' SH. AHMAD FAROOQ, J.---Through the instant criminal appeal, the appellant/Mst. Zohra Bibi has challenged the judgment dated 16-6-2011, whereby the learned Additional Sessions Judge, Gujrat has acquitted respondents Nos.2 and 3/Muhammad Sharif and Zafar Shah of the charges under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section.
109, P.P.C. By extending them benefit of doubt.
2. The prosecution story as narrated in the F.I.R. Which was lodged by Mst. Zohra Bibi is that on 22- 8-2005, her daughter namely Saiqa Rashid was taken from her house by Mst. Zubaida Bibi and Mst.
Sumaira Bibi in her absence on the pretext of visiting the shrine of Baba Hanju Sarkar for lighting agarbatties. The youngest daughter of the complainant namely Mst. Asia Rashid also informed the complainant that the said accused/Mst. Zubaida and Sumaira along with two unknown male accused boarded Mst. Saiqa Rashid in a white coloured car and went towards Zaman Hotel. The complainant alleged that the accused have abducted her daughter on the abetment of Zafar Ali Shah, Zulfiqar Ali Shah, Ahmad Ali Shah and Javed alias Mitho Butt with an intention to kill her. The motive for the occurrence is stated to be the registration of a case earlier by the complainant against the accused regarding the murder of her other daughter namely Mst. Asifa Rashid.
3. 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.
4. The learned trial Court framed the charge against the accused on 19-3-2011 under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 109, P.P.C.
The accused did not plead guilty and claimed to be tried.
5. The prosecution in order to substantiate the charges against the accused produced nine witnesses. However, the learned Prosecutor gave up Malik Liaqat Ali, DSP and. Mukhtar Ahmed, S.I and closed the prosecution evidence after tendering the reports of Serologist/Exh.PK and Chemical Examiner/Exh.PL. The learned trial Court also examined Mst. Asia Rashid as C.W.1. There is no need to reproduce the gist of the statements of the witnesses of the prosecution in this judgment as the same has been done by the learned trial Court in the impugned judgment dated 16-6-2011.
However, the relevant portions of the statements of the witnesses of the prosecution would be discussed and examined in the subsequent paragraphs of this judgment.
6. After the completion of the evidence of the prosecution, the learned trial Court examined the acquitted-accused/Muhammad Sharif and Zafar Ali Shah as envisaged under section 342, Cr.P.C.
Wherein they categorically denied the occurrence and claimed innocence. In response to a crucial question during the course of their examination, the accused/present respondents Nos.2 and 3 replied as follows:-- "We are innocent and were also declared innocent in all the successive investigation of police department including RIB, Gujranwala which remained unchallenged and even case was also recommended to be cancelled. Complainant and her other family members are having bad repute and are habitual blackmailer and there are many criminal cases registered against complainant, P.Ws. And her other family members i.e, F.I.R. No,62/93 under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979, P.S Civil Line, Gujrat Exh.DA, F.I.Rs, Nos.383/92, 250/2001, 251/2001, 734/86, 450/89, 435/89 under Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979 at P.S. Sadar Gujrat Exh.DB, Exh.DC, Exh.DD, Exh.DE, Exh.DF and Exh.DG respectively. F.I.R. Nos.249/01, 191/96, 192/96, 269/89, 263/89, 735/86 under section 13-20 Arms Ordinance police station Sadar Gujrat i.e, Exh. DH, Exh.DJ, Exh.DK, Exh.DL, Exh.DM and Exh.DN, F.I.R. No,434/89 under section 353/322/307, P.P.C., 13 20-65, A.O. At P.S. Sadar Gujrat i.e, Exh.DP.
' However, both the respondents neither opted to make statements on oath in disproof of the charges as provided under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
7. Upon conclusion of the trial, the learned trial Court vide judgment dated 16-6-2011 has acquitted the accused/present respondents Nos.2 and 3 of the charges by extending them benefit of doubt.
8. Before proceeding further in the matter, we would like to point out that non-bailable warrant of arrest of Zafar Shah/accused/respondent No,3 were issued by this Court on 19-11-2012 and 3-12- 2012 and according to the report of Bashir Ahmad, ASI, P.S Saddar Gujrat dated 26-1-2013 forwarded by the S.H.O. Police Station Saddar Gujrat, the said Zafar Shah had gone abroad. Hence, perpetual non-bailable warrants of arrest of Zafar Shah/respondent No,3 are ordered to be issued and the instant appeal to the extent of Zafar Shah is consigned to the Record Room. However, the appellant can get the instant appeal resurrected after the arrest of Zafar Shah/respondent No,3.
