' SHEIKH AHMAD FAROOQ, J.---Through this single judgment, we intend to decide Criminal Revision No,84-L of 2006, filed by petitioner/Allah Rakha for enhancement of sentence of accused/respondent No,2 Qaisar Abbas and Criminal Appeal No,194-L of 2006 filed by appellant/Allah Rakha against the acquittal of respondents/Mukhtar Ahmad, Muhammad Altaf, Muhammad Amin from the charges of abduction and zina-bil-jabr and against the acquittal of respondent/Qaisar Abbas qua the charge of abduction under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as these have arisen out of the same judgment dated 12-4-2006 passed by learned Additional Sessions Judge, Vehari.
2. Four accused persons, namely Qaisar Abbas, Mulchtar Ahmad, Muhammad Altaf and Muhammad Amin, were tried by the learned Additional Session Judge, Vehari, in a criminal case arising out of F.I.R. No,287, dated 11-6-2005, registered in Police Station Luddan, District Vehari under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. At the conclusion of the trial, the learned trial Court vide judgment dated 12-4-2006, while acquitting three accused namely Mukhtar Ahmad, Muhammad Altaf and Muhammad Ameen has held the fourth accused namely Qaisar Abbas to be guilty of commission of "zina with Mst.Zahida Bibi and has convicted him under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to three years' R.I. With a fine of Rs,5,000 or in default thereof to further undergo two months' S.I. With benefit of section 382-B,: Cr.P.C. However, the said Qaisar Abbas was acquitted from the charge of abduction of Mst. Zahida Bibi.
3. Succinctly, the allegations levelled by the complainant/Allah Rakha in the F.I.R (Exh.PA/1) dated 11- 6-2005 are that on 5-6-2005 Qaisar Abbas along with his co-accused abducted his sister namely Mst. Zahida Bibi for commission of "zina" while the complainant along with his mother was away from his house to condole the death of one of his relatives. On the next day, when the complainant came back to his house he found Mst. Zahida Bibi missing and during her search, Nusrat Ali and Ghulam Qadir apprised him that they had seen Qaisar Abbas and other accused taking away his sister on two motorcycles. The complainant stated that he tried to retrieve his sister from the illegal detention of the accused through punchaye but the accused refused to do so. The complainant alleged that the accused Qaisar Abbas along with his co-accused in furtherance of their common intention had abducted his sister with intent to commit `zina' with her.
4. After completion of usual investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences.
5. The learned trial Court framed the charges against the accused/present respondents under sections 11 and 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The convicted accused/Qaisar Abbas as well as acquitted accused namely Mukhtar Ahmad, Muhammad Altaf, Muhammad Amin did not plead guilty and claimed to be tried.
6. The prosecution in order to prove its case produced eight witnesses during the trial, including Lady Dr. Naheed Malik as P.W.3, Allah Rakha/complainant (P.W.2) and Mst. Zahida Bibi (P.W.6)/victim of the occurrence. The gist of the statements of the witnesses of the prosecution have been mentioned in the impugned judgment dated 12-4-2006 and there is no need to reproduce the same while deciding the instant revision as well as criminal appeal against acquittal. However, the relevant portions of the statements of the witnesses of the prosecution would be discussed and evaluated in this judgment.
7. After the closure of the evidence of the prosecution, the accused/Qaisar Abbas as well as the other accused namely Mukhtar Ahmad, Muhammad Altaf and Muhammad Ameen were examined under section 342, Cr.P.C., wherein they refuted all the allegations/charges and claimed to be innocent. The convicted accused/Qaisar Abbas in response to a crucial question "as to why this case against you and why the P.Ws. Have deposed against you?, responded as follows:-- "The P.Ws. Are interested inter se and inimical towards me. In fact, no occurrence had taken place. I have been falsely roped in due to previous litigation regarding landed property. I am innbcent".
' However, all the accused neither opted to make their statements on oath nor produced evidence in disproof of the charges or allegations made against them as envisaged under section 340(2), Cr.P.C.
8. Upon conclusion of the trial, the learned trial Court vide judgment dated 12-4-2006 has convicted the accused/Qaisar Abbas and acquitted the remaining accused/respondents as mentioned herein before in para-2 of this judgment.
9. Learned counsel for the petitioner in Criminal Revision No,84-L of 2006 as well as for the appellant Criminal Appeal No,194-L of 2006 has submitted that the impugned judgment is against the facts, material on record and law and as such, not tenable. He further submitted that the prosecution version was fully proved from the testimony of the ocular witnesses as well as the medical evidence. He claimed that the acquittal order is based on surmises and conjectures, hence, liable to be set aside. He further contended that the learned trial Court has not considered the legal proposition that in a case of Gang Rape, the sole statement of victim supported by Medico-legal Certificate and report of the Chemical Examiner is sufficient to convict the accused.
