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Criminal Appeal No. 198/L of 1984, decided on 18th March, 1985.

‑‑‑S. 10(3)‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Prosecutrix alleging commission of Zina‑bil‑jabr with her yet two medical examinations showing only an attempt for rape‑‑A green adhesive strip was found to be stuck to mons but it was not explained when and by whom and for what purpose same was stuck‑‑‑Accused not nominated in F.I.R. but involved and substituted for his younger brother after unexplained delay of over 16 months of private complaint filed by complainant under S.10(3) of Ordinance was dismissed for non‑prosecution‑‑Complainant submitting applications to higher authorities against hostile attitude of police but making no grievance that police dishonestly excluded accused and involved only his younger brother‑‑Accused given benefit of doubt and acquitted, in circumstances.

Malik Saeed Hassan and Muhammad Yameen for Appellant.

Malik Muhammad Aslam for the Complainant.

Kh. Shaukat Ali for the State.

Date of hearing: 5th March, 1985.

The Sessions Judge, Bahawalpur vide impugned judgment dated 13‑11‑1984 found guilty Muhammad Jamshed accused under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to undergo R.I. for a period of 10 years and whipping numbering 30 stripes. The trial Court, however, acquitted Muhammad Shoaib co‑accused. The convict has challenged his conviction and sentences through the present appeal.

2. In support of its case the prosecution produced 12 witnesses. Lady Dr. Qaisar Jahan (P.W.1) on 6‑6‑1982 medically examined Mst. Shamshad and made the following observations:‑

"General Examination.‑‑ (1) The girl was brought on a cot. The bed clothes and her dress were without any blood‑stains. She was able to walk briskly without any pain. Her general condition was good.

Local Examination.‑‑ The incidence was reported to have taken place on 3‑6‑1982 afternoon. Shalwar was unstained. There was no bleeding or discharge at the vulva. 2" x " green adhesive strip was stuck to the mons. It was taken off and healthy skin was revealed.

The vulva was uninjured. Labia majora and tibia minors and urethra were intact and healthy. There was no swelling or tenderness of the vulva. The examination of the introitus and hymen showed one bruise which was red in colour and was not bleeding. The situation of this bruise was between the fourchette and outer hymenal edge. The size of the bruise was 1 c.m. x c.m. The perineum and fourchette were intact. I took two vaginal swabs which I sealed into parcel and I gave my opinion that the final report will be given after the report of the Chemical Examiner. The probable duration of injury was 24 to 48 hours."

On receipt of the Chemical Examiner's Report the lady doctor finally opined that there might have been an attempt for rape.

3. Dr. Mahmud‑ul‑Hassan Qureshi (P.W.2) was the Chairman of the Medical Board which on 19‑8‑1982 at 9‑00 a.m. medically examined Mst. Shamshad. According to this witness the Board gave the following observations:‑--

"General Examination.‑‑ A young girl having no auxiliary or pubic hair and breast not developed. Her age is approximately 8/9 years. On local examination the Board found that the vulva was healthy, the vagina was externally normal and the hymen admitted plus one finger. There was small lateral tear on left side of hymen at 3 o'clock. The interior of the vagina was slightly reddish. The Board was of the unanimous opinion that all the above findings were suggesting that it could be due to old attempted coitus."

4. Dr. Javed Hassan Ajmi (P.W.3) has deposed that the police submitted an application Exh. P.F. before him to obtain the semen of Jamshed accused. He was put to masturbation and his semen was obtained which was sealed into a vial which he handed over to the police.

5. S.H.O. Muhammad Rafiq (P.W.4) on 5‑6‑1982 was posted as S.H.O. Police Station Khairpur Tamiwali, District Bahawalpur. Oh that day Hafiz Muhammad Ismail complainant submitted before him an application Exh. P.G. about the occurrence. On its basis, he prepared formal F.I.R. Exh. P.G/1. He went to the place of occurrence, made the spot inspection and prepared the site plan Exh. P.H. At the spot Muhammad Ismail complainant produced before him blue Shalwar P.1 stained with blood and Phuldar Shalwar P.2 stained with blood he took into possession vide recovery memo. Exh. P.J. and sealed into a parcel. He recorded the statements of the P.Ws. under section 161, Cr.P.C. He got Mst. Shamshad Bibi medically examined by the lady doctor. After this the investigation was transferred from this police officer. In cross‑examination it is admitted by him that he recorded the statements of Ghulam Qadir, Muhammad Ilyas Qaisar, Shafiq Ahmad, Muhammad Ismail and Mst. Shamshad on 5‑6‑1982. According to him an application Exh. P.G. was already written when Muhammad Ismail produced the same before him and was not dictated by him. He recorded the statements of Mat. Shamshad Bibi Exh. D.A., statements Exh. D.B. of Muhammad Ilyas Qaisar, statements Exh. D.D. of Ghulam Qadir and statement Exh. G.E. of Shafiq Ahmad P.Ws.

