' JUSTICE MUHAMMAD FARRUKH MAHMUD (MEMBER).--- This petition seeking leave to appeal is directed against the judgment dated 20-6-2005 passed by the learned Federal Shariat Court in case F.I.R. No,14 registered at Police Station Kamoke on 13-1-2002 for offence under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereby the Criminal Appeals filed by the respondents were allowed and the criminal revision seeking enhancement of sentence by the petitioner was dismissed, the judgment dated 5-3-2003 handed down by the learned trial Court whereby the respondents were convicted for offence under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and each of the respondent was sentenced to 10 years' R.I.
And fine of Rs,50,000 was set aside.
2. The law was set in motion through written application (Exh.P.B.) by Khalid Javed P.W.2 father of the petitioner Mst. Saira Bibi. On the basis of the Exh.P.B, formal F.I.R. Exh.P.B./1 was registered for offence under section 11 of the Ordinance. According to F.I.R. Mst. Saira Bibi daughter of complainant, aged about 16-17 years was studying in 2nd year in Government College Kamoke.
Mst. Shaheen Akhtar wife of complainant (step-mother of Mst. Saira Bibi) used to drop Mst. Saira Bibi at College and bring her back after the college hours. On the fateful day on 10-1-2002 wife of the petitioner brought'Saira Bibi to college at about 9 a.m. At about 2 p.m. She went back to the college to pick Saira Bibi who was missing. She reported the matter to the complainant who started searching for her. During search, Jamshed Nasir P.W.4, Tanvir and Liaqat informed the complainant that they had seen Mst. Saira Bibi going along with Muhammad Asif and Amir respondents on a motorcycle at about 11 a.m. The complainant along with other witnesses contacted Muhammad Asif, respondent and others for return of her daughter, who initially promised to return Mst. Saira Bibi. After waiting for three days, the complainant reported the matter to the police. Muhammad Asif and Amir Masih respondents, who were named in the F.I.R. Along with Tanvir Masih, faced trial.
During trial, prosecution produced 11 witnesses in support of its case. P.W.2 Khalid Javed narrated the story given in the F.I.R. Mst. Saira Bibi appeared as P.W.3 and stated about her abduction and commission of rape by the respondents. Jamshed Nasir P.W.4 who is nephew of the complainant stated that he along with Liaqat Ali and Tanvir Ahmad who were not produced had seen Mst. Saira Bibi in the company of Muhammad Asif and Amir Masih at about 11 a.m. On 10-1-2002, while they were going on a motorcycle. Dr. Nasreen Akhtar appeared as P.W.9 and stated that she had examined Saira Bibi on 21-1-2002 at 8-30 p.m. And had conducted her medical examination. She observed freshly healed tear in posterior wall of hymen. She opined that Mst. Saira Bibi was subjected to intercourse. Zafar Ullah P.W.11 stated about the investigation of the case, arrest of the accused and recoveries. The statements of the respondents were recorded under section 342, Cr.P.C. And all of them claimed to be innocent and stated that they were roped in a false case.
' Tanvir Masih added that he was son of a preacher and had a good reputation. Muhammad Asif, after denying commission of any offence, added that Mst. Saira Bibi, who was an adult having love affair with Amir Masih, left her house with her free will after her parents taunted her about the affair.
Similarly Amir Masih, stated that Saira Bibi used to write love letters to him and also used to send telephonic messages to him and that she was forcing him to change his religion and marry her. On his refusal, he was roped in a false case and that after knowing the affair of Saira Bibi, she was beaten by her parents, thereafter she left her house on her own and went to the house of her co- villager Majeed Qureshi P.W.3 and that subsequently she levelled false allegation against him.
3. The respondents did not appear as witnesses in their defence under section 340(2), Cr.P.C.
However Amir Masih produced Mst. Asia D.W.1, Abdul Rashid D.W.2 and Majeed D.W.3 in his defence.
According to Mst. Asia Bibi on 10th she and her husband Rashid Ahmad found Saira Bibi lying on the middle of the road, who told them that no body belonged to her and she be saved, so they brought Saira Bibi to their house where she remained for 2 days and thereafter she went to the house of her cousin sister who lived at Jandiala Baghwala. D. W.1 however stated that Saira Bibi informed her that she had left her house due to quarrel with her step-mother. Abdul Rashid D.W.2 narrated a similar story and added that on 3rd day Saira Bibi informed them about her father's name and his telephone number, thereafter the relatives of Saira Bibi were contacted and Saira Bibi was dropped at the house of her Khala Zad sister at Jandiala Baghwala. Abdul Majeed stated that Rasheed met them on 13th and on, the same day he made telephone call to the house of the relatives of Saira Bibi, thereafter she was dropped at the house of her Phoopi at Jandiala Baghwala.
