' LAL JAN KHATTAK, J.---Through this common judgment we intend to dispose of criminal appeal No.28 of 2013 and Criminal Revision No.8 of 2013 as both the matters are the offshoots of one and the same judgment dated 12-9-2013 of the learned Sessions Judge D.I. Khan delivered in case F.I.R.
No. 182 dated 7.6.2012 registered under sections 376/496-A, P.P.C. At Police Station Kulachi, D.I. Khan, whereby appellant Abdul Razaaq has been convicted under section 376, P.P.C. And sentenced to imprisonment for fourteen years' R.I. With a fine of Rs. 50,000, in default whereof to further undergo simple imprisonment for six months. The appellant has also been convicted under section 496-A, P.P.C. And sentenced to three years' R.I. With payment of fine amounting to Rs.20,000 in default of such payment he will suffer six months simple imprisonment. Both the sentences were ordered to run concurrently under the benefit of section 382-B, Cr.P.C. Through the aforesaid appeal, the appellant has impugned his conviction and sentence while the complainant has sought enhancement of the sentences through his criminal revision.
2. Prosecution case as per report lodged by complainant Khan Zaman (P.W.5) on 6-6-2012 is to the effect that preceding night his daughter-in-law Mst. Shabana Bibi and his daughter Mst. Ambreena were in the house of his co-villager Ghulam Abbas in connection with marriage ceremony. They at 2330 hours were on their way to return home when two persons were found in the street with motorcycle. One of them caught hold of his daughter-in-law Shabana Bibi and with the help of the other took her away on motorcycle. Out of the two accused one was identified as Abdul Razak by his daughter Ambreena Bibi.
3. The report was lodged on 7-6-2012 at 12-45 p.m. While the abduetee Shabana was recovered on 8-6-2012 when she was found riding with accused Abdur Razak on motorcycle on a katcha path of Gomal Zam Dam.
4. On arrest of the accused, complete challan was put into court against him and he was indicted for the offences mentioned above to which he pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case against the accused produced and examined as many as 11 witnesses whereafter statement of the accused was recorded under section 342, Cr.P.C. In which once again he professed innocence, however, neither he examined himself on oath nor produced any evidence in his defence. The learned trial. Court after conclusion of the trial and hearing the respective counsels for the parties found the accused guilty of the offence with which he was charged and on conviction sentenced him as mentioned in para No.1 of this judgment.
6. Learned counsel for the appellant in support of the appeal contended that the prosecution has miserably failed to prove its case against the appellant through cogent, -convincing and worth reliance evidence. He submitted that the prosecution evidence has not been corroborated by any circumstantial evidence and case against the appellant is the result of deliberation and consultation which has been registered after much delay with no plausible explanation for the same.
7. As against the above, learned counsel for the complainant and learned Additional Advocate- General supported the judgment impugned on the ground that there is no mala fide on behalf of the complainant for false implication of the appellant who according to them is fully connected with the commission of the offence. Learned counsel for the complainant further submitted in support of the revision petition that though the prosecution has successfully proved its case against the appellant-convict but the sentences so awarded to him by the learned trial Judge are not in consonance with law and gravity of the offence which need adequate enhancement.
8. We have head learned counsel for the parties and gone through the record of the case.
9. Prosecution case mainly hinges on the oral testimony furnished by Mst. Shabana Bibi and Mst.
Ambreena. Both the witnesses appeared before the court and recorded their statements as P.Ws. 6 and 7 respectively. P.W.6, the abductee, deposed that she at the relevant time along with her sister-in-law was returning home from the marriage ceremony of their neighbour Ghulam Abbas and the appellant with another person was found along with motorcycle in the street. She deposed that at the time when they were passing near them, the appellant caught hold of her and forcibly made her seated on the motorbike and took her to a jungle where he committed rape with her several times. She further deposed that after two nights the appellant took her from there and while passing through the katcha path of Gomal Zam Dam police recovered her and arrested the accused.
10. Prosecution witness Ambreena Bibi testified before the court that when she and Shabana were on their way home after attending the marriage ceremony of their neighbour, in the street there were present two persons with a motorcycle, one of them was the accused facing the trial. She deposed that out of the two one caught hold of Shabana and seated her on motorcycle and took her away whereafter, she came home and narrated the story to her father.
11. Admittedly both the ladies were quite young being 16-17 years of age. It is their case that one of the accused caught hold of Shabana and forcibly seated her on motorcycle and .Took her away.
The story as narrated is not appealable to a prudent mind as a single person cannot compel a young woman to sit on the pillion of a motorcycle against her will. Even if he is succeeded in doing so he will be unable to ride the motorcycle as it will jolt in case the person on the pillion slightly show any resistance. It is not the case of the prosecution that both the accused took Shabana on motorcycle. Extract from the testimony of P.W.7 Ambreena Bibi is as under:- "Accused facing trial caught hold of Shabana Bibi forcibly and took her away from there."
' In the ordinary course of event the above alleged act is not possible and it was not the prosecution case that Shabana was tied to the pillion or was made to sit tightlipped on the bike with dire consequences in case of any refusal or resistance by her.
12. Another important fact of the case is the delay in lodging the F.I.R. It is the case of the prosecution that Shabana was enticed away at 2330 hours by the appellant. It is also on record that within no time her father-in-law Khan Zaman P.W.5 was informed by her daughter Ambreena Bibi about the occurrence as he was present in his house which was adjacent to the place of occurrence but he lodged the F.I.R. On the second day and that too at 12-45 p.m., i.e. After a delay of 11 hours in spite of the fact that the accused was named to him by his daughter. Ordinarily delay in such-like cases is immaterial but when an accused is made known to a complainant party at the very outset of the case then the delay becomes fatal for the prosecution unless it is plausibly explained which is not the case here which fact casts serious doubt on the prosecution case.
13. The story of arrest of the appellant too is flimsy. According to P.W.9, he along with SHO of the police station went in search of the abductee to the area of Gomal Zam Dam where he saw her and the appellant riding on a motorcycle but ironically the motorcycle on which the appellant and the abductee were allegedly riding at the relevant time was recovered from the residential room of the co-accused Iqbal on 9-6-2012 while according to Exh.P.W.7/1, the appellant was arrested on 8- 6-2012 when he and the alleged abductee were riding on it. The recovery of motorcycle from the house of co-accused Muhammad Iqbal and that too on the subsequent day of arrest of the appellant brings the prosecution case under the heavy doubts.
14. For the above appreciation of case evidence, we have reached to a conclusion that .The prosecution has not proved its case against the appellant beyond any shadow of reasonable doubt. The case against the appellant is full of doubts and improbabilities benefit of which must go to him. Therefore, we accept appeal of the appellant, set aside his conviction and sentences and acquit him of the charges levelled against him. He shall be set at liberty forthwith if not required in any other case. Consequently the criminal revision of the complainant for the above reasons is found devoid of any merit which stands dismissed.
' Above are the reasons for our short order of even date.