1995 PLP 954 (MLD)

Mian Abdul Qayyum Anjum for the State. Date of hearing: 18th January, 1995. On 27‑5‑1991 Mst. Rukhsana Bibi unmarried daughter of complainant Muhammad Saddique was returning from the shop of her father at about 9‑00 in the night when she was called by her friend Mrs. Rashi. Thereafter Rukhsana Bibi did not come to her house. The complainant came to know that his daughter had been abducted by appellant Amanat Ali. The complainant submitted a written complaint in Police Station, Saddar Mian Channu on 30‑5‑1991 at 8‑15 in the night. Mst. Rukhsana Bibi came back to the house on 30‑5‑1991 and she was medically examined on 31‑5‑1991. After the dismissal of pre‑arrest bail, appellant Amanat Ali was arrested on 31‑8‑1991 and Mst. Rashi was arrested on 4‑12‑1991. After investigation both the accused were sent up for trial before the Additional Sessions Judge, Khanewal, who charged both of them under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Appellant Amanat Ali was also charged under section 10(3) of the Hudood Ordinance. Both the accused pleaded not guilty to the charges and claimed trial. Nine witnesses were produced by the State in proof of the prosecution case whereas both the accused made deposition under section

342. Cr.P.C. but they neither produced any defence nor made any deposition on oath.

2. After the conclusion of the trial accused Mst. Rashi was acquitted whereas accused Amanat Ali appellant herein was convicted under section 18 of the Hudood Ordinance and was sentenced to undergo rigorous imprisonment for 7 years. The convict Amanat Ali has challenged his conviction and sentence by the appeal in hand.

3. I have heard learned counsel for the parties at length and was also taken through the entire evidence of the case.

4. According to the medical examination of Mst. Rukhsana Bibi carried out by P.W.9 Lady Dr. Sultana Mussadaq on 31‑5‑1991 there were not marks of violence on any part of her body, hymen was intact and vagina admitted just tip of index finger. The lady doctor had also taken 4 vaginal swabs of Mst. Rukhsana Bibi which were found stained with semen. The lady doctor gave opinion that attempt of commission of sexual intercourse had taken place. Appearing as P.W.6 Mst. Rukhsana Bibi charged appellant Amanat Ali for abducting her and for subjecting her to Zina‑bil‑Jabr in village Fastpur. In cross‑examination she stated that the appellant had subjected her to rape 2/3 times, she tried to resist and sustained abrasions and scratches during the struggle but in spite of her resistance he committed Zina with her and she suffered pain when the appellant committed intercourse with her.

5. It shall be seen from the testimony of the lady doctor that Mst. Rukhsana Bibi had neither sustained any injury on any part of her body, nor her hymen was ruptured, nor her vagina admitted even one finger with ease. This will show that Mst. Rukhsana Bibi was not subjected to actual sexual intercourse. On the contrary she charged appellant for subjecting her to actual rape 2/3 times and she had also sustained some injuries while offering resistance. The testimony of Mst. Rukhsana Bibi does not find any support from the medical evidence. It would clearly indicate that she was not subjected to actual sexual intercourse. In so far as the point that an attempt to commit sexual intercourse was made that also does not find any support from the medical evidence. There was neither any injury on the private parts of Mst. Rukhsana Bibi nor there was any other proof, except the report of the Chemical Examiner that she had been subjected to sexual intercourse. The availability of semen stains on the vaginal swabs does not prove that any attempt was made. The clear assertion of Mst. Rukhsana Bibi was negated by the medical evidence. From the aforesaid circumstances I have come to the conclusion that not even attempt of rape or sexual intercourse was committed by the appellant against Mst. Rukhsana Bibi and the appellant was convicted and sentenced without any evidence on the record.

6. Consequently the appeal is accepted. The conviction and sentence of appellant Amanat Ali son of Nazir Ahmad awarded by the learned Additional Sessions Judge, Khanewal on 7‑6‑1994 are set aside. He is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. N.H.Q./939/FSC Appeal accepted.