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Criminal Appeal No. 173 of 1968, decided on 21st January 1971.

S. 376‑Rape‑Statement of prosecutrix completely belied by circumstances of case‑Medical report showing no signs of rape and contrarily prosecutrix found to be used to sexual intercourse‑Blood‑stained shalwars produced by prosecutrix, stained with menstruation blood and no semen detected‑First information report lodged after delay of about 4 days although Police station situated at a distance of only five furlongs Prosecution, held, miserably failed to establish its case in circums tances‑Conviction and sentence set aside.

Muhammad Abdul Khaleque and others v. The State P L D 1960 S C 325 ref.

Syed Nasiruddin for Appellant.

Manzoor Hussain for A.G. for the State.

Date of hearing : 21st January 1971.

This is an appeal against the judgment of the Sessions Judge, Nawabshah, convicting the appellant for an offence under section 376, P. P. C. and sentencing him to undergo R. I. for 5 years.

Mst. Imamzadi daughter of Allahdino and Mst. Sahiban is aged about 12/13 years and is unmarried. Qurbanali is her brother. On 6‑4‑67 Mst. Sahiban, mother of Mst. Imamzadi had gone to Sakrand in order to attend some function. At about 3 p. m. Mst. Imamzadi left her house and was going to bring clothes from the washerman when on the way she passed in front of the house of Mst. Khurshid who stopped her and told her to bring a magazine from the house of the appellant whose house was situated opposite to the house of Mst. Khurshid and who was also said to be present at the door of his house. Imamzadi declined to go to the house of a stranger but Mst. Khurshid insisted that she should not fear. Consequently Mst. Imamzadi went to the house of the appellant and asked him to give the magazine as required by Mst. Khurshid. The appellant told her to stay as he was going to urinate and also threatened her. Imamzadi sat down on the cot due to fear while the appellant bolted the door from inside. Imamzadi started raising cries but the appellant took off her shalwar and committed rape upon her. She felt severe pain and her shalwar was stained with blood. After she was released she put on her shalwar and went home. She told her father that she had been raped by the appellant. Her mother returned on the following day and she was also informed. The parents of the girl then went to Ghulam Rasul Shah and complained to him. Then they took Mst. Imamzadi to the police station where first report was lodged. The S. H. O. secured the shalwar of Mst. Imamzadi from her person in the presence of mashirs Mohd. Bashir and Gul Mohd. and mashirnama was prepared. Another shalwar of the girl was produced by her brother Qurbanali and it was also stained with blood. Mashir nama was prepared. Both the shalwars were sealed into separate parcels. The statements of Mst. Khurshid, Allahdino and Aziz were recorded. The appellant was arrested at about 3 p.m. in front of the National Bank of Pakistan, Nawabshah. Both were sent to the medical officer but no evidence of rape was visible. After usual investigation the appellant was challaned. The shalwars of the girl were sent to the pathologist for examination of the blood who found it to be the blood of menstruation. The appellant proclaimed his innocence. He examined no witness in defence.

The learned Sessions Judge, on the assessment of the evidence, came to the conclusion that the appellant was guilty of the offence. He had also referred to the authority ‑of the Supreme Court reported in P L D 1960 S C 325 in which it was laid down that in order to sustain conviction in a case of rape the evidence of the prosecutrix should receive corroboration before it could be accepted. The learned Sessions Judge, 'found corroborative evidence in the circumstances that the girl was completely stranger to the appellant, she had no motive whatever and that the story appeared to be natural and further there was the evidence of Mst. Khurshid who. corroborated generally the evidence of Mst. Imamzadi.

I have considered the evidence which was produced in the case in the light of the reasons given by the learned Sessions Judge and I am of the view that the prosecution had miserably failed to establish the case. Even the learned counsel for the State did not support the conviction: There was not only the bare word of Mst: Imamzadi but her evidence was completely belied by the circumstances. The girl was sent to the medical officer but there was no evidence of rape present upon leer. On the contrary, it was found by the medical officer that he was used to sexual intercourse. The two blood‑stained shalwars were produced but the blood was found to be of menstruation. There was no semen stain on any of the shalwars. The evidence of the girl shows that as soon as she was released she cleaned her private part by the shalwar but strange enough no semen was discovered. The story related by the girl is itself unnatural and not worthy of any consideration. The girl was deputed to bring the magazine from the house of the appellant but the evidence reveals that Mst. Khurshid who was alleged to have deputed her to bring the magazine was standing at the door of her own house while the appellant was said to be standing at the door of his own house and both the houses were situated opposite to each other and, the before, Mst. Khurshid could herself ask the appellant to give her the magazine. There was no question of deputing the girl to bring the magazine from the house of the appellant. The girl further stated that the appellant continued to commit rape for two hours and all the time she was crying which, is rather absurd, and in spite of the cries nobody was attracted.

The learned Sessions Judge had also relied upon the evidence of Mst. Khurshid who is aged about 15 years but her evidence too has not inspired confidence. Moreover, her conduct shows that she was an accomplice. She was detained at the police station as has been admitted by the S. H. O. as she was treated as co- accused and she was subsequently released after her statement was recorded under section 164, Cr. P. C. I have already pointed out that she herself could secure the magazine from the appellant who was standing in front of his house at the time when the girl was said to ‑have been deputed. Previously she had never sent for any magazine. She was also illiterate and so there could be no question of her reading the magazine. She took no step to rescue the girl when she had found that the appellant had closed the door and the girl had, started raising cries. Further more the girl had informed her mother that Mst. Khurshid was responsible for the rape.

It is said, that the appellant was not known to the girl and it is not known how the girl proceeded to make an allegation by disclosing the name of the appellant that he was the person who had raped her. In this connection it was stated that the name in the first report was disclosed on inquiries from 'other persons but this was again contradicted in evidence by Mst. Sahiban that this name was given to her by her own daughter as the name of the appellant was disclosed to her by Mst. Khurshid. This is, ridiculous. The appellant was said to be standing in front of his house and there was no question of Mst. Khurshid to name the appellant.

Lastly, there is delay in lodging the first report. The incident had taken place on 2‑4‑67 at noon while the first report was lodged on 6‑4‑67 at 10‑30 a. m. although the police station was situated at a distance of about five furlongs in the town of Nawabshah. A futile attempt was made to explain the delay. Mst. Sahiban the mother of the girl stated that she had gone away to Sakrand and the incident had taken place 3/4 days later. But the evidence of the girl as well as others show that the incident had taken place on the same day when she had gone to Sakrand and she had returned on the following day. It was also unnecessary to wait for the mother to return as the father and brother of the girl were available and it is said that they were informed by the girl immediately on her return to the house. Consequently the father could lodge the report without delay, but no such report was lodged nor any other nekmard was approached. In order to overcome this delay it was stated by Mst. Sahiban that the, girl did not inform any body about the rape till her return from Sakrand. This statement is obviously false and cannot be accepted.

Thus the story told by the girl is not only not supported by any circumstance but it is not true. The circumstances which were sought by the learned Sessions Judge in support of the evidence of the girl, in my opinion, do not serve to provide any corroboration. I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellant. He is on bail and his bail bonds are discharged.

Appeal allowed.

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