6. S.H.O. Nabi Bakhsh (P.W.5) was entrusted the investigation of this case on 8‑3‑1983 by the Superintendent of Police, Bahawalpur while he was posted as S.H.O. Hasilpur. During the investigation, he recorded the statements of Mat. Shamshad and Mat. Mumtaz, supplementary statements of Muhammad Ismail, Ghulam Qadir and Karim Bakhsh. He also recorded the statement of Mat. Mehran midwife. In cross‑examination he has stated that Exh. D.F. is the copy of the statement of Mat. Mumtaz Mai, Exh. D.E. is the copy of the supplementary statement of Muhammad Ismail, Exh. D.H. is the copy of the statement of Ghulam Qadir, Exh. D.J. is the copy of the supplementary statement of Mat. Shamshad Mai and Exh. D.K. is the copy of the supplementary statement of Mat. Mumtaz Mai while Exh. D.L. is the copy of the statement of Karim Bakhsh. This police officer has also admitted that he found Jamshed accused as prima facie innocent and Shoaib accused as guilty.

7. S.H.O. Akbar Ali (P. W.6) has deposed that he was transferred the investigation of this case on 24‑8‑1983 by the Superintendent of Police, Bahawalpur when he was posted as Inspector C.I.A. Bahawalpur. On 31‑8‑1983 he was working as acting S.D.P.O. Ahmadpur East. He submitted an application Exh. P.K. before the Medical Officer, Civil Hospital, Ahmadpur East to obtain the semen of Muhammad Shoaib accused. On 1‑9‑1983 he sent application Exh. P.F. to the Medical Officer, Ahmadpur East to obtain the semen of Muhammad Jamshed accused. S.I. Irfan handed over this witness 2 sealed vials containing the semen of the accused persons. On 2‑9‑1983 he recorded the statements of Dr. Javid Iqbal Ajmi and Dr. Fazal Hussain. The vials were sent to the Chemical Examiner for group matching. He received report Exh. P.L. of the Serologist and his opinion was that the semen on blue Shalwar, printed Shalwar and piece of cloth were of group "O". On the basis of this report, he arrested Jamshed accused on 10‑10‑1983. This police officer also recorded the statements of Mat. Shamshad Mai and Mat. Mumtaz Mai. In cross‑examination it is admitted that before 8‑9‑1983 the aforesaid semen and clothes were not sent for group matching.

8. Muhammad Ismail complainant was examined as P.W.7. He is the father of the victim girl Mst. Shamshad Mai. He has deposed that at the relevant time he had gone to the bus‑stand to make sale of the articles. His daughters Mst. Shamshad and Mst. Mumtaz Mai used to go to the house of Mistri Faiz Ullah to read the Holy Quran. His wife had died four years ago. After 7‑30 p.m. he returned to his house. He saw that the clothes of Mat. Shamshad were stained with blood and she was unconscious to some extent. Mat. Mumtaz told him that Shoaib accused took Mat. Shamshad to the room of the house of Faiz Ullah and afterwards Shosib and Jamshed fled away after some time when Mat. Shamshgd was weeping. In the meantime Mat. Shamshad regained consciousness and on his inquiry she told that she was reciting the Holy Quran when Shoaib took her to a room wherein Jamshed accused was already present. Shoaib made her to fall on a cot already lying in the room. The door was bolted from inside. Jamshed accused unfolded her Shalwar and committed Zina‑bil‑Jabr with her. She further told him that she raised the alarm and both Shoaib and Jamshed fled away.

