The above titled appeals have been directed against one and the same judgment therefore, these are being disposed of through this single judgment.
2. The brief facts forming the background of the instant appeals are that the complainant Mst.
Shabnam. Khanum stated that she is resident of Nakka Bazar. On 7.7.2007, at about 2, p.m. she was., present in the house of her paternal aunt, her mother and aunt went to Nakka Bazar whereas her younger brother and cousin Fahad were present with her. Meanwhile, one Mst. Zaheen came from neighbor and started talking with her. Her brother and cousin wanted to bring toffees from the shop, she stopped them from doing so because she was alone, but Mst. Zaheen asked that she is present, therefore, they may be allowed to go, hence they left for the shop. After 2/3 minutes of their departure Mst. Zaheen also left the complainant by saying that she has not told her mother, thus the complainant was alone and put herself on bed. After 3/4 minutes she heard a noise and saw that an unknown person entered into the room and stood near the bed. The person was a tall man having moustaches, golden hairs and blue eyes. He was armed with "Churri". He called one Talib to come in. He said to unknown person to put pillow on the mouth of the complainant, as she could not see anything. In the meantime two other accused-persons also entered into the room.
One of them caught her from both hands and the other tied her legs with "Rassi" along the bed.
Thereafter all the three persons turn by turn committed Zina with her. They also injured her chest with paper pins. Her bangles were also broken during resistance due to which she also sustained injuries and her clothes were also torn thus, she became weakened. One of the accused-person said that she has identified us therefore, she should be murdered while the other said that "Laltain" is lying nearby therefore, she should be burnt with oil. One of the accused-person said this will not be done, due to which they quarreled with each other. Thereafter one of them put oil and burnt bed sheet so that there remains no evidence. When the complainant, Mst. Shabnam Khanam removed the Pillow she saw that the person who came first and one Talib Hussain were going whereas the third one had already gone. The above mentioned girl, Mst. Zaheen had given telephone number to the complainant, she telephoned her. Mst. Zaheen along-with two other ladies came there and cold the fire and untied her. Maternal uncle of the complainant namely Shafique also came, her mother also came there and advised her to keep silent, because it is matter of honor and enmity.
In the meanwhile the names of accused-persons came into her knowledge as Talib Hussain, Muhammad Attique and Ghafoor.
3. On this report a case under Sections 10(4), ZHA and 452, APC was registered against the accused-appellants/ respondent. After registration of the case, the convict-appellant Talib Hussain and Attique were arrested by the Police. After usual investigation a challan in the aforesaid offences was submitted on 20.09.2007. While warrant of arrest under Section 512, Cr.P.0 was issued against the co-accused Ghafoor on the report of serving constable. After presentation of challan, the trial Court examined the convict-appellants/respondent under Section 242, Cr.P.C. During their statements they denied the allegations and opted for the trial of the case. In the meantime, Ghafoor was also arrested and was challaned on 2.07.2008. Thereafter, the accused-person Attique was released on bail while the other two accused-persons remained in custody.
4. The trial Court directed the prosecution to produce evidence in support of his, claim. The prosecution produced as many as sixteen (16) witnesses before the Court and their evidence was recorded. After recording the evidence of prosecution witnesses, the trial Court examined the appellants and respondent under Section 342, Cr.P.0 on 5.12.2009. They claimed to be innocent and submitted that false evidence has been produced against them. The appellants Talib Hussain and Abdul Ghafoor requested the Court for defence evidence. The trial Court recorded the same on 12.12.2009. After conclusion of the trial, the trial Court convicted and sentenced the accused- appellants to undergo 7 years R.I each in the offence under Section 452, APC alongwith fine of Rs.
5,000/- each and 10 years R.I and 30 stripes each under Section 10(3) of ZHA, in case of non- payment of fine they shall further undergo for six(6) months simple imprisonment each. The appellants assailed the aforesaid conviction and sentence through the above titled appeal whereas the complainant preferred an appeal for enhancement of sentence and prayed that respondent No. 3 may also be sentenced under law.
