SHAHID HAMEED DAR, J. This criminal appeal arises from the judgment dated 22.5.2010, whereby the learned Additional Sessions Judge, Sargodha convicted Muhammad Mumtaz (appellant) under sections 376, 337-J, P.P.C. And sentenced him on conclusion of his trial in case-FIR No,240/07, dated 7.6.2007, registered for offences under sections 376, 337-J, P.P.C. At Police Station Saddar Sargodha, as follows:-- i) Under section 376, P.P.C. To rigorous imprisonment for ten years with fine of Rs,50,000/- or in default thereof to undergo simple imprisonment for six months. Ii) Under section 337-J, P.P.C. To rigorous imprisonment for five years as Ta'zir.
' He was extended the benefit of section 382-B, Cr.P.C. With the observation that his sentences would run concurrently.
2. Precisely, the prosecution story as narrated by Imam Bakhsh, the complainant (P.W.2) in the FIR is that he along with his wife Mst.Bano, son Amanullah, aged 22 and daughter Mst.Iqbal Bibi, aged 18/19, was present at his house on 5.6.2007; his maternal nephew Mumtaz (appellant) visited him at Shamvela; he went to his haveli after taking supper so as to look after his cattle- head; he heard some noise at about 11.00 p.m., so he awoke Zulfiqar (P.W.3) and Mukhtar PW (not produced) and they all ran to his house, where they saw Mumtaz (appellant) committing rape on his daughter Mst.
Iqbal Bibi the rapist saw the on-rushers and he jumped outer-wall of the house to runaway, after he picked-up his shalwar from the cot; the complainant found his son Amanullah unconscious; his daughter Mst.Iqbal Bibi also fainted a little while thereafter; he could not manage any conveyance at night so he took his son and daughter to Civil Hospital Sargodha for treatment, the following morning in the company of Zulfiqar (P.W.3) and Mukhtar PW (not produced). He took both of them to the police station, after they regained their senses and contended before the police that Mumtaz accused (appellant) had administered some intoxicating juice/liquid to them and forcibly violated his daughter Mst. Iqbal Bibi. The complainant reported the matter to Muhammad Hanif ASI, PW (not produced), at the police station, who, as per his narration, registered FIR No,240/07 {supra).
3. The appellant-accused was arrested on 7.11.2009. On completion of necessary investigation, report under section 173, Cr.P.C. Was submitted against him before the learned trial court for his trial in accordance with the law.
4. On indictment, the appellant pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced ten witnesses, namely Dr.Muhammad Afzal (P.W.1), Imam Bakhsh (complainant/P. W.2), Zulfiqar (P.W.3), Mst. Iqbal Bibi (P.W.4), Amanullah (P.W.5), Mst. Shazia Naureen SI (P.W.6), Fazal Elahi 1262/C (P.W.7), Muhammad Ramzan ASI (P.W.8), Mukhtar Ahmad SI {P.W.9) and Dr. Rehana Rashid (P.W.10). Learned public prosecutor submitted DNA-profile report, which was in negative, in evidence as Exh.PH and closed the prosecution case. Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. While answering the question, why this case was registered against him and why the PWs had deposed against him, he stated as under:-- "The complainant is my real maternal uncle, who got Rs,50,000/- loan from me and just to usurp that loan, he has falsely implicated me in this case and the PWs are the son and nephew of the complainant and belong to the complainant family and are inimical to me."
' He declined to make statement on oath or lead any evidence in defence.
' Learned trial court concluded trial of the accused through the impugned judgment by holding him guilty of the charge and awarded him the sentence, in mentioned terms.
5. Learned counsel for the appellant has submitted that the appellant did not commit any excesses against Mst.Iqbal Bibi (P.W.4) nor he forcibly subjected her to sexual intercourse and contention of the complainant in this regard was patently false; there existed no evidence as to the allegation that the appellant had administered any foul material to Mst. Iqbal Bibi (P.W.4) and Amanullah (P.W.5) or they had been rendered unconscious by him; the testimonies rendered by the alleged victim and the eye-witnesses are loaded with many a contradictions and discrepancies, which had reduced their credibility to nothing; the prosecution could not establish the charge against the appellant during trial and he had been held guilty by the learned trial court conjecturally; the impugned judgment is not based on any cogent or plausible reasons, therefore, it may be set aside and the appellant may be acquitted of the charge.