Mst. Allah Wasai wife of Mistri Faiz Ullah was baking the breads who came to her and took her out of the room She beat Mat. Shamshad and directed her not to tell anybody. She also washed her clothes and made her to take the bath. She made her to drink the sweet drink. According to the complainant, he called Mst. Zaibu Dai who examined Mat. Shamshad and expressed her inability to treat her. This witness sent for Mst. Mehran Dai. Mst. Zaibu Dai was present when Mst. Mehran arrived. Mat. Mehran also expressed her inability to treat Mat. Shamshad. In the meantime the condition of Mst. Shamshad worsened after both the Dais had left and he took Mst. Shamshad to Mst. Mehran Dai. She refused to attend to her. At that stage Akbar Bhatti, Haji Ata and Allah Wasaya also arrived. According to him at about 9‑00 p.m. he went to the police. The Thanedar sent Akbar Bhatti and Haji Ata with him to Mst. Mehran Dal to attend Mst. Shamshad on that night. Mat. Mehran Dai kept Mat. Shamshad but did not treat her. On the next day he went to Police Station Khairpur Tamiwali at about 7‑00 a.m. and requested for recording the F.I.R. He has deposed that Akbar Bhatti and Atta Muhammad had sent the telephonic message to Abdul Ghafur Shaheen who was posted as Magistrate First Class at Lahore and both the accused were the nephews of said Magistrate who arrived when the complainant was requesting the police of Police Station Khairpur Tamiwali to register the case. He took Mst. Shamshad to the hospital but it was closed being Friday. According to him he had been requesting the Police the next day i.e. 5‑6‑1982, he went to the police alongwith Riaz Qaisar who was a Press Reporter. On his request the Thanedar agreed to record the F.I.R. The complainant narrated the whole occurrence to the Thanedar who obtained his signatures on a blank paper and asked him to leave. He produced blue Shalwar P.1 stained with blood and printed Shalwar P.2 stained with blood before the Thanedar who took the same into his possession vide recovery memo. Exh. P.J. signed by him. The Thanedar directed him to bring Mst. Shamshad on the, next morning whom he took to him. Haji Ata, Thanedar, Abdul Ghafoor Shaheen Magistrate First Class and Akbar Bhatti came to Bahawalpur. He took Mst. Shamshad on a cot to Bahawalpur. However, Abdul Ghafoor Shaheen Magistrate First Class and Akbar Bhatti had earlier contacted the Woman Medical Officer. Mat. Shamshad was examined by the Lady Doctor who issued the medico‑legal report. On the next morning he requested the Thanedar to proceed against the accused but he told him that nothing had happened and asked him to leave the place. Then he made the application to the D.I.‑G. Bahawalpur Range, Bahawalpur. Even then the accused were not proceeded against. He filed the applications before Martial Law Authorities. The A.S.P. Bahawalpur was directed to investigate the case. The A.S.P. told him that Shoaib had been mentioned in his statement as the person who committed Zina‑bil‑Jabr. But the witness told him the correct facts. The complainant requested the A.S.P. for the second medical examination of Mst. Shamshad. He permitted the same. Then application was written which was presented before the learned Magistrate First Class and he passed the order for the Medical Board which examined his daughter Mst. Shamshad. Even thereafter the accused were not proceeded against. According to him he made the applications before the Martial Law Authorities again. The matter was investigated by Ch. Nabi Bakhsh Luk, Inspector Police and Akbar Ali, Inspector Police. Ch. Akbar Ali Inspector arrested Jamshed accused. however, Shoaib accused was not arrested by the police as he was earlier admitted to bail before arrest. In cross‑examination this witness has deposed that A.S.P. conducted the investigation on 19‑7‑1982, but he did not remember on what date Ch. Nabl Bakhsh Luk Inspector recorded his statement. Said Nabi Bakhsh Luk, Inspector recorded his statement after his appearance before the A.S.P. after seven months. On 15‑6‑1982 Shoaib accused had appeared before the Sessions Court for his bail before arrest, which was subsequently confirmed. He also moved for cancellation of bail of Jamshed accused after the concession of bail was given to him. According to this witness, he filed a complaint which was dismissed in default. He has admitted that the matter was sent to the Magistrate Ist Class under section 202, Cr.P.C. and he gave the opinion against him. He was duly confronted with his police statement where he had not mentioned certain things which he had deposed before the trial Court. The complainant did not know who had affixed the strip to the mons of Mgt. Shamshad. The witness stated that he did not wash Mgt. Shamshad. However the Dai might have washed her vagina. He admitted that Karim Bakhsh P.W. was the brother of his wife who had died while Ghulam Qadir P.W. was son of his sister‑in‑law and Illahi Bakhsh P.W. was his distant kindred The witness did not know that the daughter of Illahi Bakhsh was married to Riaz who was the Phuphizad of both the accused. The witness knew that Riaz had divorced his wife but he did not know that he divorced her due to the reason that she was found in compromising position with Ghulam Qadir P.W. He denied the defence suggestion that semen was inserted in the vagina of Mgt. Shamshad and the strip was affixed thereon. He denied the suggestion that application Exh. P.G. was written at his narration. He has further denied the defence suggestion that both the accused had been falsely implicated. Volunteered how could he dishonour his daughter by reporting a false case before the police.

