This Petition for Special Leave to Appeal filed under Section 417(2), Cr.P.C., is directed against the judgment dated 05.07.2011 passed by the learned Additional Sessions Judge, Liaquatpur, District Rahim Yar Khan, whereby Respondents No, 1 to 6 were acquitted in a private complaint filed by the present petitioner under Sections 452/376/337- F(i), P.P.C., falling within the jurisdiction of Police Station Tranda Muhammad Pannah.
2. Precisely the prosecution story, as steamed-out from the private complaint, filed by the petitioner before the Court of learned Additional Sessions Judge, Liaquatpur, is that on 04.07.2010 at 12:00 a.m., the present Respondents No, 1 to 6 alleged to have forced their entry into the complainant's house along with three unknown persons; tied the complainant while her husband was prevailed upon by the accused persons; meanwhile, Bashir Ahmad and Mushtaq Ahmad committed zina-bil-jabr with the complainant; the other co-accused burnt the body of the complainant with cigarettes; on alarm raised by the complainant and her husband, Ghulam Farid (complainant's Dewar) came there, who witnessed the occurrence, whereupon the accused persons made their escape good; early in the morning, the complainant along with others went to the dera of a landlord namely Syed Iftikhar Hussain alias Baggay Shah and told him the entire story. Thereafter the complainant made an application against the accused persons on 05.07.2010 but in vain.
3. Prior to filing of private complaint, the petitioner lodged FIR No 293/10, under Section 376, P.P.C. but the same was got cancelled by the local police, which constrained the present petitioner to file a private complaint.
4. After recording cursory evidence, the private complaint was admitted to regular hearing and the Accused-Respondents No, 1 to 6 were summoned; charge was framed on 15.03.2011 to which they pleaded their innocence and claimed trial.
5. The complainant, in order to prove her case, produced Lady Doctor Samina Kausar as PW-1, Khalil Ahmed, her husband, as PW-3 while she herself appeared as PW-2. The complainant, in support of her case, also produced documentary evidence consisting of her MLC (Exh.PA), FIR No, 293/10 (Exh.PB) and a private complaint (Exh.PC): Ghulam Farid, PW, being unnecessary was given- up. The learned trial Court also recorded the statement of Muhammad Iqbal, ASI/IO as CW1. In their statements, got recorded under Section 342, Cr.P.C, the accused-Respondents No, 1 to 6 had controverted the allegations leveled against them and professed. their innocence. After appraisal of the evidence and on conclusion of the trial, the learned Additional Sessions Judge, Liaquatpur, vide its judgment dated 05.07.2011, pronounced acquittal of the accused-respondents from all the charges with the observations that the complainant and the prosecution miserably failed to prove its case against all the accused persons beyond reasonable shadow of doubt. Hence, his petition.
6. Learned counsel for the petitioner submits that the that the respondents-accused have been acquitted by the learned trial Court on whimsical grounds and the evidence led by the complainant, during trial; has not been properly appreciated/appraised by the trial Court. Further contends that the prosecution had fully established the guilt of the respondents-accused beyond reasonable shadow of doubt but the learned trial Court appears to have been influenced by the plea of innocence of the accused in their statements under Section 342, Cr.P.C. It is lastly contended that the impugned judgment suffers from non-reading and misreading of evidence, which resulted in grave miscarriage of justice. In support of her submissions, the learned counsel has relied upon Abdul Razzaq alias Bhola us. The State (2007 P.Cr.LJ. 1788) and Mubarik Ali us. The State (2003 Crl.LJ. 153).
7. After having heard the learned counsel for the petitioner and gone through the judgment passed by the learned Additional Sessions Judge, I find that the complainant attributed the motive part to Laal Muhammad, the accused/Respondent No, 1 stating in Para No, 1 of the private complaint that he is her husband's cousin; he is a man of bad character; he used to fetch the women to his house and her husband many times asked him to desist from these acts but all went in smoke. The said accused Laal Muhammad, while keeping revenge, criminally tress-passed into the house of the complainant along with his co-accused, eight in number. No independent evidence qua participation of said Laal Muhammad in the occurrence being the main accused or his bad A character has been brought on record to establish the motive. It is also amazing that the aforesaid nine accused including Respondents No, 1 to 6 came to complainant's house to commit such a heinous offence empty handed and no one from the vicinity attracted during the entire occurrence, whereas if seen from another angle, Ghulam Farid, brother of complainant's husband, came at the spot on hearing alarm raised by the complainant and her husband; meaning thereby, commission of offence in the manner it is stated in the complaint, is, incredulous. The best evidence in the shape of independent witness of the occurrence namely Ghulam Farid, has been withheld being not necessary.