Now, we proceed to adjudicate the instant appeal only to the extent of respondent No,2/Muhammad Sharif.
9. Learned counsel for the appellant submitted that the impugned judgment is the result of misreading and non-reading of evidence available on record. He further submitted that the sufficient incriminating evidence was produced by the prosecution which proved that the present respondents had committed Gang Rape and the learned trial Court has wrongly acquitted them.
He further submitted that the learned trial Court totally ignored the legal value of the statement of the victim which was duly supported by medical evidence and the report of the Chemical Examiner. He maintained that the respondents remained absconder for a long period which proved their involvement in the case. He contended that the learned trial Court while acquitting the respondents did not take into consideration the findings recorded by his predecessor in the judgment dated 15-5-2010 whereby a coaccused/Mirza Aftab Ahmad of the same F.1.R. Was convicted on the basis of similar evidence. He claimed that the Investigating Officer did not investigate the case fairly in order to protect his colleague namely Mirza Aftab Ahmad who is Sub- Inspector in the Police Department. Finally, he pleaded that the respondents No,2 may be convicted for commission of the offence of "zina" and sentenced accordingly in accordance with law.
10. Conversely, the learned counsel for respondent No,2/ Muhammad Sharif raised a preliminary objection to the effect that the instant appeal is barred by time. He submitted that the instant appeal has been filed by a person aggrieved by the order of acquittal passed in a case arising out of F.I.R. No,449 of 2005, dated 22-5-2005 and as such, according to section 417(2-A), Cr.P.C., the period of limitation for filing of such an appeal, is only thirty days. He explained that the impugned judgment was passed on 16-6-2011, whereas the instant appeal has been filed on 16-8-2011 i.e, after a period of sixty days. On merits, he submitted that acquitted accused/Muhammad Sharif was not named in the F.I.R. He, further submitted that initially, not only the first Investigating Officer but also Malik Liaqat Ali DSP/RIB Gujranwala found the accused nominated in the F.I.R. Innocent and came to the conclusion that Mst. Saiqa Rashid was neither abducted nor subjected to "zina". The police also recommended the case for cancellation vide daily diary No,47, dated 21-4-2007. However, a report was submitted under section 173, Cr.P.C. In the learned trial Court while placing the name of the accused persons in Column No,2. He contended that neither the victim was recovered from the custody of acquitted accused/Muhammad Sharif nor the grouping of the semen could be done by the Serologist as evident from the report Exh.PK. He further contended that the dera' of Muhammad Sharif where the victim.Was allegedly confined and subjected to gang rape was neither pointed out by the victim nor the Investigating Officer could locate the same. Lastly, he argued that the prosecution could not prove the case against acquitted accused/Muhammad Sharif beyond reasonable shadow of doubt and he was rightly acquitted by the learned trial Court vide impugned judgment dated 16-6-2011.
11. However, the learned Additional Prosecutor-General Punjab, while supporting the instant appeal, submitted that the solitary statement of the victim namely Mst. Saiqa Rashid wherein she stated that Muhammad Sharif had been committing sexual intercourse with her during her illegal detention, is sufficient to convict the said accused.
12. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent No,2/Muhammad Sharif and the learned Additional Prosecutor-General Punjab. We have also carefully examined the record and the impugned judgment dated 16-6-2011.
13. First of all, we would like to decide the question of limitation for filing of the instant appeal which has been raised by the learned counsel for respondent No,2/Muhammad Sharif. Admittedly, the instant appeal has been filed by a lady/Mst. Zohra Bibi, who is aggrieved of the order dated 16-6- 2011 whereby respondent No,2/Muhammad Sharif has been acquitted by the learned Additional Sessions Judge Gujrat in a case arising out of F.I.R. No,449 of 2005 dated 22-8-2005. Ordinarily, against an order of acquittal passed by a trial Court, an appeal is filed in the High Court in the light of section 417, Cr.P.C. There is no cavil to the legal proposition that the period of limitation for filing an appeal in the High Court, by an aggrieved person against an order of acquittal passed by the trial Court is thirty days. According to section 417(2-A), Cr.P.C, which is being reproduced hereunder for ready reference and proper appreciation:- ' Sec.417. Appeal in case of acquittal.---(1) Subject to the provisions of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court ,from an original or appellate order of acquittal passed by Court other than a High Court. -(2) ...................
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.