Mst. Mumtaz is younger sister of Mst. Shamshad P.W. She was produced as P.W.8, but the trial Court after putting certain questions to her came to the conclusion that she was not fit to make the correct statement, as she had not that much understanding and intelligence that she could be, able to make the statement. Consequently she was not examined.

9. Mst. Shamshad Mai prosecutrix was examined as P.W.9. The trial Court after putting certain questions to her came to the conclusion that she was able to make the statement. She has deposed that on the day of occurrence she had gone to the house of Nani Mistrani to read the Holy Quran in the company of her sister Mgt. Mumtaz. Shoaib accused caught hold of her from her arm and took her in the room of Manni Wala. He took her inside the room and bolted the same from inside. Jammu accused was already present in the room. She pointed out towards Shoaib and Jammu who were the accused persons. Jammu accused wrapped her bochoan (dopatta) around her eyes. Then Jammu removed her Shalwar. Shoaib accused placed his hand on her mouth. Then Jammu accused committed Zina‑bil‑Jabr with her. She started weeping and both the accused fled away from the room after opening the door. Nani Mistrani was baking the breads who came to the room and brought her outside. She told her and directed her not to tell anybody about what had happened with her. She made her to take the bath and gave her sweet drink. According to this witness, she became unconscious and did not know when she was taken. The blood came out from her that place from which she used to urinate. In cross -examination she has deposed that she could not say after how many days after the occurrence, the police recorded her statement. She was confronted with her police statement Exh. D.A. where she had not mentioned certain things which she had deposed before the trial Court. According to her, she was bleeding when she was medically examined by the lady doctor. She denied the defence suggestion that her father tutored her the statement made by her in the Court. It is further denied by her that she had made a false statement in the Court.

10. Ghulam Qadir (P.W.10) is Khalazad brother of the prosecutrix being nephew of Ismail complainant. He has deposed that at the relevant time his wife was not feeling well and Mst. Zaibo Dai had come to his house. Mst. Allah Wasai also known as Mistrani called for Mgt. Zaibo Dal from his house. She went there. When she returned, there were tears in her eyes. On her inquiry she told that Zina had been committed with one small girl. After some time his Khalazad Mgt. Mehr Illahi arrived in his house and told him that Shamshad was not feeling well and requested him to take her .to accused and on that he divorced her and due to that enmity he had made the false statement against the accused. It is further denied by him that on the day of occurrence he was present in Bahawalnagar.

11. Mst. Mehr (P.W.11) is midwife. At the relevant time when she was sleeping in her house, Allah Wasaya and his brother came on a scooter at about 11‑30 p.m. in her house. She accompanied them to their house as they had told that somebody was unwell in their house. She was taken to a house near a mosque and pointed towards a house who asked her to go inside. Ten/fifteen male persons were sitting outside the house while 20/25 females were sitting inside the house. Inside the house Mst. Zaibo Dai was already sitting. She asked the witness to examine the patient. Mat. Zaibo Dai took her inside where on a Pihri a small girl was lying and was bleeding from her vagina. According to her she asked Mst. Zaibo Dai to go to hospital or Thana and she went back to her house on the scooter. She told about the matter to her husband who was sleeping on the roof. In the meanwhile 10/12 persons brought that small girl to her house and asked her to give some treatment because next day was Friday. She refused. Then Akbar Bhatti arrived there and requested that she should treat the small girl but again she refused. She told them that she was afraid of the police. Akbar Bhatti told her that he was quite close to the Thanedar and that she should treat the small girl. However, she cleaned the legs of the small girl which were stained with blood. He has further deposed that she refused to treat the small girl as she suspected that Zina was committed with her. According to this witness when she examined Mgt. Shamshad no tape was pasted on her vagina. She denied the defence suggestion that in connivance with Ismail P.W. she put the semen inside the vagina of Mst. Shamshad and pasted the tape outside.