5. The learned counsel for the petitioner has argued that the statement of Saira Bibi was trustworthy, convincing and was enough for recording conviction of the respondents, and that medical evidence fully supported and corroborated the statement of the victim. The learned counsel further argued that the learned appellate Court was influenced by the love letters allegedly written by Saira Bibi to Amir Masih despite the fact that the letters were not exhibited and hence could not be read in evidence. According to the learned counsel the statement of Saira Bibi supported by medical evidence was enough to record conviction. The learned counsel lastly argued that the learned appellate Court did not properly appreciate the prosecution evidence and that the judgment passed by the learned trial Court should be restored.
5. Conversely, the learned Deputy Prosecutor General has supported the judgment of the appellate Court and pointed out the infirmities in the statement of the victim. According to learned counsel, the prosecution case was replete with tubes and the respondents were rightly acquitted.
6. The learned counsel for the respondents adopted the line of arguments of learned D.P.-G. And added that according to findings of both the learned Courts below, the story of abduction of Saira Bibi was found to be false and hence her statement vis-a-vis rape could not be used against the respondents without strong and independent corroboratory evidence which was lacking in this case.
7. We have heard the learned counsel for the parties at length and have examined the circumstances of the case and the evidence led in detail and have endeavored to form our own opinion as to the facts relevant to the acceptance of that evidence in pursuit of justice.
8. The whole prosecution case revolves around the statement of Saira Bibi P.W.3. In her statement before trial Court she stated that on the fateful day she went to attend the college and was accompanied by her mother, after crossing the road she reached the gate of the college, she came across Amir Masih and Muhammad Asif respondents who invited her to sit on their motorcycle but she refused. She further stated that she made it clear to the accused that she would raise hue and cry if she was forced to sit with them and that Muhammad Asif who was holding a pistol threatened her with dire consequences and hence she sat on the motorcycle. She did not deny that her mother was not accompanying her. It is mentioned in F.I.R. That as per routine, wife of the complainant used to drop Saira Bibi at college and then collect her after the college hours. It is also mentioned in the F.I.R. That on the fateful day, her stepmother, at about 9 aim. Dropped her inside the college. Mst. Shaheen Akhtar mother of the victim, was not produced during trial. However it was she, who reported the matter to her husband, father of the victim. It is not mentioned in the F.I.R. That either Amir Masih or Muhammad Asif was present at the gate of the college. Even otherwise a mother would ensure that her daughter safely enters in the college to ensure her safety. In case respondents Amir Masih and Muhammad Asif would have been standing at the gate, then Mst. Shaheen Akhter must have noticed it and taken necessary steps ensuring the safety of Saira Bibi. According to Saira Bibi after her abduction she was taken to Lady Park, where she was threatened not to raise any alarm. During cross-examination she stated that she remained in the park for about 45 minutes and was confronted with her statement recorded by police wherein it was stated that she along with accused remained in the park for about 2-3 hours.
At the time of occurrence Amir Masih was aged 18 years, Tanvir was aged 20 years and Muhammad Asif was aged about 26 years. There is nothing on record that they were previously involved in criminal case. It was most unlikely that after forcibly abducting Saira Bibi the accused would go into the park and Waste time there. In her examination-in-chief she stated that after her abduction, while she and the accused were proceeding to Gujranwala they met with an accident, she got injured, was taken to Kamoke hospital and was not produced before any doctor. Thereafter the accused took her at Gujranwala bus stop and after parking the motorcycle at some unknown place Muhammad Asif and Amir Masih forced her to board a bus thereafter she was taken to Mayo Hospital, Lahore. She was kept in the quarter which belonged to the friend of the accused and Amir Masih and Muhammad Asif committed rape with her. After two days she was brought back to Gujranwala and Amir Masih took her to his friend Tanvir Masih where Tanvir Masih raped her and expelled her out of the house, thereafter she reached Khiali Bypass in a motor rickshaw where she met a man and woman who after listening her story took her to their house and thereafter she was brought to her cousin sister at Jandiala Baghwala. During cross-examination she made many dishonest improvements in her statement and was duly confronted with her earlier statement recorded under section 161, Cr.P.C. She could not give any plausible explanation as to why she did not protest and raise alarm at places such-like hospitals, parks and bus stop and in the bus. It is also noted that she admitted that she was taken to Tanvir Masih in the house where his family members were also residing. It is not plausible that the boy of 20 years would commit rape with an adult girl without her consent in the house where other family members were present. It is not available on record that Tanvir Masih was armed with any weapon. So Saira Bibi could easily defend herself. She admitted that she remained in the house of Mst. Asia and Rashid D.W.2 and 3 for two days and according to her she narrated the whole story to them on the very first day. She also admitted that she remained in the house of her cousin sister Mst. Shama for 15-20 days prior to her recovery by the police. In the same breath she changed her statement by stating that she remained in the house of her cousin for four days prior to her recovery. The fact remained that till 20th the police was not informed by the complainant about the presence of Saira Bibi in the house of her cousin at Jandiala Baghwala. It is admitted that D.W.1 and D.W.2 contacted the relatives of Saira Bibi and she spent her time in the house of her cousin till her recovery. The question as to why the appellant and relatives of Saira Bibi kept quite for such a long time. This leads to the conclusion that the parents were angry with Saira over her leaving house and were not prepared to take her back.
