This appeal has been directed against the judgment dated 26.11.2008 passed by the learned Sessions Judge, D.G. Khan whereby on conclusion of the trial in Case FIR No, 20/2007 registered at PS Sadar D.G. Khan Muhammad Kaleem and Saifullah appellants were convicted under Section 452 PPC and sentenced to seven years each with a fine of Rs, 10,000/- each or in default of payment thereof to further undergo SI for three months. The benefit u/S. 382-B Cr.P.C. was also extended to the appellants. However, they were acquitted of the charge under Section 376 PPC.
2. Briefly the allegation was that on 31.12.2006 at about 12.00 noon in the area of Allah Abad Colony, Mouza Gadai, D.G. Khan Kalim appellant armed with pistol and Saifullah appellant empty handed trespassed into the havaili of the complainant and committed rape with Hafizan Mal.
3. The appellants were charge sheeted u/S. 452 PPC and 376 PPC on 17.08.2007 to which they pleaded not guilty and the prosecution produced 8 PWs. Then the appellants were examined u/S. 342 PPC, who controverted the allegations leveled by the prosecution and professed their innocence. However, the appellants did not opt to produce evidence in defence or to appear as their own witness as provided u/S. 340(2) Cr.P.C. On conclusion of the trial the learned trial Court passed the impugned judgment of conviction and sentence, which has been assailed through the instant appeal.
4. The learned counsel for the appellants contends that the appellants are innocent, who had been falsely involved in the present case as Mst. Hafeezan complainant was sister of Mst. Haseena Mai wife of Muhammad Kaleem appellant whereas Ashro Mai sister of the said appellant was married to the real brother of the complainant, who was kicked out by he husband and wife of Muhammad Kaleem wanted to get divorce, therefore, he was falsely involved in this case whereas Saifullah being close relative of Muhammad Kaleem appellant was also dragged in this case; that the learned trial Court has committed material illegality while recording conviction against the appellants u/S. 452 PPC as the PWs were disbelieved for the major offence, who could not be relied upon for this offence.
5. On the other hand learned DPG has opposed this appeal and supported the impugned judgment of conviction and sentence on the ground that due to the close relationship between the parties, there were no chances of false implication of the appellants and the learned trial Court while discarding the defence plea on the valid reasons has rightly passed the impugned judgment of conviction and sentence, which may be maintained.
6. I have heard the learned counsel for the parties and perused the impugned judgment as well as the evidence while taking it from the brief of the learned counsel for the appellant. Briefly the facts are that Mst. Hafeezan complaint got lodged the complaint on 13.1.2007 while alleging that on 31.12.2006 the complainant was present in her house while her husband had gone to New Adda in connection with his job. In the meanwhile, Kaleem appellant armed with pistol and Saifullah appellant empty handed trespassed into her house. Firstly Kaleem appellant committed zina bil jabar with the complainant on pistol point while Saifullah appellant remained present there as a guard and afterwards he also committed zina-bil-jabar with the complainant, who raised hue and cry which attracted Khalid Hussain her husband and Fida Hussain brother of the complainant. Both the appellants succeeded in fleeing from the place of occurrence on seeing the PWs.
7. The prosecution examined Mst. Hafeezan as PW-1, Fida Hussain (PW-2) and Khalid (PW-3) to prove the version of the complainant. After perusal of their evidence it is found that PWs 2 and 3 did not depose that they had seen the appellants while committing zina with, the complainant. The learned trial Court has observed that the version introduced by the complainant for committing rape with her by the appellants was not supported by the medical evidence as there were no marks of violence and the vaginal swabs were not found stained with semen. Even etherwise the case was cancelled by the police after thorough investigation, but the report submitted before the learned llaqa Magistrate was disagreed by him. No doubt the police opinion is not binding on the Courts, but it being supported by the other facts and circumstances of the case can be a relevant fact to draw conclusion into the guilt or innocence of the accused. The learned trial Court has acquitted the appellants from the charge u/S. 376 PPC. I am of the view that when the PWs were disbelieved by the learned trial Court regarding the major offence, u/S. 376 PPC for committing rape with the complainant, they could not be believed for recording conviction against the appellants u/S. 452 PPC for trespassing into the house of the complainant with the object of committing rape with her. Even otherwise both the appellants were closely related to the complainant, who was sister-in-law of Muhammad Kaleem appellant while the latter's sister is married to Saifullah appellant and as such they could not be held liable for trespassing into the house of their close relative. The learned trial Court has erred in law while believing the PWs in piecemeal, who could be believed or disbelieved in toto. The rule of criminal jurisprudence to give the benefit of doubt to the accused is much more than a mere rule of law as said rule is rule of "prudence" which no man ought to and no Judge acting in accordance with the provisions of Qanun-e-Shahadat Order, 1984 can ignore and which was vigorously enforced by Islam. It is settled principle of criminal administration of justice that conviction must be based on unimpeachable evidence and certainly of guilt and any doubt arising out in the prosecution case is to be resolved in favour of the accused. Even if the defence plea was not proved or no evidence was adduced in this behalf, no benefit accrues to the prosecution on that account and its duty to prove the case beyond any shadow of doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. The case law reported in 1993 SCMR 417, 1993 SCMR 1628 and PLD 1999 Lahore 56 is referred.
8. For the foregoing discussion, I am of the view that the prosecution miserably failed to prove its case against the appellants beyond any shadow of doubt and the impugned conviction and sentence cannot be sustained in the eyes of law. Hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and both the appellants are acquitted of the charge by extending them the benefit of doubt, who shall be released from the jail forthwith, if are not required in any other case.