12. S.H.O. Dilshad Ali (P.W.12) formally arrested Shoaib accused. He also recorded the statements of Abdus Sattar Moharrir H.C. and Irshad Hussain Constable and thereafter he submitted the challan of this case in the Court of the Ilaqa Magistrate.

13. Muhammad Ilyas Qaisar the Correspondent of daily "Shahadat" Rahimyar Khan was examined as C.W.1. He has deposed that at the relevant time he was returning from the office of the Town Committee, Khairpur Tamiwali as the Deputy Commissioner, Bahawalpur had arrived there and he had gone there to collect the news. At about 11‑00 a.m. he had to cross Police Station Khairpur Tamiwali. Outside the Thana Building Muhammad Ismail complainant was silting who told the witness that two days before Zina had been committed with his daughter but the police was not recording the F.I. R. This witness took Muhammad Ismail inside Police Station Khairpur Tamiwali. The S.H.O. arrived on a motor‑cycle and witness told him as to why he was not lodging the report of the complainant. The S.H.O. told that he was tired due to the tour of the Deputy Commissioner and that he would record the F.I.R. Then the witness left the place. On the same day in the evening, he went to Police Station Khairpur Tamiwali where two Shalwars stained with blood were present there. Muhammad Ismail complainant was also present there. The police sealed both the blood‑stained Shalwars in a parcel vide recovery memo. Exh. P.J. signed by this witness. In cross -examination by defence counsel, this witness has stated that Muhammad Ismail complainant told him that Jamshed and Shoaib had committed Zina with his daughter. The witness did not send any news to Roznama 'Shahadat' Rahimyar Khan about this occurrence.

14. Jamshed accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations. When asked whether on 31‑8‑1983 Dr. Javed Hussain, Senior Medical Officer, Civil Hospital, Ahmadpur East obtained his semen, for group matching, he stated as under:‑--

"My semen was obtained on a cloth after masturbation by me and that very cloth was placed on the Shalwars by the police officer while that was wet with semen, and the semen passed on to the Shalwars. I do not know whose Shalwars those were."

According to him the P.Ws were false and interested witnesses. Muhammad Shoaib co‑accused also made the similar statement denying the prosecution allegations.

15. The accused persons produced his father Abdul Rahim (D.W.1) in their defence. He has deposed that on 6‑6‑1982 he went to the mosque to offer the Fajjar Nimaz. Ilyas Qaisar, Muhammad Shafiq and Muhammad Yar were knocking the door of Ghulam Qadir who came out of his house. Ilyas Qaiser was having a green tape in his hand. He told Ghulam Qadir to paste that on the girl so that they could go to Bahawalpur and all the aforesaid four persons went ahead. He came back to his house and sent nephew Muhammad Arshad to go after the aforesaid four persons. He returned after some time and told him that the green tape was handed over to Mst. Aziman who pasted the same on the person of Mst. Shamshad P.W. This witness went to the Civil Hospital, Ahmadpur East when his son Jamshed was taken to the Medical Officer by Ch. Ali Akbar S.H.O. The Medical Officer asked his son to do the hand practice which he did. The semen came out of the penis of Muhammad Jamshed accused. Ch. Ali Akbar S.H.O. stained the Shalwar with that semen and then sealed that into a parcel. His son was directed for hand practice for the second time which he did. The semen came out of his penis which was put in a vial and was sealed. In cross- examination this witness has admitted that Jamshed and Shoaib accused are his real sons. Mr. Abdul Ghafoor Shaheen Magistrate Ist Class, Lahore is his real brother. It is further admitted by him that his brother Mr. Abdul Ghafoor Shaheen, M.I.C. came to Bahawalpur when the bail application of the accused was submitted and he stood surety for Shoaib accused. His mother Mst, Allah Wasai was also admitted to pre‑arrest bail in this case and his brother Abdul Ghafoor Shaheen stood surety for her. The witness has also admitted that this case was investigated by different police officers. He has, however denied that his said brother Mr. Abdul Ghafoor Shaheen remained present on each date of investigation and that the delay in the registration of the case occurred as his brother Abdul Ghafoor Shaheen M.I.C. had made the request to the Superintendent of Police. He has, however, admitted that Mst. Shamshad and Mst. Mumtaz came to his house to read the Holy Quran from his mother. He denied the suggestion that on 3‑6‑1982 at 7‑00 p.m. in his hose in a room, his son Shoaib accused took Mst. Shamshad and that therein his son Jamshed committed Zina‑bil-Jabr with her. He has also denied that after the occurrence Akber Bhatti and others were called by him and that the police was contacted which did not register the case. He denied that Mst. Shamshad was taken to Mst. Mehro Dai. He made the application to the S.P. Bahawalpur that Akbar Ali S.H.O. had stained the Shalwar with the semen of his son Jamshed. He further denied the suggestion that his son Jamshed had committed Zina‑bil‑Jabr with Mst. Shamshad.