The learned counsel also submitted that the learned trial Court has wrongly discarded the value of the statement of the victim while acquitting the respondents. He maintained that the Investigating Officer did not investigate the case fairly. Learned counsel for the petitioner pointed out that according to the Chemical Examiner's report, the swabs were found to be stained with semen. He asserted that the respondent/Qaisar was wrongly convicted under section 10(2) instead of section 10(3) of the Ordinance ibid, which provides life imprisonment, whereas the charge of commission of zinabil-jabr against the respondent/Qaisar was proved beyond all shadows of doubt. He further maintained that defence has failed to bring on record any proof of enmity and false involvement of the accused by the prosecutrix and in this scenario, the sentence of three years awarded to the respondent/Qaisar is illegal and against the record. Lastly, he prayed that both the criminal revision as well as criminal appeal may be allowed and respondents/accused be convicted in accordance with law and the sentence of the respondent/Qaisar may be enhanced to the full quantum of sentence provided under section 10(3) of Offence of Zina(Enforcement of Hudood)
Ordinance, 1979.
10. We have heard Ch. Muhammad Ameen Javed, Advocate/ learned counsel for the petitioner as well as the appellant namely Allah Rakha. We have also carefully scanned the evidence available on the record in addition to examining the impugned judgment dated 12-4-2006.
11. At the outset, we would like to point out that three accused namely Mukhtar Ahmad, Muhammad Altaf and Muhammad Ameen were acquitted of the charges by the learned trial Court vide impugned judgment dated 12-4-2006. Similarly, Qaisar Abbas accused was also acquitted of the charge falling under section 11 of the Ordinance ibid by the learned trial Court through the said judgment dated 12-4-2006. It is a well-established principle of law that criteria for interference in an appeal against acquittal is entirely different and distinguishable from that of an appeal against conviction because double presumption of innocence of the accused is attached to the order of acquittal, therefore, the appellate court has to determine only whether the learned trial Court had discarded, ignored or misread any evidence for the reasons not recognized by the law resulting into mis-carriage of justice. It is also worth-consideration that the standard of assessing of evidence in an appeal against acquittal is quite different from those lard down for an appeal against conviction. In an appeal against conviction, the appraisal of evidence is done strictly, whereas in an appeal against acquittal, such rigid method of appraisement is not to be applied.
12. In this case, we have minutely examined the evidence produced by the prosecution against the acquitted accused and could not find any misreading or non-reading of the evidence available on the record. The learned trial Court has considered the material evidence produced by the prosecution against the acquitted accused and has arrived at a logical conclusion. It is pertinent to mention here, that three acquitted accused namely Mukhtar Ahmad, Muhammad Altaf and Muhammad Ameen were found innocent during the investigation, which was conducted by Muhammad Saleem/P.W.7 and verified by Falak Sher, Inspector/SHO and Zafar Iqbal, S.D.P.O. The Investigating Officer/P.W.7 explained in his cross-examination that there was a dispute of land between the complainant party and the accused and as such, the complainant has falsely implicated the innocent accused. No doubt, ipse dixit of the police is not binding on the courts, but the same could be considered along with the other evidence of the prosecution. Furthermore, the victim of the occurrence/Mst. Zahida Bibi also filed a private complaint/Exh.PF wherein she mentioned about the possibility of declaring the accused as innocent by the Investigating Officer but subsequently she withdrew the said private complaint/Exh.PF as evident from the order dated 2-1-2006 passed by the Additional Sessions Judge Vehari. In the instant case, there are material discrepancies in the statements of the prosecution witnesses qua the acquitted accused and benefit of doubt was rightly given to them by the learned trial Court. In these circumstances, we are of the considered opinion that there was no confidence-inspiring incriminating evidence available ' on record for recording the conviction of the acquitted accused as well as for convicting Qaisar Abbas for commission of an offence falling within the mischief of section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The impugned judgment dated 12-4-2006 is neither perverse, or arbitrary or capricious nor against record or result of any misreading or non-reading of the evidence. Hence, no interference is warranted. In this respect we would like to refer to the case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCM R 985 wherein it has been held that a finding of acquittal recorded by the trial Court cannot be reversed or upset except when the judgment is found to be perverse, shocking and suffering from error of jurisdiction or misreading or non-reading of evidence. The Hon'ble/Supreme Court of Pakistan has also held in a judgment reported in 2004 SCM R 923/926 that possibility of another view to be formed on the basis of evidence did not constitute a valid ground to interfere with the acquittal of accused which was based on sound footing.
