Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the learned Federal Shariat Court dated 19.1.200 wherein the appeal filed by the petitioner against his conviction we dismissed. The brief facts out of which the present petition arises are that petitioner alongwith his acquitted co-accused were involved in a case FIR No. 39 which was registered at Police Station Naushera, District Khushab on 20.6.2002 under Sections 11/10 of Offence of Zina (EOH)
Ordinance, 1979 on the complaint of Sher Muhammad PW10. The contents of the FIR reveal that Sher Muhammad alleged that his daughter Mst. Kausar Naheed aged 16/17 years has been abducted by the petitioner who was once his neighbour. The contents of the FIR further reveal that Mst. Nasreen sister of the petitioner and one Muhammad Ramzan facilitated the commission of the offence. It is further alleged that during the night between 24-25/5/2002 Mst. Kausar Naheed daughter of Sher Muhammad was found missing and in the morning he came to know through PW-8 about abduction of his daughter Mst. Kausar Naheed by the petitioner and his acquitted co-accused with the intention to seduce her to illicit intercourse and the complainant after his failure to get back his daughter from the petitioner, lodged report on 20-6-2002 against the petitioner and his acquitted co-accused. The police investigated the case and sent the accused to face trial before the competent Court. The trial Court completing legal formalities such as recording of evidence and statement of the accused. Consequently learned Additional Sessions Judge vide its judgment dated 27-8-2003 convicted and sentenced the petitioner as under: Name of accusedUnder SectionSentence Muhammad 16 of Offence of7 year' R.I. with fine of Zubair Zina (EOH) -Rs. 10,000/- in case of default of Ordinance, 1979.payment of fine to further suffer. 3 months' S.I. Sentence of fine of Rs. 40,000/- as compensation under Section 544-A Cr.P.C. to Mst. Kauser Naheed victim and in default to further suffer six months S.I. Benefit of Section 382-B Cr.P.C. was also extended.
It is pertinent to mention here that trial Court had acquitted his co-accused namely Mst. Nasreen and Muhammad Ramzan by giving benefit of doubt. Petitioner being aggrieved filed Jail Criminal Appeal No. 224/I of 2003 before the learned Federal Shariat Court. The learned Federal Shariat Court issued suo moto notice to the victim Naheed Kausar. The Federal Shariat Court vide impugned judgment dismissed the appeal of the petitioner and also had withdrawn notice issued to Mst. Naheed Kausar vide impugned judgment dated 19.1.2005 Hence the present petition.
2. The learned counsel of the petitioner submits that prosecution had failed to prove the case against the petitioner beyond shadow of doubt.
'He further submits that Prosecution witnesses had improved their statements and contradicted each other on material points which were not considered by the both the Courts below. Therefore judgments of both the Courts below qua guilt of the petitioner were not sustainable in the eye of law. He further maintains that the petitioner is involved in this case on account of enmity and this fact was not considered by the both the Courts below in its true perspective. He further urges that on the basis of the same evidence his 2 co-accused were acquitted but both the Courts below erred in law not to give benefit of this fact to the petitioner and convicted the petitioner on the same evidence which was not believed by the both the Courts below against his acquitted co- accused.
3. The learned State counsel has supported the impugned judgment. He further submits that the statement of the victim was duly supported by the medical evidence and both the Courts below after proper appreciation of evidence have come to the concurrent conclusions qua the guilt of the petitioner, therefore the petition is liable to be dismissed.
4. We have considered the submissions made by learned counsel for the parties and have perused the record. Normally this Court, does not, interfere with the findings of fact arrived at by the Courts below while exercising Constitutional jurisdiction after its satisfaction that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence meaning thereby in case the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis-application of principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible, then it is the duty and obligation of this Court to interfere in the concurrent conclusions arrived at by the Courts below. In present case, however, it is difficult to avoid the impression that the conclusions reached by the Federal Shariat Court and the trial Court suffered from serious errors of law and fact, which unless set .right are likely to result in miscarriage of justice. The petitioner had taken a specific plea in reply of Question No. 7 in his statement u/S. 342 of Cr.P.C. that the petitioner was involved in a case on account of enmity and both the Courts below had not scrutinized properly defence version in the impugned judgment. It is an admitted fact that the occurrence took place according to the prosecution on the night between 24/25 May, 2002 at 2:30 a.m. whereas the FIR was lodged on 20.6.2002 after a considerable delay without explanation. Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered. In the present case this piece of evidence qua delay of recording the FIR without explanation creates doubt qua the prosecution story meaning thereby such un- explained delay of almost 26 days makes the investigation of the case doubtful and this fact was not considered by both the Courts in its true perspective. According to the statement of the victim petitioner had abducted her alongwith Mst. Nasreen Akhtar real sister of the petitioner and Muhammad Ramzan. This fact alone is sufficient to discard the statement of victim to the extent that petitioner had abducted her by force by closing her mouth with her dupatta and he threatened her that he would kill her if she raised alarm. She remained with the petitioner for a considerable time more than a month as evident from the statement of the abductee. She could not tried to get rid of from the clutches of the petitioner inspite of the fact she had got various opportunities to raise hue and cry at a public places when the petitioner had taken her from one place to another specially when her age was 16/17 years. It also does not appeal to common sense that the petitioner had abducted 'the victim alongwith her sister to illicit intercourse. The contents of the FIR clearly show that complainant found the victim in the morning from his house, therefore, Sher Muhammad complainant was himself not a witness of abduction whereas Zahoor Ahmad PW-8 had failed to show his presence at the Adda Ucchali at the time of alleged abduction. It is pertinent to mention here that there is no direct evidence of Zina-bil-jabr against the petitioner except the sole statement of the victim. Even otherwise in case the evidence of the victim be read as a whole then ingredients of Zina-bil-jabr are not attracted. It is pertinent to mention here that there was no report of chemical examiner regarding the swabs of victim inspite of the fact according to the prosecution the parcel was sent to the chemical examiner. This piece of evidence was withheld by the prosecution, therefore, adverse inference could be taken against the prosecution. See Abdul Khaliq u. The State (1995 SCM R 1412) and Abdul Waheed v. The State (1995 SCM R 1498).
5. It is pertinent to mention here that in case the contents of FIR, the statement of complainant, statement of Zahoor Ahmad, statement of victim are put in a juxtaposition then their statements are not in consistent with each other on material points coupled with the fact trial Court had disbelieved the statement of prosecution including victim while acquitting two co-accused of the petitioner, therefore it was necessary to re-examine the evidence by the learned Federal Shariat Court with due care and caution to maintain the conviction of the petitioner but the learned Federal Shariat Court failed to examine the evidence keeping in view this principle. See Aminullah's case (PLJ 1.982 SC 592). It is a settled principle of law that person making contradictory statement cannot be held worthy of credence as law laid down by this Court In Muhammad Shafique Ahmad's case (PLJ 1981 SC 835), The petitioner was convicted under the provisions of enforcement of Hudood Ordinance wherein it is the duty and obligation of the Courts to give reasons for awarding conviction in view of Section 338-F. Reasons as mentioned above are fancy and result of mis reading and non-leading of record.
6. For what has been discussed above, this petition is converted into appeal and same is allowed as a result whereof the petitioner is ordered to be released forthwith if not required or involved in any other criminal case.