P L D 1966 (W (PLP)

The appellant, Shan Khan, was tried on the charge under section 376, P. P. C. and by his order dated the 30th of November 1962, recorded by the Sub‑Divisional Magistrate, Chakwal, was convicted and sentenced to six years rigorous imprisonment.

2. Mst. Speadan Begum, daughter of Sumundar, resident of Dhok Daberi, Tehsil Chakwal, lodged a report with police station, Neela, on the 12th of May 1962, at 6‑30 p.m. stating that on the 9th of May 1962, at chhoti peshiwela, she was cutting grass in the field of her uncle. The appellant accompanied by Ghulam Hussain emerged at the spot and caught hold of her, laid her down, and. committed rape upon her. Ghulam Hussain was keeping watch. In the meanwhile, Ayyub Khan, cousin .of the prosecutrix appeared on the scene who raised an alarm which attracted Amir Khan from his field and the appellant and his companion ran away. After the arrival of Amir Khan (P. W. 3) the. prosecutrix narrated the occurrence to him and then she along with Amir Khan and Ayyub Khan proceeded to the village, Her father being away from the house, therefore, on the return of S, her uncle to the house, he was appraised of what had happened and she was taken to Chakwal where on the 12th of May 1962, she was medically examined by Lady Doctor, and on the same A day the report Exh. P. A. was made at 6‑30 p. m. at the police station. In the opinion of the Lady Doctor, rape was committed upon her within six days, but no marks of violence were found on her. The chaddar Exh. P. 1 (which was worn by the prosecutrix at the time of the occurrence was taken into possession on the 13th of flay 1962. The same was found stained with semen vide Chemical Examiner's report Exh. P. F. The delay of more than two days in making the report was explained by the prosecutrix stating that her father was not present in the village and that she waited for her uncle to inform him of the occurrence. The same day at Ishawela her uncle came to the village and that the following day she was taken by her uncle for making the report.

3. It is to be noted here that in the, (POLICE KARWAI), after the F. I. R. was recorded, it is not mentioned that her uncle had accompanied her to the police station. Serious objection, was raised on the ground that either the case was concocted against the appellant, or, if he had sexual intercourse with the prosecutrix, it was with her consent and having been surprised during the act she charged the appellant in order to exonerate herself before her family. Muhammad Ayyub (P. W. 2) is the cousin of the prosecutrix, whose conduct appears unnatural inasmuch as he pursued the accused for only a few paces and was satisfied with taking the girl to the village. The unusual conduct of Ayyub Khan makes one ponder before accepting his testimony to be true. The presence of Ghulam Hussain along with the appellant was alleged by the prosecutrix but his presence on the spot is denied by Amir Khan (P. W. 3). It is again a matter of serious con sideration to know the purpose of Ghulam Hussain being intro duced at the scene which is denied by the eye‑witness. Rather it goes to meet halfway a contrary view that in order to depict the incident ostensibly attended by force he was placed on guard by the prosecutrix. The chaddar, stated to be stained with blood, was not found as such by the Chemical Examiner. It is not free from doubt whether it was the same chaddar or not. The possi bility of staining the chaddar with semen for the purpose of procuring evidence cannot be ruled out. This piece of evidence cannot be used against the appellant without caution. The two ocular witnesses did not see the occurrence right from the outset, they could only see when it was 'in progress, therefore, it cannot be said with reasonable certainty as to whether it began in an atmosphere of consent or it was against the will of the prosecutrix.

4. The place of occurrence is an open field. It is not in evidence that the view of the place was obstructed by something intervening, that is, how Amir Khan could see the culprit while decamping. It is again inexplicable as to how could physically the prosecutrix be rendered helpless that in a split second her mouth was gagged and she could not raise a cry for help. Amir Khan P. W. was not far away who could even hear a groan or sigh, had there been any. Amir Khan P. W. is not hard of hearing as he heard the challenge of Ayyub Khan therefore, it is matter of consideration that his attention was not drawn to the occurrence till a cry was raised by Ayyub Khan.

5. The site plan and the notes thereof is gravely in conflict with the statement of the prosecutrik inasmuch as she stated that she was caught when she was cutting grass, whereas Point No. 2 in the plan denotes the place whence the appellant took her to Point No. 3, where she was revished, wherefrom the blood should have been recovered by the Investigating Officer, as per statement of the prosecutrix blood did fall there. It is again significant to note that Amir might not have seen what actually happened because he did not mention in his police statement that he than seen the appellant and the prosecutrix together. Ayyub Khan saw the occurrence from a "distance of 100 yards and raised an alarm (as stated by Speadan Begum in her statement). It, therefore, follows that we have to look to the solitary statement of Mst. Speadan Begum as to how was the beginning of the crisis. She reached the police station at peshiwela and the report was recorded at 6‑30 p.m. It is again an important factor to take note of, amazing enough that her uncle did neither accompany her to the police station nor he was produced in evidence.

6. The opinion of the doctor who examined the prosecutrix carries considerable weight. In the cases of rape it is not the internal examination alone but the examination of the victim must also be kept in view. According to Modi's Medical Jurispru dence‑13th edition, page 32, the body, specifically the face, breasts, chest, lower part of abdomen, limbs and back should have marks of violence, such as scratches and bruises, as a result of struggle. Such marks are likely to be found on the bodies of grown up women who are able to resist. In the instant case there are none. In order to rule out .the possibility of bringing a false charge with the object of blackmail or the sexual act of consent but to save her own reputation the girl turned out hostile and accused her paramour, the version of‑ the woman must be sup ported by medical evidence. In a rape case, it is not necessary to look to the explanation given by the accused because he may well be too ashamed to confess to his lust and if he were not too ashamed to do so, it has to be kept in view that the accused probably thought that such grave admission will not be short of courting a serious risk and, therefore, the accused refused to disclose what actually the affair was. Where there are no satisfactory and reasonable indications of unwillingness by the prosecutrix as are manifest in the present case, while there are lapses and contradictions in the evidence such as would only arise if she had consented and afterwards pretended to be innocent, the resultant doubt is established and the accused is entitled to it: In the case of Mohla Ram v.‑ Emperor (1) it was held: "Where there is no independent evidence in support of the statement of the complainant that she was raped by the accused, it would be most dangerous to base conviction on her un corroborated testimony alone; the first and foremost circum stances that can be looked for in cases of rape is the evidence of resistance which one would naturally expect from a woman unwilling to yield to a sexual intercourse forced upon her."

7. The lady doctor based her opinion of a recent sexual intercourse with Speada Begum on the prosecutrix's statement that she felt pain at the time of her examination, which was not the direct result of the observation of the witness. The lady doctor stands contradicted by the statement of Dr. Muhammad Afzal, Medical Officer, who stated that it was wrong to suggest that vagina should admit two fingers and at the same time pain should also be felt. A fact acceptable to two possible interpretations entitles the accused to the one, favourable to him. The defence witnesses including Ghulam Hussain, the alleged companion of the appellant, attributed laxity of character to the prosecutrix.

8. There is absolutely no evidence on the record of any struggle having taken place, nor were marks of any injury found on the person either of the complainant or of the accused, I, therefore, hold that rape has not been proved to have been committed upon the prosecutrix. With these observations I come to the conclusion that the guilt of the accused has not been established beyond any reasonable doubt. I set aside the con viction and sentence of the appellant and acquit him. He shall be released forthwith if not wanted in any other case. S. Q. Appeal accepted.