9. Admittedly Saira Bibi was recovered on 20-1-2002 from the house of her cousin situated at Jandiala Baghwala. There is no explanation as to why she was not got examined by doctor on the same day. According to her she spent the night in the house of her Mamo Arshad and then went to the police station on the next morning i,e, 21-1-2002 and remained there till 10 a.m. It may be noted here that according to P. W.9 and P. W.11 medical examination was conducted at T.H.Q. Hospital Kamoke while according to Saira Bibi she was taken to Gujranwala for her medical examination on 21-1-2002 but her medical examination was not conducted and she again went to the house of her Mamo and spent the night there and went to the police station early in the morning on 22-1-2002.
This is major contradiction and could not be easily ignored. It is also noteworthy that according to doctor the age of the tear on the hymen was about one week, that would come to 14-1-2002 and would not support the prosecution case vis-a-vis the dates of commission of rape. Saira Bibi in her examination in chief stated that firstly she was taken to Wazirabad hospital and then to Kamoke hospital while during cross-examination she did not mention Wazirabad at all and rather denied that her medical examination was conducted. Cross-examination is continuing part of the whole statement, rather more important than the examination in chief. The statement of Saira Bibi is inconsistent, and replete with contradictions. In the first half she has been disbelieved by both the learned Courts qua her allegation of abduction and no appeal was filed against the acquittal of the respondents from the charge of abduction. The statement of Saira Bibi stands disbelieved qua abduction that has caused a serious dent in veracity of her statement. The second half of her story, relates to her rape can only be believed in the presence of strong corroborating evidence. As far as medical evidence is concerned, it reveals about sexual intercourse and does not lead to the person who did it especially in the absence of any D.N.A. Test or any grouping test of semen.
10. The learned appellate Court has rightly rejected the statement of Jamshed Nasir P.W.4 who was nephew of the complainant, as rest of the P. Ws. Who had seen Saira Bibi along with accused were not produced. According to him he had seen Saira Bibi and the accused at 11 a.m. Yet he did not inform the complainant till evening. In case he had seen Saira Bibi along with the accused he would have reported the matter to the complainant immediately and would not wait till evening.
11. Admittedly Mst. Saira Bibi was recovered from the house of her cousin and not from the house of any of the accused. Similarly D.Ws.1 and 2 met Saira Bibi when she was alone and none of the accused was present there. Muhammad Asif and Amir Masih respondent/accused were arrested on 18-1-2002, they remained with the police but neither any pistol nor motorcycle was recovered from their possession or at their instance. On the contrary the motorcycle was produced before the police by one Ehsan Ullah on 25-1-2002 who is neither an accused nor a witness in the case.
12. The learned Appellate Court considered each and every aspect of the case in its true perspective and found that statement of Saira Bibi was not confidence inspiring. In the above noted circumstances, we cannot but agree with the findings of the learned Appellate Court. It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed. We would like to reproduce the relevant portion of the judgment of this Court in the case of Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 on the same, wherein it was observed as under:--- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:--- ' (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact tha the acquittal carries with it the two well-accepted presumption s: One initial, till found guilty, the accused is innocent: two that again after the trial a Court below confirmed e assumption of innocence.
' (1) PLD 1980 SC 317, (2) PLD 1981 SC 286, (3) 1981 SCM R 95, (4) 1981 SCM R 415, (5) 1981 SCM R 474, (6)
PLD 1951 FC 107, (7) PLD 1960 SC 286, (8) PLD 1964 SC 422, (9) PLD 1966 SC 4 , (10) PLD 1969 SC 293, (11)
PLD 1973 SC 469, (12) PLD 1975 SC 227, (13) PLD 1976 SC 234, (14),PLD 1977 SC 4, (15) PLD 1977 SC 529.
(2) The acquittal will not carry the second assumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below (a) disregarded material evidence (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principle of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous."
13. Similar views were expressed in a later judgment of this Court in the case of Muhammad Iqbal v.
Rana Sana Ullah PLD 1997 SC 569.
14. The upshot of the whole discussion is that the solitary statement of the Saira Bibi being inconsistent was not confidence inspiring and hence not worthy of credence. The statement of Saira Bibi was also not corroborated by any independent, reliable incriminatory evidence. The findings recorded by learned Appellate Court while acquitting the respondents were neither perverse nor arbitrary. Hence we are not inclined to interfere with the impugned judgment. These were the reasons behind our short order dated 24-3-2009 whereby the petition was dismissed and .