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Criminal Appeal No. 458 of 1976, heard on 6th July, 1985.

-‑‑S. 376‑‑Evidence, appreciation of‑‑Prosecutrix failed to lead evidence to prove that summons issued to lady doctor, who examined prosecutrix, could not be served on her due to her non‑availability‑‑Secondary, evidence to prove medico‑legal report issued by such lady doctor, held, could not be received in evidence by trial Court, in circumstance‑ No corroborative evidence of statement of prosecutrix available on record‑‑Conviction and sentence set aside, in circumstances.

S. Shamim Abbas Bokhari for Appellant.

Ch. Abdul Aziz for the State.

Date of hearing: 6th July, 1985.

This criminal appeal arises from the judgment of learned Magistrate Section 30, Sialkot whereby he on 17‑4‑1976 convicted Nasim Ahmad appellant under section 376/342, P.P.C. and sentenced him to five years and six months' R.I. respectively.

2. Since after hearing the learned counsel for the parties, I feel inclined to accept the appeal and set aside the conviction and sentence of the appellant on account of legal infirmity in recording the secondary evidence of Miss B.A. Ghani, Dispenser to prove the medical‑legal report issued by Lady Doctor Hamila Mumtaz. I need not to set out the facts in detail and enter into the merits of the case. I find that prosecution has not led evidence to the effect that the summons issued for the appearance of Lady Doctor Hamila Mumtaz could be served on her due to her non‑availability, therefore, secondary evidence to prove medical legal report issued by her, could not have been received by the learned trial Court. There is also no corroborative evidence of the statement of the prosecutrix on record. In these circumstances no useful purpose would be served by sending the case to the trial Court. The appellant is, therefore, acquitted of the charge.

S.G.D. Appeal allowed.

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