16. At the close of the statement of Abdul Rahim D.W.1. Jamshed accused was again asked the following question which he replied as under:‑

"Q. Will you produce the defence evidence in addition to that already produced

A. I tender in evidence, Exh. D.N. copy of the application submitted on 5‑2‑1984 for the cancellation of bail of myself Jamsbed accused: Exh. D.O. copy of the affidavit; Exh. D.P. copy of complaint privately filed by Muhammad Ismail complainant against both accused Exh. D.Q. copy of order dated 10‑6‑1984 whereby the aforesaid complaint was dismissed Exh. D.R. copy of the report submitted by Mr. Ishfaq Ahmad Magistrate Ist Class, Bahawalpur and Exh. D.S. certificate issued by the Assistant Commissioner Model Town Sub‑Division Lahore, according to which Mr. A.G. Shaheen Magistrate Ist Class, Lahore was on leave from 1‑6‑1982 to 7‑6‑1982. I close my defence evidence". (Exhs. D.N. to D.R. are the certified copies of the documents.")

16. The trial Court vide impugned judgment acquitted Shoaib co‑accused but convicted and sentenced Muhammad Jamshed accused as mentioned above.

17. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record.

18. There are certain facts which are not denied. The occurrence did take place at the relevant time in which Mst. Shamshad Mai was made victim of Zina. The place of occurrence is also not disputed being the house of the father of the accused and both the accused were at the relevant time ordinary resident of that house. It is further admitted that Mst. Shamshad Mai and her younger sister Mst. Mumtaz Mai P.Ws. used to visit the house of the accused for learning the Holy Quran from the grandmother of the accused. Abdur Rahim (D.W.1) who is the father of both the accused has admitted that Mr. Abdul Ghafoor Shaheen, Magistrate Ist Class, Lahore is his real brother and he went from Lahore to Bahawalpur when the bail application of the accused was submitted. The said Magistrate also stood surety for Shoaib accused and his mother Allah Wasai. The allegation of the complainant party is that it was due to the influence exercised by said Mr. Abdul Ghafoor Shaheen, Magistrate Ist Class over the local administration that first the police did not record the F.I.R. and when forced, recorded under the pressure of the higher authorities, they did not investigate the case on proper lines. According to the complainant party, even the medical examination of the prosecutrix was not conducted correctly for the same reason. After taking into consideration the relevant facts and circumstances of the case, we are inclined to agree with the allegations of the complainant party that the police in the beginning did not investigate this case on correct lines and the possibility of the influence of Mr. Abdul Ghafoor Shaheen, Magistrate Ist Class over the local police cannot be ruled out. We are further convinced that the occurrence did lake place and Mst. Shamshad Mai P.W. was subjected to Zina‑bil‑Jabr in the house of the accused by one of the accused persons.

