1989 P Cr (PLP)

S.M. Almas Ali for Petitioners. Farooq Bedar, A.A.‑G. with Mirza Muhammad Azam Beg for the State. Date of hearing: 18th December, 1988. The Petitioners, Abdul Manan and Muzaffar Ahmad, have moved this criminal revision under section 439, Cr.P.C. against the judgment of their conviction and sentence. The petitioners were convicted under section 377, P.P.C. by the learned Resident Magistrate, Rabwa, vide his judgment dated 2‑4‑1976 and were sentenced to one year's R.I. each. 2. The case is that the complainant, Maqsood‑ul‑Haq, is a student of Second Year of T.I. College, Rabwa. The complainant as well as the petitioner Abdul Marian were going back to their houses after College had closed. When they reached near the Aqsa mosque at about 2‑00 p.m. on 25‑11‑1975, Abdul Manan asked Maqsood‑ul‑Haq that they should prepare their lessons on the back side of the mosque. Accordingly, both of them proceeded towards the hills on the opposite side of the mosque. There, the petitioner Abdul Manan separately had a conversation with the co‑accused Muzaffar Ahmad and Nasir Ahmad and thereafter all of them went towards the place where the complainant was present. Muzaffar Ahmad, petitioner, threw the complainant on the ground and the co- accused Nasir Ahmad forcibly removed his trousers. The complainant tried to raise noise whereupon Abdul Marian, petitioner took out a knife and threatened him with dire consequences if he tried' to make noise. Thus, the offence was committed. Rehman and Akber P.Ws. came at the spot and saw the occurrence and rescued the complainant from the clutches of the accused‑party. The petitioners denied the allegations levelled against them while making statements under section 342, Cr.P.C. The learned trial Court believed the prosecution evidence and convicted and sentenced the petitioners as observed earlier. The appeal of the petitioners was accepted and the case was remanded for their re trial to the learned trial Court. 3. Learned counsel for the petitioners has contended that Rehman P.W.5 and Muhammad Akbar P.W.7 are the two eye‑witnesses and they have not supported the case of the prosecution. It is next submitted that the only statement of the complainant Maqsood‑ul‑Haq remains in the field and that has not at all been corroborated by any other independent evidence. Learned counsel submits that three swabs stained with semen were not proved to have remained in proper custody as required by law. He states that the report of the Chemical Examiner regarding one swab has not been brought on record and as such it is not proved. Similarly, the learned counsel states that there is a delay of 36 hours in lodging the F.I.R. and that no explanation in that behalf has been offered by the prosecution. The learned State counsel has tried to defend the judgment of the learned Additional Sessions Judge whereby he has directed that the petitioners be re‑tried by the trial Court. However, the learned Additional Advocate‑General is present and has made a statement that in view of the evidence available on record no useful purpose shall be served if the petitioners are remanded for re‑trial by the trial Court. He states that the occurrence pertains to the year 1975 and as such it is not desirable at this belated stage that they should be re‑tried in the case where admittedly there is no evidence except the statement of the complainant. 4. I have heard the learned counsel for the parties and have perused the record. It is admitted that the two eye‑witnesses namely, Rehman P.W.5 and Muhammad Akbar P.W.7 do not at all support the case of the prosecution. In my considered view, the statement of Maqsood‑ul‑Hassan complainant P.W.3 is not at all supported by any other independent evidence. Learned counsel contended that the swabs taken in the case have not been proved to have remained in proper custody and that the report of the Chemical Examiner regarding one swab has not at all been brought on record. This fact has created considerable doubt in the truthfulness of the prosecution case. Further, the question of delay in lodging the F.I.R. has not been explained by the prosecution adequately. The learned Law Officer has made a categorical statement that in the circumstances of the case, State is not interested in re‑trial of the petitioners, at this belated stage. In view of the categorical statement of the learned Law Officer, there appears to be no justification to uphold the judgment of the learned Additional Sessions Judge, directing the re‑trial of the petitioners. In my view, there is no sufficient evidence against the petitioners available on record. Rehman P.W.5 and Muhammad Akbar P.W.7 have not supported the case of the prosecution. 5. The upshot of the above discussion is that there is no justification in allowing retrial of the petitioners at this stage. In consequence, this petition succeeds and is allowed. The impugned orders dated 2‑4‑1976 and 6‑7‑1978 passed by the learned Magistrate 1st Class, Rabwa and the learned Additional Sessions Judge, Jhang are set aside and the petitioners are acquitted. The petitioners are on bail. They are discharged from their bail bonds. H.B.T./A‑561/L Petition allowed.