14. The impugned order of acquittal was passed on 16-6-2011 whereas the instant appeal was filed on 16-8-2011 i.e, after more than thirty days. Here, we would like to point out that the learned counsel for respondent No,2/Muhammad Sharif has totally ignored the fact that the instant appeal was entertained and being adjudicated upon under Article 203DD of the Constitution of Islamic Republic of Pakistan, which defines the revisional and other jurisdiction of the Federal Shariat Court of Pakistan. Article 203DD of the Constitution of Islamic Republic of Pakistan is being reproduced hereunder for ready reference:-- ' Art-203DD. (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence. (underlining is for emphasis)
The proviso of clause (2) of Article 203DD empowers this Court to convert a finding of acquittal into one of conviction, subject to providing an opportunity to an acquitted accused of being heard in his own defence. Hence, it is clear that the instant appeal against the acquittal order is to be governed by Article 203DD of the Constitution of Islamic Republic of Pakistan.
15. The Federal Shariat Court has made Rules for carrying out the purposes of chapter 3-A of the Constitution of Islamic Republic of Pakistan, which are called as Federal Shariat Court (Procedure)
Rules, 1981. According to Rule-18(a) of Rules ibid, an appeal shall be presented to the Court within sixty days from the date of the order or decision appealed from.
' Provided the Court may for sufficient cause extend the period. (Emphasis supplied)
16. It is worth-consideration that the instant appeal was entertained by the office of the Federal Shariat Court of Pakistan under Rule 18(a) of the Federal Shariat Court (Procedure) Rules, 1981 which provides a period of sixty days for filing an appeal. There is also no denying of the fact that according to the office of the Federal Shariat Court of Pakistan, the instant appeal was filed within the period of limitation i.e, sixty days. Hence, it is held that the provision of section 417(2-A), Cr.P.C.
Would not be applicable to the instant appeal, which is being heard and decided in accordance with the jurisdiction vested in the Federal Shariat Court as provided under Article 203DD of the Constitution of Islamic Republic of Pakistan.
17. Needless to mention here that the Federal Shariat Court (Procedure) Rules, 1981 which have been framed in exercise of the powers conferred by Article 203J of the Constitution of Islamic Republic of Pakistan, would have precedence over any other procedural law including Cr.P.C. Consequently, the objection of the learned counsel for respondent No,2/Muhammad. Sharif regarding the filing of the instant appeal after the period of limitation is overruled and the instant appeal is held to be within the period of limitation as provided under Rule 18(a) of the Federal Shariat Court (Procedure)
Rules, 1981.
18. Now, we advert to the merits of the instant appeal qua the acquitted accused namely Muhammad Sharif. From the bare perusal of the F.I.R. No,449 of 2005, dated 22-8-2005 lodged by Mst. Zohra Bibi/complainant/present appellant, it is revealed that neither Muhammad Sharif was implicated as an accused in the said F.I.R. Nor any allegation was leveled against him by the complainant. Surprisingly, the complainant/present appellant Mst. Zohra Bibi while making her statement as P.W.2 in the learned trial Court did not utter a single sentence regarding the involvement of Muhammad Sharif/respondent No,2. The only evidence available on the record of the learned trial Court against the acquitted accused/Muhammad Sharif is the sole statement of Mst. Saiqa Rashid (victim), who while appearing as P.W.3 stated that accused namely Mst. Sumaira, Mst. Zubaida (since tried and convicted) along with Shoukat and Ali Gujjar (since killed in police encounter) forcibly took her to a `dera' situated at unknown place, which belonged to Muhammad Sharif. P.W.3 further stated that she was kept in illegal detention at the aforesaid `dera' for about two months and eleven days and during the said period, Muhammad Sharif along with Mirza Aftab Baig and Shaukat (co-accused) used to commit sexual intercourse with her. However, in her cross- examination Mst. Saiqa Rashid/P.W.3 explained that the Investigating Officer never took her to the `dera' of Muhammad Sharif wherein she was subjected to zina'.
19. In this case, the only incriminating evidence against the acquitted accused/Muhammad Sharif is the solitary statement of the victim namely Mst. Saiqa Rashid. No doubt, the Superior Courts in a number of cases have held that the single testimony of the prosecutrix in the cases of rape is sufficient to record conviction, if the same is confidence-inspiring. However, in this case the statement of victim/Mst. Saiqa Rashid is neither confidence inspiring nor could be believed as there are many contradictions, discrepancies and dishonest improvements in her statement.
20. Undeniably, Mst. Saiqa Rashid was not recovered from the `dera' of Muhammad Sharif. She was produced by Mst. Zubaida lhsan, Nazim Union Council Gujranwala before the police on 3-11-2005.
