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Criminal Appeal No. 132/1, of 1986, decided on 12th November, 1986.

‑‑‑Ss. 10(2) & 16‑‑Solitary witness, the prosecutrix‑‑Evidentiary value of‑‑Prosecutrix allegedly abducted by accused and another person from her Chak‑‑Both accused distantly related and resident of another Chak‑ Prosecutrix taken to different cities and was subjected to sexual intercourse by both and another person for 1 months‑‑Prosecutrix persistently deposing about commission of offence by accused and his two companions‑‑Police disbelieved prosecutrix and challaned only one accused‑ ‑Prosecutrix also disbelieved by Trial Court about her abduction‑‑No other evidence of abduction available on record‑‑Evidence of recovery of prosecutrix from accused at Railway Station also not available.‑‑ Prosecutrix was taken home and matter was reported after deliberation‑‑No report lodged by father on finding his daughter missing‑‑Father admittedly inimical to accuse d‑‑Prosecutrix medically examined after four days of report‑‑Accused available to police but no Specimen of Semen from accused for purpose of grouping taken‑‑Medical report would be of no consequence and it would not be safe to maintain conviction on solitary statement of prosecutrix in circumstances.

Muhammad Ismail Qureshi for Appellant.

Kh. Shaukat Ali for the State.

Date of hearing: 12th November, 1986.

‑‑This is an appeal against the judgment/ order, dated 30‑3‑1986 passed by Ch. Muhammad Ali, Additional Sessions Judge, Khanewal whereby Muhammad Akram son of Walidad has been convicted under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced as under:‑‑---

"Under section 16 of the Ordinance to five years R.I. with 10 stripes and a fine of Rs.2,000 or indefault of payment of fine to further undergo R.I. for one year and under section 10(2) of the Ordinance to five years R.I. and whipping numbering 15 stripes and also a fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for one year.

Both the sentences are to run concurrently.

2. One Mst. Amiran Mai alias Shamoo accompanied by her father Ahmed Yar approached A.S.I. Nazir Ahmad of Police Post Abdul Hakim Police Station Sarai Sidhu, on 19‑1‑1985 at 7‑30 a.m. and complained that 1 month before at 7‑00 p.m. she had gone out of her house to the cotton field (in Mauza Chak Sharaja Tehsil Kabirwala within the jurisdiction of the Police Station Sarai Sidhu, District Khanewal) and was sitting in the field for easing herself Muhammad Akram son of Walidad resident of Mubarakabad and Muhammad Yaqoob son of Muhammad Ramzan resident of Chak Sahwanwala, Elaqa Thana Talamba, both distantly related to her, forcibly caught hold of her and closed her mouth with a piece of cloth and took her to the Pacca road where a wagon was parked there. She was put on that wagon and was taken to Multan by accused person. At Multan, she was kept in a house, Muhammad Akram and his companion Muhammad Yaqoob committed Zina against her wishes during the night. Next day Muhammad Akram son of Walidad and brother of Muhammad Akram reached there and with his consultation she was taken on a bus to Karachi where she was kept in a house which was rented by them already and for 1 months there both committed) Zina‑bil‑Jabr. Muhammad Aslam also reached Karachi and advised them to sell her but Muhammad Akram and Yaqoob failed to sell her away. Muhammad Aslam relieved from Karachi and Muhammad Akram compelled her to marry Muhammad Yaqoob but did not succeed and both of them brought her to Multan in a train where she saw her father and maternal uncle (both are named Ahmad Yar) who had gone there in her search and narrated the story to them. Muhammad Akram and Muhammad Yaqoob, however, succeeded in running away. She reached her home and the next day her father presented her before the police. This statement was drafted by Nazir Ahmad (P.W. 6) and the same was sent to the Thana where the formal F.I.R. was registered by Muhammad Shaft M. H . C . (P. W . 5 ), on 19‑1‑1985. The investigation was conducted and Mst. Amiran Mai was sent to the hospital where she was examined, on 22‑1‑1985 by Lady Dr. Miss Zubaida Riaz, Senior Women Medical Officer Civil Hospital, Multan. No mark of injury on any part of the body including private parts was found. Her hymen was torn and torn edges were healed completely, vaginal office admitted two fingers. She was found menstruating (3rd day of menses). Two vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. The opinion was reserved till the receipt of the report of Chemical Examiner which was later received. The swabs were found stained with semen and blood by the Chemical report Exh. PA/1. It is alleged that Ahmad Yar, the father of Mst. Amiran Mai produced a birth certificate wherein the date of birth of Mst. Amiran is entered as 18‑8‑1970 in the birth register of Municipal Committee Abdul Hakim Khanewal (no inventory was prepared nor Ahmad Yar when appeared before the trial Court made any mention of any birth certificate in respect of hst. Amiran Mai). The accused when arrested was got examined, on 22‑1‑1985 by Dr. Muhammad Rafi (P.W. 4) and was found potent. After the completion of the formalities only the appellant Muhammad Akram was sent up for trial.

