' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Waqas Akhtar appellant has challenged the vires of the judgment dated 28-9-2010 handed down by the learned Additional Sessions Judge, Rawalpindi wherein the appellant was convicted under section 376, P.P.C. And he was sentenced to undergo rigorous imprisonment for five years along with fine of Rs.50,000 or in default of payment of fine to further undergo simple imprisonment for six months. The appellant was also convicted under section 496-A, P.P.C. And he was sentenced to undergo rigorous imprisonment for five years along with fine of Rs. 50,000 or in default of payment of fine to further undergo simple imprisonment for six months. Both the sentences were order by the learned trial court to run concurrently and benefit of section 382-B, Cr.P.C. Is extended in favour of the appellant.
2. According to the prosecution story unfolded in the FIR the complainant was resident of Mouza Meeran Kalan Chakri Road, Rawalpindi and he has arranged marriage of his son namely Naseer Hussain with Mst. Banni Begum about one and a half years of the occurrence. Out of that wedlock a son was born who was five months of age. Mst. Banni Begum has developed illicit liaison with one Waqas Akhtar resident of the same Mouza who has taken away Mst. Banni Begum along with her child at an unknown place for the purpose of committing Zina. Waqas Akhtar was seen by Sajjad Ahmad and Safeer Hussain when he was taking away Mst. Banni Begum and her son. EME number of the mobile set belonging to Waqas Akhtar was stated by the complainant as 35935803780575.
4. The prosecution in order to prove its case against the appellants examined as many as nine prosecution witnesses before the learned trial court. The ocular account has been furnished -by Munir Hussain complainant (P.W.3) and Mst. Banni Begum victim (P.W.4). The investigation in this case has been conducted by Mehmood Ahmad, SI (P.W.5) who prepared visual site-plan (Ex.PF), arrested the appellant on 6-4-2010, recovered the abductee along with her son Abdullah, got recorded supplementary statement of the complainant on the application made by him wherein he implicated Jehangir and Tahir as accused of abetment and thereafter found Jehangir and Tahir co-accused of the appellant to be innocent he submitted report under section 173, Cr.P.C. In the learned trial court. He also stated about various steps taken by him during the investigation of this case. The medical evidence in this case was furnished by Dr. Kiran Ahmad, Women Medical Officer, BBH, District Rawalpindi who found no mark of violence on the body of victim Mst. Banni Begum and she further observed that hymen of the abductee was not intact and admits two fingers easily. The doctor also obtained three swa bs and sent the same for Chemical Examiner.
6. In his statement recorded under section 342, Cr.P.C. The appellant had controverted the allegations levelled against him by the prosecution and he had also professed his innocence. He has opted not to adduce evidence under section 340(2), Cr.P.C. In response to a question that why this case against you and why the P.Ws. Deposed against you the appellant Waqas Akhtar replied as under:-- "I am running a grocery shop in front of the house of the complainant. The complainant owed money from me due to which two days prior to the alleged occurrence a scuffle took place between me and the complainant and his son Naseer Ahmed. In the result of this grudge the complainant with the connivance of local police and P. Ws. Got registered this false case against me. The witnesses are interested witnesses who on the behest of complainant deposed against me. The local police in league with the complainant side. The alleged abductee is daughter in law of the complainant and in the present case no cogent evidence and even no evidence has been brought on the record to connect me with the alleged offence. There are major contradictions in the prosecution evidence but nor the minor discrepancies hence it cannot be relied upon.
Moreover the prosecution evidence is based on hearsay evidence contradictory evidence and self contradictory evidence of the P. Ws. Even otherwise in such like allegations according to Islamic Law as well as law of land at least two male independent eye witnesses are required to prove such allegation,. But in the present case no eye witness is available on record and even no circumstantial evidence is available against me."
7. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, the instant appeal before this Court.
8. Learned counsel for the appellant submits that the judgment is against law and facts of the case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The material available on record does not justify the conviction and sentence awarded to the appellant and the same is not maintainable in the eyes of the law. The appellant has been involved in this case due to dispute of money as he was running grocery shop in front of the resident of the alleged abductee and the complainant. The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case.
The ocular account has been furnished by interested and related witnesses whose evidence cannot be relied upon to record conviction of the appellant. On the same set of evidence two co- accused of the appellant namely Jehangir Akhtar and Tahir Mehmood have been acquitted of the charge by the learned trial court whereas the appellant has been convicted and sentenced so such evidence cannot be relied upon qua culpability of the appellant in this case. In the circumstances the story narrated by the prosecution in the FIR has become doubtful and the benefit of doubt always goes to the accused. The learned counsel prays for acquittal of the appellant from the charge.
9. On the other hand learned Deputy Prosecutor-General contends that the prosecution has successfully proved its case against the appellant by adducing oral as well as medical evidence.