13. Now, we advert to the revision filed by the complainant/Allah Rakha for enhancement of sentence awarded to accused/Qaisar Abbas. In this connection, it would not be out of place to mention here that Qaisar Abbas, who was convicted under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' R.I. With a fine of Rs,5,000 or in default thereof to further undergo S.I. For two months, did not file any appeal against the impugned judgment dated 12-4-2006. The convicted accused/Qaisar Abbas has also been released from jail after undergoing the entire sentence of his imprisonment prior to the admission of this revision petition for enhancement of sentence for regular hearing. Ordinarily, Federal Shariat Court does not exercise its revisional powers under Article 203-DD of the Constitution of Islamic Republic of Pakistan for enhancement of sentence of an accused, who has already undergone his whole sentence of imprisonment as it is against the principle of propriety as well as violative of dictum laid down by Supreme Court of Pakistan in judgments reported in 2006 SCM R 1091 and 2009 SCM R 502. Even otherwise, the learned trial Court has discussed and evaluated the evidence produced by the prosecution and rightly came to the conclusion that respondent/Qaisar Abbas has committed "zina-bil-raza" with Mst. Zahida Bibi and convicted him under section 10(2) of the Ordinance ibid and a sentence of three years' R.I along with fine was awarded to him. The contention of the learned counsel for the petitioner that there was no justification for awarding a lesser sentence to Qaisar Abbas when the commission of `zina' was found proved, is devoid of any legal force. In this regard, it would be advantageous to refer to the medical report of Mst. Zahida Bibi, wherein Lady Dr. Naheed Malik/P.W.3 opined that she is habitual to intercourse and there were no marks of violence or injury on any part of the body of Mst. Zahida Bibi. Furthermore, according to the victim of the occurrence namely Mst. Zahida Bibi/P.W.6, she was subjected to `zinc' by two persons namely Qaisar Abbas and Mukhtar Ahmad, during the period of her abduction and illegal detention spreading over eight to ten days. It is pertinent to mention here that the said Mukhtar was not only declared innocent during the investigation but has also been acquitted by the learned trial Court vide impugned judgment dated 12-4-2006. Additionally, there is not only an unexplained delay of six days in lodging the F.I.R. But also the victim was medically examined on 16- 6-2005 i.e, 11 days after the occurrence. Even, the swabs taken from the vagina of Mst. Zahida Bibi by the lady Doctor Naheed Malik/P.W.3 on 16-6-2005 were deposited/received in the office of Chemical Examiner on 14-7-2005 i.e, after an inordinate and unexplained delay of 28 days.
Moreover, no grouping of semen found on the vaginal swabs or DNA test of the said two accused was got conducted by the Investigating Officer. The solitary statement of the victim is not only inconsistent but also do not inspire any confidence and not fully supported by the medical evidence qua the allegation of commission of zina-bil-jabr with her by accused Qaisar Abbas. In this regard, we would like to refer to the case of Saira Bibi v. Muhammad Asif and others reported in 2009 SCM R 946 wherein it has been held that rape can only be believed in presence of strong corroborating evidence.
14. Needless to mention here, that there is no eye-witness of the commission of `zina-bil-jabe by Qaisar Abbas with Mst. Zahida Bibi. Nevertheless, the learned trial Court relying upon the solitary statement of Mst. Zahida Bibi coupled with the medical evidence and report of the Chemical Examiner has held Qaisar Abbas guilty of commission of `zina-bil-raza' with Mst. Zahida Bibi. The learned trial Court after examining the evidence carefully has arrived at the conclusion that Mst.
Zahida Bibi was a consenting party to the said act of `zina' and as such, awarded a sentence of three years along with a fine of Rs,5,000 or in default thereof to further undergo S.I for two months to Qaisar Abbas under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In this regard, we hold that the benefit of doubt was rightly given to Qaisar Abbas/accused by the learned trial Court in respect of commission of `zina-bil-jabr with Mst. Zahida Bibi. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
15. In view of above, it is held that there was no reliable evidence regarding the commission of `zina-bil-jabe by Qaisar Abbas with Mst. Zahida Bibi and as such, the learned trial Court was fully justified in not convicting Qaisar Abbas for commission of an offence falling under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Lastly, the punishment of an offence falling under section 10(2) of the Ordinance ibid is for a term which may extend to ten years along with fine and as such, the learned trial Court was not bound to record reasons for awarding a sentence of three years of Qaiser Abbas under the aforementioned provision of law.
16. The upshot of the above discussion and observations is that the Criminal Revision No,84-L of 2006 and Criminal Appeal No,194-L of 2006 are devoid of any merit and the same are accordingly dismissed in limine.
' These are the reasons for our short order dated 11-3-2013.
Revision and .