MUNIR Versus STATE

1. Munir appellant was convicted under section 376, P. P. C. and sentenced to rigorous imprisonment for five years with a fine of Rs. 1,000 or in default further rigorous imprisonment for six months by the order dated 3rd of May 1973 of Ch. Muhammad Aslam then posted as Magistrate Section 30 at Samundri which forms the subject‑matter of this appeal on the short ground of inordinate delay in lodging the report with the police and absence of material corroboration from any other independent source.

2. It was alleged that Munir appellant had caught hold of Mst. Surraya (P. W. 1) while drinking water from a channel and dragging her into a nearby sugarcane field committed rape on bar on the 19th of November at about midday in the area of Chak No. 215 G. B. of Police Station Samundri, District Lyallpur. Her hue and cries attracted Mst. Sairan (P. W. 3) her khala (mother's sister) and her husband Ilam Din (P. W. 4), who saw him running from near her after picking up his loin cloth. They took her to her house where she told the tale of her woe to her mother, but no report was lodged with the police till 10‑ 10 a.m. on the 23rd November. 1971 when Asghar Masih (P. W. 2) contacted Sub Inspector Sher Muhammad (P. W. 7) in the compound of the Tehsil Courts who recorded his statement (Exh. P. A.) about it and forwarded the same to the Police Station for the formal registration of the case. He had produced Mst. Surraya P. W. before him who carried her to the Civil Hospital at Samundri and got her medically examined from Dr. Mrs. Shamim Barlas P. W. 6. at 11.00 a m. on the same day ride Exh. P. C.

2. On being taken through the record I am inclined to agree with the contentions of his learned counsel as no satisfactory explanation was forthcoming for the delay of full four days in reporting this serious offence to the police. It was urged that as Asghar Masih (P. W. 2) her brother had gone to village Ghanian and returned on that day and the lodging of the report had been put of till then, which did not appeal to reason as it was admitted by Mst. Surraya in her statement before the trial Court that her other brothers, father and uncle as also other members of her brotherhood were available in the village for consultation and taking her to the police station on the very day of the alleged occurrence. It is also unusual that in spite of the presence of Mst. Surraya (P. W. 2) the F. I. R. was not drawn out on her statement. Even otherwise the initial report Exh. P. A. of her brother Asghar Masih was taken down on a blank paper although he had contacted the S. I. at the police station as disclosed in his evidence which also revealed that Asghar Masih P. W. had returned a day earlier and waited till the next day for contacting the police but gave no reasons for the same. Anyhow this fact was also suppressed in Exh. P. A. wherein it was indicated that he had come back to the village on the same morning. Mst. Surraya P. W. had further admitted that Sharif Arathi and Nur Muhammad Lambardar of Chak No. 210 had accompanied them to the Police Station which showed that some deliberations had taken place in the matter but Asghar Masih P. W. deposed that he was not accompanied by any other person. The karwai police under Exh. P. A. was however silent about it which betrayed that it was suppressed with the connivance of the S. I. All these factors lent grave doubts to the prosecution case from its very outset. Anyhow the medical evidence about the physical fitness of the appellant to perform a sexual act and that about the private parts of Mst. Surraya, the alleged victim of this rape was inconclusive, especially when no semen was detected in the swabs taken there from. The absence of injuries on her private part or any other part of body would negate any force used against her in dragging her or throwing her on hard ground of the sugarcane field which were essential in case of any resistance by her. The admission of two fingers in her vagina also belied her claim that she was a virgin. Anyhow with deformity detected in the organs of the appellant he could not have succeeded in accomplishing the sexual act without her consent.

3. In the presence of Mss. Sairan (P. W. 3) her 'khala and Ilam Din (P. W. 4) her khalu in the nearby field the appellant could not have ventured upon this enterprise and the contention that Mss. Sairan leaving her load of cotton with Mst. Surraya P. W. had started picking up sagh, from the adjoining crops, was neither mentioned in the F. I. R. Exh. P. A. nor in the police statement of Mst. Saran herself (copy Exh. D. B) which appeared to be mere embroidery in the case and the appellant could not be denied the benefit of all these doubtful circumstances. I have therefore to accept this appeal and setting aside his conviction direct that he shall be set at liberty forthwith if not required iii any other case.

4. Appeal allowed.