The medical evidence in this regard fully corroborates the story of FIR. As the parties to this case were known to each other, therefore, there was no chance of mistaken identity or false implication of the appellant. The prosecution witnesses are consistent on each and every material point. There seems no discrepancy in their statements. There was no enmity between the parties so possibility of false implication of the appellant in this case is ruled out. The appellant has played with the honour and modesty of the complainant who is not entitled for any concession by this Court. The plea taken by the appellant in his statement under section 342, Cr.P.C. Has no nexus with the present occurrence hence it does not carry weight and is of no help to the defence. The prosecution has proved its case against the appellants beyond any reasonable doubt, thus, the appeal filed by the appellants be dismissed.
10. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.
11. According to the prosecution story the occurrence had taken place on 22-3-2010 at 2.00 p.m.
Whereas the same had been reported to the police by Munir Hussain complainant (P.W.3) on 27-3- 2010 at about 12.10 p.m. Thus, there is a delay of five days in registration of the FIR and the complainant had not explained the delay in reporting the matter to the police which shows that the matter has been reported to the police after due deliberations and consultations.
12. After registration of the FIR Munir Hussain complainant (P.W.3) has also moved an application (Ex.DA) before the Regional Police Officer, Rawalpindi Region, Rawalpindi wherein astonishingly he had kept a bay from his allegation levelled in the FIR because in the FIR he had pointed accusing fingers towards the appellant who had abducted his daughter-in-law for the purpose of Zina but in Ex.DA he had categorically stated that his daughter-in-law and her grandson had been abducted by the appellant for the purpose of ransom of Rs. 10,00,000/. He had mentioned the time of abduction as 3.00 pm whereas he had pointed out the time of abduction of his daughter-in-law as well as his grandson in the FIR as 2.00 pm. Another intriguing feature in this case is that in the FIR Sajjad Ahmad and Safeer were mentioned as eyewitnesses whereas in Ex. DA set of witnesses was changed by the complainant (P.W.3) and names of Jehangir and Nazeer Hussain were introduced as eyewitnesses. He did not stop here but he has also improved story in his statement got recorded before the learned trial court wherein he stated that he was told by the eyewitnesses that at the time of abduction the appellant was holding pistol and he has also taken away Rs. 30,000. All the above mentioned divergent stands taken by the complainant at different stages of this case make the story of the prosecution to be doubtful.
13. The prosecution has also produced Mst. Banni Begum, the alleged abductee as P.W.4 who after her recovery had got recorded statement under section 161, Cr.P.C. Before the investigating officer wherein she had surprisingly not levelled allegation of Zina on the appellant but in her statement before the learned trial court she has leveled allegation of committing Zina with her against the appellant. She also stated in her statement before the learned trial court that the police officer/Thanedar recovered her from a house situated in Kotli Sattian but when Mehmood Ahmad, S.I./Investigating Officer appeared before the learned trial court as P.W.5 he has categorically stated in his Prossexamination that he had recovered the alleged abductee from Adiyala Road, Rawalpindi. According to the prosecution own case Nazeer and Shabbir were the witnesses of recovery of alleged abductee/victim Mst. Banni Begum but admittedly both of them were not produced before the learned trial court to prove the recovery proceedings. Even the old lady from whose house according to Mst. Banni Begum she was recovered was also not produced before the learned trial court. So an adverse inference can be drawn that had they been produced by the prosecution they would not have supported the recovery proceedings withholding of such evidence does not draw any other concept into the mind of this Court except that a story has been carved by the prosecution to falsely involve the appellant in this case. I may observe here that Mst.
Banni Begum (P.W.4) was the star prosecution witness in this case and her sole statement was very much important burshe too did not stick to a single stance and she has also tried to improve the prosecution story set forth in the FIR. On the same set of evidence the learned trial court has already acquitted two co-accused of the appellant so the same set of evidence cannot be relied upon to the extent of the appellant. Thus, I am of the confident view that the shabby evidence furnished by Munir Hussain complainant (P.W.4) and Mst. Banni Begum (P.W.4) to furnish ocular account could not inspire confidence of this Court to be relied upon the same and is not above- board to put a worthy reliance upon it. The prosecution has failed to prove the factum of abduction in this case.
16. Besides the above discussed evidence against the appellant, the prosecution had also relied upon the medical evidence which is very much important in this case. Dr. Kiran Ahmad, Woman Health Officer, BBH, Rawalpindi has appeared before the learned trial court as P.W.6 and she has categorically stated that she had not observed any mark of violence on the body of victim. She has also taken three swa bs and sent the same to Chemical Examiner for semen grouping but admittedly neither any report of Chemical Examiner in this regard is available, nor is any report regarding DNA test available so as to prove the factum of commission of Zina by the appellant with the victim. In the backdrop of such a situation the medical evidence remained unable to provide any corroboration to the allegation of commission of Zina by the appellant.
17. It is settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused. I would D also like to observe here that it is better to acquit ten guilty persons rather than convicting one innocent person.
18. The upshot of my discussion made above is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is on bail, his bail bonds are cancelled and surety stand discharged from his liability.