' Shah Nawaz son of Imam Bakhsh, resident of Mauza Essan Wala, Tehsil Kot Addu, District Muzaffargarh, presently confined in jail, has come up in appeal against the judgment of the learned Additional Sessions Judge, Kot Addu dated 20-5-2002, whereby he was found guilty of an offence under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to five years' rigorous imprisonment alongwith whipping numbering 30 stripes and was also ordered to pay a fine of Rs,10,000 and on his failure to pay the fine, to undergo further six months rigorous imprisonment.
2. The facts of the case, as reflected in the F.I.R., briefly stated are that on 17-10-1999 Ghulam Sarwar P.W. Appeared before Ghulam Abbas, A.S.-I. Of Police Station Mahmood Kot who was on Gusht and made a statement before him that on 16-10-1999 at about 4-00 p.m. He alongwith Gtiulam Shabbir (P.W.5) and Ghulam Hussain (not produced), were busy in cutting grass in a sugarcane field where he heard hue and cry from the direction of the sugarcane field of Mian Muhammad Suliman. He alongwith his companions rushed towards that direction where they saw Shah Nawaz son of Imam Bakhsh busy in committing Zina-bil-Jabr with Mst. Nasreen. Her trouser was lying at a distance.
When the accused noticed them approaching he decamped from the spot. Explaining the delay in lodging the report he stated that he is poor person and was approached by the relatives of the accused not to report the matter but ultimately he decided to lodge the report of the occurrence.
The Investigating Officer reduced his statement into Murasila and sent it to the police station through Muhammad Ajmal, Constable while referred Mst. Nasreen to the hospital in the company of Ghulam Hussain, her maternal-uncle and Asghar Ali, Constable for her medical examination and he himself proceeded to the place of occurrence. He prepared the rough site plan Exh.P.B., recorded the statements of the P.Ws. On the spot and took into possession the medical certificate and thereafter arrested Shah Nay/az accused. In Court on 19-10-1999 and got him medically examined for his potency. On completion of the investigation complete challan was put in Court against the accused.
3. After framing of formal charge against the accused, which he denied, the prosecution examined doctor Majeed-ud-Din, Medical Officer, Basic Health Unit, and Muzaffargarh (P.W.1) who opined that the accused was potent and capable of performing sexual intercourse. Lady Doctor Zubaida Latif, W.M.O., Rural Health Centre, Gujrat (P.W.2) examined Mst. Nasreen aged about 16 years, on 18-10- 1999 and observed that there was no mark of violence on her body. The vulva was not tendered.
There were recent signs of loss of virginity. However, her hymen was torn and there were old healed scars on hymen. On vaginal examination, there was no bruising and tenderness/tear. Three vaginal swa bs were taken, sealed into parcels for chemical examination and handed over to Asghar Ali, Constable. The probable duration of history of rape was within 24 hours. The opinion was delayed till the report of the Chemical Examiner. She admitted that in case the report of the Chemical Examiner is received in negative it would be presumed that she had not been subjected to intercourse. Mst. Nasreen, the victim, appeared as P.W.3. She in her statement supported the occurrence as given in the F.I.R. And further stated that the accused made good his escape from the spot on seeing Ghulam Sarwar and Ghulam Shabbir, her maternal-uncles. Ghulam Sarwar, complainant (P.W.4) reiterated the contents of the F.I.R. And further stated that his brothers namely Ghulam Shabbir and Ghulam Sarwar, whose houses are adjacent to the place of occurrence. They caught hold of the accused red-handed and there after lodged the report. Ghulam Shabbir (P.W.5) stated that he was sitting in the house of his uncle Ghulam Rasool when he heard hue and cry of Mst. Nasreen who had earlier left the house for cutting grass from the sugarcane field. On hearing her hue and cry he as well as Ghulam Sarwar and Ghulam Hussain were attracted to the place of occurrence, where they saw Shah Nawaz accused committing Zina-bil-Jabr with Mst. Nasreen. The accused seeing them approaching towards him, from the spot and concealed himself in the sugarcane field. Many persons of the locality gathered at the spot and started search for the accused in the sugarcane field and caught hold of him. Asghar Ali, F.C. (P.W.6) accompanied Mst.
Nasreen to the hospital for her medical examination. Amir Bakhsh, Constable (P.W.7) had taken the sealed envelope handed over to him by Ansar Parvaiz, Muharrir, for taking it to the office of the Chemical Examiner who handed over the same in the said office. Ghulam Abbas, A.S.-I. (P.W.8) is the Investigating Officer of the case.
' After close of the prosecution evidence the accused was examined under section 342, Criminal Procedure Code, who denied the allegations against him and stated that he has been falsely charged because his land and that of the complainant are adjacent and the complainant always used to steel the irrigation water of his turn and that was the bone of contention. However, he did not make statement on oath in the rebuttal of the prosecution evidence.
4. The learned trial Judge relying on the prosecution evidence, found the accused guilty of the offence, convicted and sentenced him as stated above.