5. M/s. Sardar Safeer Akram and Sardar Muhammad Hanif Khan, the learned counsels for the convict-appellants argued that the trial Court committed grave illegality while recording the impugned judgment. The learned counsels further contended that the FIR was lodged after a considerable delay of 29 days of the occurrence without any reasonable explanation which casts serious doubt upon the prosecution case, but the trial Court failed to consider this important aspect of the case. The learned counsels further contended that during the cross-examination as well as statement under Section 161, Cr.P.C, the complainant admitted that she has lodged the FIR on the instigation of maternal uncle who came from U.K. The Teamed counsels further submitted that the description/identification given in the FIR about the Appellant No. 2 does not tally and this point was also raised before the trial Court, but the aforesaid important point was ignored by the trial Court for unknown reasons. The learned counsels submitted that in cross-examination she stated that her statement was recorded twice before the police, but according to Investigating Officer only one statement was recorded. According to the learned counsels the prosecution has miserably failed to prove the guilt of appellants beyond any shadow of doubt and the judgment of the trial Court is based on surmises and conjectures. The learned counsels maintained that there is lot of contradiction among the statements of prosecution witnesses. The learned counsel finally prayed that by accepting the appeal, the' conviction and sentence awarded by the trial Court to the appellants may be set aside. In support of their contentions the learned counsels cited the following case laws:--
1. PLD 1983 (Fed.Sh.C) 110;
2. 1985 SCM R 721
3. PLD 1985 (Fed.Sh.C) 120;
4. PLD 1991 SC 179;
5. 1992 SCR 2088;
6. PLD 1995 (Karachi) 202;
7. PLJ 1995 SC 01;
8. 1999 P.Cr.L.J 735;
9. 2001 PSC (Crl.) 568;
10. 2002 YLR 2908; 11.2002 YLR 3612;
12. 2002 M LD 1193; 13.2005 P.Cr.L.J 53; 14.2005 P.Cr.L.J 578; 15.PLJ 2005 Cr.C. (Lah.) 897 (DB).
6. On the other hand, Sardar Abdul Hamid Khan, the learned counsel for the complainant while controverting the arguments raised by the learned counsels for the accused-respondents submitted that the trial Court has rightly convicted and sentenced the respondents, which warrants no interference by this Court. The learned counsel further contented that the accused- respondents are involved in a heinous offence of Gang-rape therefore, they must be given capital punishment. The learned counsel submitted that the trial Court wrongly acquitted the Accused- Respondent No. 3 against the norms of law and justice. The learned counsel maintained that the prosecution has proved his case through cogent and convincing evidence to the extent of Respondent No. 3, but the trial Court without following the relevant law on the subject acquitted the respondent by misreading and non-reading the evidence. The learned counsel further submitted that all the respondents are nominated in the FIR and a specific role has been attributed to them and it is evident from the prosecution evidence that all the respondents are involved in Gang-rape.
Finally, the learned counsel prayed that by accepting the appeal, the conviction awarded by the trial Court to the Respondents No. 1 & 2 may be enhanced and the Respondent No. 3 may be sentenced under law.
7. Raja Gul Majeed Khan, the learned Advocate General, appearing on behalf of the State supported the arguments raised by the learned counsel for the complainant.
8. I have heard the learned counsel the parties and perused the relevant record with utmost care.
9. On the re-appraisal of the whole evidence, I, however, have come to a different conclusion end I found that the case against the appellants and respondent is not free from doubt. Mst. Shabnam Khanam, the victim, who has appeared as witness P.W.1, is the only person who has furnished the account of the occurrence. It is true that she has no enmity with the appellants and apparently no reason exists that she will falsely implicate them in the commission of the crime, but certain aspects of the conduct of this P.W. are such which have compelled me not to place explicit reliance on her. According to the FIR lodged by Shabnam Khanam P.W.1, the occurrence took place at about 2, p.m. on 7.07.2007 in the house of paternal aunt. After the occurrence, Mst. Zaheen alongwith two other ladies came there and cold the fire and untied her. Maternal uncle of the complainant namely Shafique also came, her mother also mine there and advised her to keep silent, because it is matter of honor and enmity. In the meanwhile the names of accused-persons came into her knowledge as Talib Hussain, Muhammad Attique and Ghafoor. On the other hand, during her statement before the trial Court, she deposed that when Mst. Zaheen untied her legs, she told her about the incident and she did not disclose the name of any accused-person and nor she recognized any one She further deposed that the matter was reported to the Police after 25/26 days of the occurrence. The complainant herself contradicts the version taken in the FIR which also casts a serious doubt upon the prosecution story. It is settled principle of law that if there is an element of doubt as to the guilt of the accused, the benefit of the same must be extended to him.
