QAZI MUHAMMAD AMIN AHMED, J:- Through this Crl.Appeal Tanveer Ahmad hereafter referred to as the appellant calls into question judgment dated 04.04.2011 passed by a learned Additional Sessions Judge at Kharian, whereby he stands convicted under Sections 365-B and 376 PPC with sentence of imprisonment for life alongwith fine of Rs. 20,000/- on both count or in default thereof three months S.I on each count; sentences to run concurrently with benefit of Section 382(b) Cr.P.C.
2. M/s Tanveer Ahmad, Iftikhar Ahmad, Mst. Neelam Bibi and Muhammad Sharif accompanied the appellant during the trial, however, they were acquitted vide the same judgment. Prosecution case set up in complaint (Ex.PA) lodged by Mst. Nafeera Nazir (PW-1), hereinafter referred to as the prosecutrix is that she looked after household affairs in her house in village Bangial while her husband lived for good in Italy; it is asserted in Ex.PA that she had valuables comprising of clothes, gold ornaments, given by her parents that she used to wear more often than not and it was on 30.03.2008 at about 4.00 p.m when she was induced away by Mst. Neelam Bibi, real sister of the appellant to the place of occurrence where the appellant, his brother Iftikhar Ahmad, Muhammad Sharif father in law of Iftikhar accused, Farooq Ahmad and Jabar Ali were already present who forcibly boarded her in a car and took her way in a house located at a deserted place where Tanveer Ahmad raped her while other accused that included Neelam bibi remained present outside the said house. It is complainant's case that appellant deprived her of gold ornaments weighing 7 tolas and an amount of Rs. 50,000/- and that she was rescued after a short while by her maternal uncle Amanat Ali (Pw-2) and Haji Muhammad Sharif. The incident was reported on 4.4.2008 at about 2.30 p.m with police station Kukrali District Gujrat. The prosecutrix was medically examined by Dr. Shabnam Arif on 5.4.2008 at about 4.30 p.m. The Medical Officer did not appear as witness, however, according to medico legal certificate (Ex.Cw-5), the prosecutrix at the time of her medical examination was found well oriented in time and space with no marks of violence on her body. Vaginal swa bs taken, however, according to report of Chemical Examiner (Ex.CW-5/B) were found stained with semen; there is no serological grouping or DNA profile generation to advance the prosecution case on forensic side.
3. Feeling dissatisfied with the investigation, the prosecutrix opted to bring a private complaint wherein process was issued against the accused on 11.01.2010 and they were indicted on 4.2.2010 when they claimed trial.
4. Complainant produced 3 witnesses including herself while 9 witnesses were examined as court witnesses; the main stay of the prosecution is comprising of statement of Mst. Nafeera Nazir (PW-1) and Amanat Ali (PW-2) who furnished ocular details of the occurrence. On the conclusion of the trial, learned trial Judge acquitted all the accused but the appellant who was convicted and sentenced as mentioned above.
5. Learned counsel for the appellant contends that the prosecution case on the face of it is not believable in the given background of our social ethos and norms, a brother would not join hands with the real brother and sister in adventures involving moral turpitude; that evidence which has been disbelieved qua 5 out of 6 accused cannot be relied upon to record conviction against the appellant without independent corroboration which is miserably lacking in the case; that there is inordinate delay between the occurrence and report to the police for which there is no plausible explanation.
6. Conversely, the learned DPG assisted by learned counsel for the complainant submits that the prosecution has been able to bring home charge against the appellant beyond a shadow of doubt and there existed sufficient evidence which squarely implicated him in the crime.
7. I have heard the learned counsel for the parties, learned DPG and perused the record.
8. It is an admitted position that the appellant is real brother of Iftikhar Ahmad and Mst. Neelam Bibi co-accused whereas Muhammad Sharif is father in law of Iftikhar Hussain co-accused; Farooq Ahmad and Jabar Ali are from the brotherhood. It is really hard to conceive that Neelam bibi a real sister would offer her good offices to induced away the prosecutrix to eventually land in the clutches of the appellant so as to be ravished and it is equally hard to believe that Tanveer Ahmad would solicit the services of his real sister to facilitate him in such a repugnant pursuit, that too in the company of Iftikhar Ahmad another real brother joined by his father in law Muhammad Sharif; fortunately we have not yet reached that level of decadence. Mere rendition of allegations no matter how impressively articulated cannot sustain a criminal charge unless it successfully qualified the test of probability. Given social ethos, morals and norms embedded in our way of life, such happenings possibly cannot be contemplated; en masse acquittal of co-accused whose roles have been inexorably intertwined with that of the appellant, establish in itself that concurrence did not take place in the manner as alleged by PWs 1 & 2. Unexplained delay of 5 days in reporting the matter to the police is yet another flaw in the prosecution case. The Medical Officer did not appear in the witness box and even if medico legal certificate is taken into evidence it does not advance the prosecution case in the absence of serological grouping and DNA identity analysis. A reference about wearing of gold ornaments by the prosecutrix in Ex.PA was hardly required to set the law in motion and the exercise instead appears to have been calculated to frame the appellant on an additional charge; that too crumbled as nothing was recovered from the appellant during the course of investigation. In dispensation of criminal justice, a streak of doubt entitles an accused to claim freedom. Circumstances referred to above, raise suspicions about the truthfulness of the accusation and this suspicion taken from any angle is neither illusionary nor imaginary.
9. In view of the foregoing reasons, Crl.Appeal No. 679 of 2011 is allowed. Impugned judgment dated 04.04.2011 is set-aside. Conviction and sentences recorded therein as a result whereof, appellant is acquitted from the charge and he shall be set at liberty if not required in any other case.