5. It was contended by the learned counsel for the appellant that the finding of the learned trial Court is against fact and evidence on record; that the prosecution has miserably failed to prove its case beyond any reasonable doubt; that the statements of the prosecution witnesses are full of material contradictions from which inference can be drawn that the prosecution story is concocted and a false one; that there is no eyewitness of the occurrence; that the medical evidence and the report of the Chemical Examiner negate the prosecution story and lastly that though the trial Court has found the victim a consenting party which falsify the prosecution story still reliance was placed on her statement regarding the date and time of the occurrence ,and preference to the medical and Chemical Examiner reports.
' The learned counsel appearing for the State supported the judgment of the learned trial Court on the ground given therein.
6. In order to appreciate the contentions of the learned counsel for the appellant it may be pointed out that the ocular evidence in this case is furnished by Ghulam Sarwar who stated that he alongwith Ghulam Shabbir and Ghulam Hussain were busy in cutting grass in the adjacent field when they heard hue and cry of Mst. Nasreen they proceeded to that direction and saw the accused committing Zina-bil-Jabr with her. He further stated that they tried to apprehend the accused but he succeeded in decamping from the spot, however, when he appeared in the witness-box he gave a different version of the occurrence and stated that he was cutting grass in the sugarcane field of Mian Muhammad Suliman at that time Mst. Nasreen was also busy in cutting grass in the said field. On hearing hue and cry he rushed to that direction then he saw the accused committing Zina-bil-Jabr with Mst. Nasreen. He further stated that his brothers Ghulam Shabbir and Ghulam Hussain whose houses are situated near the place of occurrence were attracted, reached there immediately and witnessed the occurrence. He has further stated that they succeeded in arresting the accused red-handed and then informed the police. Such statement materially contradicted the contents of the F.I.R. It is improbable that the accused could have dared to subject Mst. Nasreen to Zina-bil-Jabr at a place where the complainant, her maternal- uncle, was busy in cutting grass in the same field. Similarly, the credibility of his statement is further shattered by the fact that in the F.I.R. He has stated that Ghulam Shabbir and Ghulam Hussain were also cutting grass in the field at the relevant time while he has changed his version in his statement in Court by stating that they were attracted to the spot from their houses on hearing hue and cry. In the F.I.R. He has stated that the accused succeeded in decamping from the spot but in his Court statement he, has stated that the accused was apprehended red-handed. The Investigating- Officer who stated that the accused was arrested from the Court on 19-10-1999 and that though the occurrence took place on 17-10-1999 also contradicts his subsequent statement. The statement of Ghulam Shabbir is also unreliable and not confidence inspiring. He further excluded that the presence of the complainant at the spot as he has stated that he was sitting with the complainant in his house when they heard the noise from the sugarcane crop where Mst. Nasreen has gone for cutting the grass. It is unbelievable till their arrival of their house to the place of occurrence, the accused was busy in committing Zina-bilJabr with her, which they have alleged, have witnessed.
Ghulam Shabbir's statement is further contradicted with regard to the arrest of the accused.
Considering the material contradictions in the ocular evidence given by Ghulam Sarwar complainant and Ghulam Shabbir P.W. The only evidence which can be referred to in this case is the statement of the complainant and the medical, evidence. Mst. Nasreen has stated that she was busy in cutting grass from the field owned by Mian Muhammad Suliman when the accused came there, caught hold of her and subjected her to Zina-bil-Jabr and that her hue and cry attracted Ghulam Sarwar and Ghulam Shabbir, her Mamoons to the spot. In her cross-examination she has stated that she had offered resistance and in that process she had fallen on the ground and has sustained injuries on her mouth, arm and shoulder and that these injuries were shown to the lady doctor. She also admitted that before the arrival of the witnesses on hearing her hue and cry the accused has already escaped from the spot. Her statement is not supported by the medical report referred to above. The report of the Chemical Examiner also is in the negative. Such being the case it is not proved beyond reasonable doubt that Mst. Nasreen was subjected to Zinabil-Jabr on the day and the time of occurrence. The arguments of the learned counsel for the State that the lady doctor has opined that she -has been subjected to intercourse within 24 hours is misconceived. In case lady doctor has reported that probable duration of history of rape was, within 24 hours is reproduction of the prosecution case that she has been subjected of Zina-bil- Jabr within 24 hours of her examination. As far as the medical report is concerned, it has clearly been mentioned therein that there was no recent sign of loss of virginity and that her hymen was torn and there were old healed scars on hymen. There were also found no bruising tenderness and tear. Such being the case, medical report coupled with the report of the Chemical Examiner fully support the contention of the learned counsel for the appellant that Mst. Nasreen has not been subjected to Zina-bil-Jabr on the alleged day of occurrence. The solitary statement of the victim which is not supported by the medical evidence and the report of the Chemical Examiner, is not confidence-inspiring cannot be relied upon for conviction of an accused in a heinous offence.
7. For the reasons stated above it is held that the prosecution failed to prove its case against the accused beyond any reasonable doubt. This appeal is accepted, the judgment and order of the learned trial Court is set aside and the accused/appellant namely Shah Nawaz is acquitted of the charge. He shall be released forthwith from jail if he is not required in any other case.