The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent be convicted." In simple words it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach for reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) The mistake of Qazi in releasing a criminal is better than his mistake in punishing innocent." In this view of the matter, I agree with the contention of the learned Counsel for the appellants that the prosecution has badly failed to prove his case against his clients beyond any shadow of doubt. It is settled principle of law that in criminal administration of justice conviction cannot be passed merely on presumptions or surmises and conjectures.
10.Mst. Hamida Begum (P.W.3) is not an eye-witness of the occurrence. She narrated the story which was told to her by the victim. During cross-examination, she deposed that she has rightly been stated in her statement Ex.DD before the police that the victim told her that some unknown accused-persons committed Gang-Rape with her. She further deposed that she suspected upon Talib accused who alongwith other accused-persons committed the instant occurrence. The aforesaid statement of the P.W. shows that she negated the statement recorded before the police under Section 161, Cr.P.C. which also casts a serious doubt upon the prosecution story.
11.Mst. Zaheen Akhtar (P.W.5) deposed that she was called by the complainant through telephone.
When she reached, the victim told her that some unknown persons committed Gang-Rape with her. In cross-examination, she deposed that the victim told her that she did not recognize the accused-persons who committed Gang-Rape with her. She also negated the portion of her statement A to A before the police. The aforesaid P.W did not support the prosecution version taken in the FIR. The aforesaid statement also casts a serious doubt upon the prosecution story.
12.The evidence of P.Ws.3, 5, 6, 7 & 8 seems to be hearsay evidence therefore, need not to be discussed.
13.The P.W.9, Lady-Doctor deposed that she examined the victim Mst. Shabnam Khanam on 6.8.2007. The Medical report Ex.P.G. was prepared by her and made the following observations: "Coitus has been done but no sign of recent coitus seen. High vaginal swabs report for sperms is negative. She is not virgin. On PIV examination Hymen is not intact. Two fingers passed without any discomfort. Old nail marks found on front of chest and old scratch marks found on both ankle joints."
In the case in hand, the occurrence took place on 7.7.2007 and the victim was produced before the lady Doctor for her examination on 6.8.2007, after the delay of one month without showing any reasonable justification for such a delay. The clothes worn by the victim at the time of alleged occurrence were not sent to the Chemical Examiner to ascertain whether those were stained with semen or not. From the above, can safely be inferred that the occurrence has not taken place in the manner narrated by her and the story that her clothes were torn during the occurrence was fabricated to strengthen the prosecution version, which were also produced before the Investigating Officer after registration of the case.
14.From the perusal of the statements of all the witnesses, it become abundantly clear that the prosecution failed to prove its case against the convict-appellants beyond any shadow of doubt and the judgment of the lower Court is based on surmises and conjectures therefore, the same is not tenable in the eye of law.
15.The learned Counsel for the convict-appellants zealously argued that there is delay of 25/26 days in lodging FIR is fatal for the prosecution case. I agree with the contention of the learned Counsel for the appellants that the FIR was lodged after the delay of 25/26 days of the occurrence which casts a serious doubt upon the prosecution story. The same like proposition arose before Hon'ble Supreme Court of Pakistan in a case titled Mst. Nargas V. Rustam Ali and others [2001 PSC (Cri.) 568] in which the learned Judges of the apex Court held as under: "On appeal High Court acquitted the accused. Unexplained delay in registration of case. Rape story extremely doubtful. Division Bench of the High Court acquitted the respondents mainly for the consideration that there was an unexplained delay of four days in the registration of the case.'
This view also fortified by another case titled Muhammad Yousaf Vrs. The State [P.L.D. 1991 Supreme Court 179].
In view of the above observations the possibility of fabrication of a story and false implication of the appellants cannot be ruled out which casts a cloud of doubt on the entire prosecution case and it is true that unexplained delay in lodging FIR is fatal for the prosecution case. It will, not be out of place to mention here, that all the witnesses were duly confronted with their previous statements recorded during the course of investigation and they made certain improvements, which are on material points therefore, no reliance can be placed upon them.
16. For the reasons listed above, I am of the view that the prosecution has miserably failed to bring home guilt the appellants namely, Talib Hussain and Abdul Ghafoor beyond any shadow of doubt, therefore, by accepting the appeal, the impugned Judgment dated 13.01.2010 is set aside and they are acquitted of the charge under Sections 10(4), ZHA and 452, A.P.C. by extending them the benefit of doubt. They shall be released forthwith if not required or involved in any other case or offence.
The cross appeal filed by the complainant, Shabnam Khanam stands dismissed being devoid of force and the Judgment to the extent of respondent Atique Hussain is allowed to stand.