8. The petitioner as well as her husband while appearing as PW-1 & PW-2 made dishonest improvements during the course of evidence inasmuch as it is alleged in para 1 of the private complaint by the complainant-petitioner that the accused persons tied up the complainant and then overpowered her husband , thereafter Bashir Ahmad and the Mushtaq Ahmad commited zina-bil-jabr with the complainant on the other hand the complainant, in her evidence, made the following improvement: They tied my husband. Bashir and Mushtaq accused committed zina-bil-jabr with me while Abdul Hameed had been burning my body with cigarettes and also caused scratches with pen."
Besides, no recovery of piece of cigarettes or pen has been made by the police.' PW-3, Khalil Ahmed, husband of the complainant, in his statement, stated as under: All the accused entered into my house forcibly and tied me up. Bashir Ahmed and Mushtaq Ahmed committed zina-bil-jabr with my wife. Abdul Hameed cut her hair and burnt her body with cigarettes."
9. Muhammad Iqbal ASI/I.O., appeared as a Court witness, as CW-1 and stated that: "During the investigation of the above said case, I found that the occurrence was falsely reported before the police and inspite of my repeated requests, Mst. Azra Bibi had never appeared before me for taken her to lady doctor for her DNA test. Due to her non-cooperation, DNA test was not conducted."
The petitioner got herself medically examined by the order of the learned Magistrate concerned on 10.07.2010 i,e, after six days of the occurrence. Prosecution has also not produced the report of Chemical Examiner. Such delay in medical examination coupled with the fact that the petitioner is a married woman and there is no evidence or material available on the record to demonstrate that she being a married woman did not share the bed with her husband after the occurrence, is sufficient to cast serious doubt in the prosecution story, that too in absence of the report of the Chemical Examiner and DNA test. The petitioner, being the main sufferer, without loss of a moment, could establish the charge against the accused-respondents by availing the opportunity of DNA test, which obviously could decrease the chances of acquittal of the accused-respondents. All the more, the report of the Chemical Examiner qua ingredients of the sample sent for chemical test is also not on record, which, under Section 510, Cr.P.C. could be used as evidence in the trial by the prosecution without calling the author of such report as a witness, to prove its case beyond any shadow of doubt.
10.I have also noticed that the occurrence is alleged to have taken place on 04.07.2010 and the matter was reported to the police on 16.07.2010. Nothing is available on record to justify the delay of 12 days in lodging of the FIR. Moreover, the petitioner took no step either for change of investigation or challenging the order passed by the learned Magistrate qua cancellation of the FIR. As stated earlier, the petitioner instituted the private complaint on 20.06.2011 i,e, after 11 months and 04 days of the registration of case.
11.PW-2 as well as PW-3 are consistent in their stance that after the occurrence took place, they instead of approaching the SHO went to the dera of Baggay Shah, a landlord of the area, where it was decided that the matter should be reported to the police. On the other hand, the accused persons while recording their statements under Section 342, Cr.P.C. unanimously stated that, the complainant party is playing in the hands of one Baggay Shah who is political rival of Bashir Ahmed, one of the accused. It would be .advantageous to note here that the parties prior to the present lis, are engaged in serious criminal litigation.
12.I have drawn the attention of the learned counsel for the petitioner to the findings given in Paragraphs 15, 16 & 17 of the impugned judgment to but the learned counsel failed to pin-point any illegality & irregularity or the material evidence which escaped from the notice of the learned Additional Sessions Judge. The accused-Respondents No, 1 to 6 suffered the rigors of prolonged proceedings spreading over one year.
13. I find that the judgment of the learned Additional Sessions Judge is in line with the evidence and the law on the subject. The case law cited by the learned counsel for the petitioner is not applicable to the facts & circumstances of the present case on distinguishable facts. I am not inclined to interfere in the verdict of acquittal. Every person, initially, is presumed to be innocent unless proved guilty and when he is found otherwise and is acquitted of the charge, then he is presumed innocent two times. Resultantly, having no force, this petition stands dismissed-in- limine.