19. The question, however, which arises for consideration is as to who committed this offence out of the two accused persons namely Muhammad Shoaib and Muhammad Jamshed. In the first report which was in the form of written complaint duty signed by Muhammad Ismail complainant, there is mention of the name of only Muhammad Shoaib as accused who committed this offence. In other words the name of Muhammad Jamshed appellant as an accused person was not mentioned in that complaint. The allegation of the complainant party is that due to the influence of Mr. Abdul Ghafoor Shaheen, Magistrate 1st Class real brother, father of the accused, the police did not record the correct statement but got his signature on a blank paper. However, we find that this document Exh. P.C. was a written complaint addressed to the S.H.O. Police Station, Bahawalpur which is signed by Muhammad Ismail complainant in his hand but his signature seems to be different from the said complaint. It was on the basis of this written complaint that formal F.I.R. Exh. P.G/l was prepared in the police station. Even in the statement of various P.Ws. recorded under section 161, Cr.P.C. the name of Jamshed as an accused person is missing. Even in the various complaints submitted to the higher authorities by Muhammad Ismail complainant against the local administration and Mr. Abdul Ghafoor Shaheen, there is no allegation that Jamshed appellant was the real accused but was erroneously excluded for ulterior motive. It seems it was at a latest stage that the prosecution thought to involve Jamshed appellant in this case because the case of the prosecution against co‑accused Muhammad Shoaib was not going to succeed. It was on 31‑8‑1983 that Akbar Ali Sub‑Divisional Police Officer, Ahmadpur East who at that time was incharge of the investigation submitted the following application (Exh. P.F.):‑--

For the first time mentioning the name of Jamshed as an accused person. Accordingly, Dr. Javed Hassan Ajmi P.W. obtained the semen of tire present appellant on 1‑9‑1983 and put the same in a vial and handed over to the police. It appears that co‑accused Muhammad Shoaib could not produce any semen. After securing the semen of this appellant the prosecution sent the following articles to the Serologist, Government of Punjab, Lahore to determine the semen grouping:‑--

"1209/1 Blue Shalwar

1209/2 Printed Shalwar.

1209/3 Piece of cloth.

1209/4 Semen of Jamshed accused."

The Serologist vide report, No. 1175, dated 4‑10‑1983, Exh. P.L. opined that all the above‑noted items were group 'O'. On the receipt of the report of the Serologist the prosecution on 10‑10‑1983 wrote Tattima statement of Mst. Shamshad Mai (Exh. D.J.) in which for the first time she involved the present appellant as the person who committed Zina with her. Similarly, Tattima, statement Exh. D.K. of Mst. Mumtaz Mai was written on the same day involving the present appellant. it was thus after 10‑10‑1983 that for the first time Jamshed appellant was arrested arid treated as an accused person. It is in this factual background that we have to determine the bona fide of the prosecution regarding the involvement of the present appellant. The occurrence as mentioned above had taken place on 3‑6‑1982 and during this period much water had flown under the bridge. Even the complainant had realised the influence of Mr. Abdul Ghafour Shaheen, Magistrate. Ist Class much earlier and he had been submitting applications to various higher authorities in this behalf. There is; however, nothing on the record that the submitted any application or raised any protest to the appropriate authority that in fact the real culprit was the present appellant and nut his younger brother co‑accused Muhammad Shoaib. We have repeatedly asked the learned counsel for the State as well as the learned counsel fur the complainant to explain this long delay of over 16 months in involving the present appellant. The complainant Muhammad Ismail had been submitting applications to the higher authorities against the hostile attitude of the local administration especially the police but there is no mention of the fact that the police dishonestly excluded Muhammad Jamshed appellant as an accused person and involved only his younger brother Muhammad Shoaib. According to the learned defence counsel this circumstance alone is sufficient to create doubt in the prosecution case.

20. Another circumstance relied upon by the defence is that tire complainant Muhammad Ismail submitted a private complaint under section 10(3) of the Ordinance before the Sessions Judge, Bahawalpur but the same was dismissed for non prosecution on 18‑6‑1984. According to the defence, this fact also creates an element of doubt in the prosecution case.

21. The two medical examinations of the prosecutrix also create some doubt in the prosecution case. According to the prosecutrix, the present appellant committed Zina‑bil‑Jabr with her. However, both the medical examinations show only an attempt for rape. The lady doctor also found a green adhesive strip to the mons but it is not explained when and by which and for what purpose this strip was stuck.

22. After taking into consideration the relevant facts and circumstances of the case, we have reached the conclusion that the case of the prosecution against the present appellant is full of doubt. He can legitimately claim the benefit of such doubt. Accordingly, while giving the benefit of doubt to Muhammad Jamshed appellant, we accept this appeal, set aside his conviction and sentences and acquit him of the charge. He is already on bail, his bail bonds shall stand discharged.

M.Y.H. Appeal accepted.

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