3. The learned Additional Sessions Judge framed the charges under sections 11 and 10(3) of the Ordinance to which the accused/appellant pleaded his innocence and the prosecution produced six witnesses. They are P.W. 1 (Lady Dr. Miss Zubaida Riaz) P.W. 2 (Mst. Amiran Mai, the prosecutrix), P.W. 3, Ahmad Yar son of Machhia, the father of the prosecutrix) P.W. 4 (Dr. Muhammad Rafi), P.W. 5 (Muhammad Shafi) and P.W. 6 (Nazir Ahmad S.I. Police). As would be found from the above narration except Mst. Amiran (P.W. 2) there is no eye‑witness and the prosecution case depends on the solitary statement of the prosecutrix and lady doctor (P.W. 1) and also the report of the Chemical Examiner. P.W. 3 the father of the prosecutrix has deposed whatever he heard from Mst. Amiran Mai when she had come back home and had made no report when his daughter was found missing from the house. But in the cross‑examination admitted that he had enmity with the accused since a period of eight years and they had not any talking terms with each other and exactly this is the defence of the accused/ appellant contained in answer to the question why this case against him." The accused said that 'father of the complainant who is related to me has falsely involved me in this case because of my enmity and strained relations with him".

4. The learned Additional Sessions Judge did not believe the prosecution story as narrated by Mst. Amiran about her forcible abduction as she raised no alarm nor disclosed to anybody that she was forcibly abducted according to the learned Judge, she was a consenting party and had left with the accused of her free will and consent and in this opinion relied on the medical certificate Exh. P.A. wherein it has been stated that Mst. Amiran was used to sexual intercourse, she had not been married by then . . . . According to the learned trial Judge she was a major girl and had attained puberty before the alleged abduction. Since it was stated by Ahmad Yar (P.W. 3) that Mst. Amiran Mai had come on train from Karachi with the accused it was inferred by the trial Court that the accused had taken away Mst. Amiran, the offence of Zina was established as the allegation was made by her. These findings have been challenged by the learned counsel appearing for the appellant before us.

5. We have heard the Advocate for the appellant and the State counsel and have perused the record very carefully. There is no evidence on record except the solitary statement of Mst. Amiran Mai who has persisted in her deposition before the trial Court that the offences were committed by the accused/appellant and with him were Muhammad Yaqoob and brother of appellant named Muhammad Aslam and the part played by all these persons is almost the same. Mst. Amiran had not been believed by the police as is apparent from the fact that Muhammad Yaqoob and Muhammad Aslam have not been challaned. The trial Court also did not believe Mst. Amiran Mai on the point of taking her away from the field in Mauza Chak Sharja and there is no other evidence about abduction. The father of Mst. Amiran did not lodge any report when he had found his daughter missing and there is no evidence of recovery from the Railway Station, Multan. The arrival of the accused with Mst. Amiran from Karachi at Multan, if it was true could have been established by the fellow passengers or the prompt report of the father who had gone to the railway station to search for his daughter and was also accompanied by his brother‑in‑law. The accused could easily be arrested by them and there at the station. Mst. Amiran Mai was taken home from the station and the matter was reported after deliberation. The Courts have viewed the first information with suspicion when there has been delay and when it has come from the persons inimical towards the persons complained against.

6. The medical report in the instant case is of no consequence because Mst. Amiran was allowed to home and the matter was not promptly reported to the police, The medical examination was got conducted on 22‑1‑1985 while the F.I.R. was lodged, on 19‑1‑1985 at 8‑20 (day time). The appellant was available to the police, on 22‑1‑1985 the specimen of semen from the accused for the purpose of grouping in the circumstances of the case for the identification of the accused would have brought home, the guilt of the accused beyond any shadow of doubt. This was pointed out by Mr. Justice Aftab Hussain, Chief Justice in Mst. Ehsan Begum's case P L D 1983 F S C 204. The facts of the reported case are identical to the instant case. We are in respectful agreement with the learned Chief Justice and hold that it is not safe to maintain the conviction. The appeal is allowed and the conviction and sentences passed against the accused/ appellant Muhammad Akram son of Walidad are accordingly set aside. He shall be released forthwith if not required in any other case.

S. A. Appeal accepted.

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