range Crimes Sargodha in as much as Tanveer Amjad, Inspector/Investigating Officer (P.W.10) admitted in cross-examination that the D.I.-G Sargodha had directed him to omit section 10(4) of the Ordinance VII of 1979 from the challan and that whole of the family members of the victim are of loose character. Further submits that there is no history of change of clothes by the victim and the version of the victim is belied by the statement of Lady doctor Norain Imtiaz (P.W.8) who stated in cross-examination that she did not for any blood or semen on her clothes. Adds that none of the accused was armed hence there was no question of raising hue and cry, there was no scratch on her private parts, the occurrence was not reported to the Chowkidar, Lambardar or Councillor of the village, it is practice in villages that women do not go alone to ease themselves but always take the women of surroundings. Also adds that so far as Dillasa appellant is concerned, he gave his age as 15 years at the time of getting his statement recorded under section 342, Cr. P.C., according to potency test his age was 17/18 years while according to the Police, Dillasa was 15 years of age.
Learned counsel submits that there is admitted enmity between the complainant and some of the appellants. Concluding his arguments, leaned counsel for the appellants submits that the prosecution has failed to prove its case against the appellants under section 10(4) of Ordinance VII of 1979.
7. Learned counsel for the State submits that the appellants were named in the F.I.R. With specific roles and that the prosecution has proved its case against the appellant under section 10(4) of the Ordinance. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. Occurrence in this case had taken place in between the night 19th/20th January, 2001. The matter was reported to the Police at 7-15 p.m. On 20-1-2000 although the police station is at a distance of 22 kilometers from the place of occurrence. According to the prosecution story, on the morning of 20-1-2000 Sarfraz and Sultan real uncles of the victim-complainant reached at the Dera of Khudadad, all the accused, five in number, ran away from the spot. They did not report the matter to the police till 7- 15 p.m., the same day. The reason given in the F.I.R. That father of the victim was a truck driver and she had been waiting for him but since he did not turn up so the matter was reported in the company of the real uncles does not appeal to reasons because in a case of suchlike offence, there was no need for waiting for father of the victim when her real two uncles had allegedly themselves seen the accused running from the Dera. It was admitted by the victim that in the house her two real uncles namely Sarfraz and Sultan remained with her throughout the day.
Further, the conduct of both the eye-witnesses namely Sarfraz and Sultan was unnatural because they did not try to apprehend the accused though none of the accused was armed with any fire- arm. There was not even a single scratch on any part of body of the victim.
As far as taking into possession of broken bangles of Mst. Samina Yasmin is concerned, that does not find mention in the F.I.R. It was contended by the victim that she had shown clothes stained with semen to the lady doctor who medically examined her and also alleged that her shirt was torn during the scuffle but neither the torn-shirt nor the shalwar allegedly stained with semen was taken into possession by the police. Sarfraz one real uncle of. The victim has appeared in the case as P.W.6. He admitted that investigation of this case was conducted by Range Crime Sargodha and approved by the D.I.-G. Sargodha. This witness also admitted that he had lodged a report vide F.I.R.
No, 97 dated 17-5-1995 under sections 342/147 and 149 P.P.C. With Police Station Jauharabad against Mian Muhammad father of Dillasa Muhammad, one of the appellants and Muhammad Safdar son-in-law of said Mian Muhammad for beating the witness and in that case the accused were acquitted. He further admitted in para. 3 of his cross-examination that Muhammad Ashraf, father of Mst. Samina Yasmin was challaned in a case under section 16 of Ordinance VII of 1979 for the abduction of one Mst. Safia sister of Muhammad Rafi Muslim Sheikh. He further admitted that aforesaid Muhammad Rafi accompanied Muhammad Safdar son of Khuda Bukhsh son-in-law of Mian Muhammad, was father of Dillasa appellant, when he went to the Police Station to lodge the F.I.R. This witness also admitted that Muhammad Ashraf father of Mst. Samina Yasmin was also challaned in a case under section 377 P.P.C. For committing sodomy with a boy. It was further admitted by this P.W. That one of Mamuzad namely Mumtaz was challaned in a narcotic case and remained in Mianwali jail for two years. An admission was also made by this witness that mother of Mst. Samina Yasmin was divorced by Muhammad Ashraf, father of the witness through Court. All this shows that the complainant party is family of criminals .
' Tanveer Amjad Inspector (P.W.10) admitted that the investigation of this case was also conducted by Range Crimes Sargodha by the order of the D.I.-G, Sargodha and that after approving the investigation, the D.I.-G had directe4 to omit section 10(4) of Ordinance VII of 1979 and that Mst.
Samina Yasmin should also be challaned in this case. This witness also admitted that according to finding of the Range Crimes, Mst. Samina was a girl of ill-repute and offered herself for Zina after accepting money. It was further admitted by this witness that he did not submit the challan as per direction of the D.I.-G as the evidence of the case was being recorded but in the same breath admitted that he received the direction of the D.I.-G on 12-6-2000 and the formal witnesses were examined on 13-6-2000. This shows his partiality.
' Learned counsel for the appellants had filed an application being Cr. Misc. No, 2123/M of 2001 under section 428 Cr.P.C. Which was fixed for hearing on 8-11-2001 but on the said date one of us (Kh. Muhammad Sharif, J.) was on leave as such the application could not be taken up. We have gone through the F.I.R. Sought to be placed on record through the said application. This. F.I.R. Mark "A" was registered on 299-2001 with Police Station Jauharabad on the statement of Safdar Ali under section 302 P.P.C. In which it was alleged that Muhammad Ashraf father of the present victim Mst.
Samina Yasmin committed the murder of Mst. Samina Yasmin with Danda blows. It was alleged by the complainant that it was heard that Mst. Samina Yasim was not a lady of good character. The registration of this F.I.R. Lends support to the version of the appellants and the finding recorded by the Range Crimes, Sargodha.
There is no corroboration to the statement made by Mst. Samina Yasmin. In a case .Of capital punishment the Court has to see that whether there is any corroboration or not and that all the chains are to be linked in such a manner that the Court could reach to the only conclusion that it was/were the persons charged who are the actual culprits but all this is missing in the instant case, rather there are doubts and doubts in the prosecution story. It is settled law that whenever a doubt arises, the benefit of that has to be extended to the accused.
After scanning the overall facts and circumstances of the case and the evidence produced by the prosecution, we are of the considered view that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Resultantly, appeal filed by the appellants is accepted and conviction and sentence recorded against them by the learned trial Court is set aside. The appellants are in jail, and shall be released forthwith, if not required to be detained in any other case. Death sentence of the appellants is not confirmed, Murder Reference is replied in the negative.