However, according to the recovery memo Exh.PJ, the recovery of Mst. Saiqa Rashid has been shown in F.I.R. No,531 dated 29-10-2005 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered in Police Station Saddar Gujrat whereas, the impugned judgment was passed in.a case arising out of F.I.R. No,449 of 2005 dated 22-8-2005 registered in Police Station Saddar Gujrat. The swa bs, which were taken from the vagina of Mst. Saiqa Rashid by lady Dr. Anjum Ara/P.W.1 on 3-11-2005,were sent to the office of the Chemical Examiner on 10-11- 2005, who found the same to be stained with semen but the Chemical Examiner sent one swab to Serologist for semen grouping. According to the report of the Serologist/Exh.PK, the one vaginal swa b, which was sent to him, was insufficient for grouping. The victim/Mst. Saiqa Rashid according to her own statement (P.W.3) was subjected to sexual intercourse by three accused namely Mirza Aftab Baig, Shaukat and Muhammad Sharif during a period spreading over two months and eleven days of her illegal detention in 'clera' of Muhammad Sharif. In the absence of semen grouping as well as DNA test, no accused could be held guilty of commission of the offence of- "zina" with Mst.
Saiqa Rashid.
21. Secondly, neither any site plan of `dera' of acquitted accused/Muhammad Sharif was available on record nor the victim specifically stated that how many times, she was subjected to 'zina' by Muhammad Sharif during a long period of more than two months. The statements of the complainant/P.W.2 as well as Mst. Saiqa Rashid/victim(P.W.3) are replete with contradictions and inconsistencies, particularly with regard to the statement of victim under section 161, Cr.P.C. As well as on many other material points. Furthermore, the animosity of the complainant with the present acquitted accused is fully established from the fact that he was involved in the murder case of another daughter of the complainant namely Mst. Asifa Rashid, wherein he was acquitted by the learned trial Court and a revision petition is still sub judice in the Hon'ble Lahore High Court Lahore.
It is also pertinent to mention here that the acquitted accused/Muhammad Sharif was found to be innocent by two successive Investigating Officers and the case was recommended for cancellation vide daily diary No,47/07, dated 21-4-2007. There is no cavil to the legal proposition that the ipse dixit of the police is not binding on the court but in the peculiar D circumstances of this case and in view of the contradictory evidence of the prosecution coupled with the antecedent of the complainant's family, the chances of the false implication of the respondent No,2/Muhammad Sharif cannot be ruled out.
22. From the above evaluation of the evidence on record, it is established that the prosecution case is full of doubts. 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.
23. There is another very important aspect of this case, which cannot be brushed aside i.e, the instant appeal is against an order of acquittal. The standard of assessing of evidence in appeal against acquittal are quite different from those laid 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. The appellate court would not interfere in an acquittal judgment unless the same is found to be perverse, arbitrary, capricious, result of gross misreading or non-reading of evidence, resulting in miscarriage of justice. It is a well-settled principle of law that presumption of innocence of an accused is multiplied after his acquittal from a court of competent jurisdiction. In this respect, we would like to refer to the case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCMR 983 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. A judgment of acquittal cannot be reversed even though second opinion may be reasonably possible.
24. In the end, it is also extremely relevant to mention here that during an earlier trial of the co- accused of the present respondent No,2/Muhammad Sharif arising out of the same F.I.R. No,449 of 2005 dated 22-8-2005 under section 10(4) Offence of Zina (Enforcement of Hudood (Enforcement of Hudood) Ordinance, 1979 registered with Police Station Saddar Gujrat, the learned trial Court vide judgment dated 15-5-2010 has convicted a co-accused namely Mirza Aftab Ahmad for commission of an offence falling under section 10(3) Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced him to ten years' R.I. However, this Court after hearing the appeal of the said Mirza Aftab Ahmad, bearing Criminal Appeal No,72-I of 2010 has acquitted him of the charges vide judgment dated 15-2-2013.
25. For the foregoing reasons, we have come to the conclusion that the prosecution has failed to prove the charges against acquitted accused/present respondent No,2 (Muhammad Shareef) beyond reasonable shadow of doubt. Resultantly, the impugned judgment dated 16-6-2011 whereby the learned Additional Sessions Judge Gujrat has acquitted respondent No,2/Muhammad Shareef of the charges by extending him benefit of doubt, is unexceptionable. Consequently, the instant appeal filed by Mst. Zohra Bibi against the acquittal of Muhammad Shareef/respondent No,2 is dismissed.
' These are the reasons for our short order dated 7-2-2013.