6. On the contrary, learned Deputy Prosecutor General Punjab has argued that the appellant acted in a beastly way as he betrayed trust of his real maternal uncle by forcibly doing sex with his daughter; the testimonies of the victim-lady and that of the eye-witnesses are confidence inspiring and supportive inter-se, through which prosecution has proved its case against the appellant beyond all shadows of doubt; the impugned judgment is based on judiciously drawn conclusions, hence, it may be sustained.
7. Learned counsel for the parties have been heard at length and the relevant record perused in depth.
'This is a case whereby prosecution did not feel the necessity of tendering FIR No,240/07 (supra) in evidence. A carbon copy thereof is, however, available on the record, which showed that it had been scribed by Muhammad Hanif ASI, PW (not produced) on the statement of Imam Bakhsh (complainant/P.W.2) at 12.30 a.m. On 7.6.2007, as regards the occurrence which took place at 11/12.00 midnight on 5.6.2007. The record is silent as to what the prosecution did of Muhammad Hanif ASI, for he had not been given up by the public prosecutor at any stage of the trial. The complainant Imam Bakhsh appeared as P.W.2 and submitted that he had got lodged the FIR against, Muhammad Mumtaz accused/appellant on 7.6.2007, but he did not claim if it had been drawn in line with his contention nor did he tender it as a piece of evidence. Mukhtar Ahmad SI (P.W.9), who investigated this case did not say anything qua recording of FIR by Muhammad Hanif ASI. It may be found from the order sheet that learned trial court summoned said Muhammad Hanif ASI through non-bailable warrant of arrest on 6,5.2010 and fixed the next date as 7.5.2010, but interim order of the said date followed by a couple of other orders dated 10.5.2010 and 17.5.2010 did not reveal as to what happened with the non-bailable warrants of arrest issued against him nor did he turn up for his evidence. It could, however, be seen that the learned public prosecutor (ADPP) tendered a negative DNA-test report and closed the prosecution evidence on 17.5.2010 and learned trial court recorded statement of the accused (appellant) under section 342, Cr.P.C., the same day.
The delay in lodgment of FIR probably spans over twenty-four (24) hours and though it has not plausibly been explained by the complainant, yet, in such like cases, this interval might not be as significant as it may be in respect of cases of some other kind. The people generally hesitate and take time in reporting such like matters, involving their family name or dignity of the women-folk.
Besides, FIR is a beginning point of any criminal case, which would set the machinery of law into motion and process of collecting evidence of the parties involved would start thereafter. Hence, it may not be an important circumstance, if FIR (supra) had not been tendered in evidence either due to carelessness or forgetfulness by the prosecution. It, however, revealed the allegation that Muhammad Mumtaz accused (appellant), who was nephew of the complainant (P.W.2), had administered some intoxicating material to the complainant's son Amanullah (P.W.5) and his daughter Mst. Iqbal Bibi (P.W. 4) before he forcibly violated her and ran away, when complainant Imam Bakhsh (P.W.2) and his co-witnesses, Zulfiqar (P.W.3) and Mukhtar PW (not produced) came running to the spot at the crucial hour.
8. Mst. Iqbal Bibi (P.W.4), the alleged victim, is the star witness of the prosecution's case, whose testimony is full of self-contradictions and permeated by an element of unnaturalness. She contended that she was fully conscious when raped by the accused but she was unable to resist the sexual onrush of the accused being under effect of the intoxicating stuff, having been administered to her by the violator. She contradicted herself by contending that she was in a position to resist even though, under trance of intoxication.- The cot, whereon she had allegedly been raped by the appellant, was laid in the same compound close to the cots of his brother Amanullah (P.W.5) and mother Mst.Bano PW (not produced). Her father Imam Bakhsh, who told himself deaf and a person of weak eyesight in his testimony that he rendered as P.W.2, contentiously came running to the spot along with his nephew Zulfiqar (P.W.3) and another nephew Mukhtar PW (not produced) from the cattle-shed on his daughter's hue and cry but his wife Mst.Bano, who too was deaf like him, could not hear the cries despite being on a cot next to her daughter's cot, which location may be beheld from the visual site-plan (Exh.PB), drawn by Mukhtar Ahmad SI/I.O. (P.W.9). It emerges from the victim's statement that her mother's cot laid close to that of her own and it was so near that she could touch her arm to evade lewdly offensive of the accused but she did not do so. Should it be understood that she enjoyed sexual act of the accused being a consenting party thereto. She calculated duration of the licentious stint as 10/12 minutes but she could not recollect, if they both had ejaculated or not. She claimed that her clothes (shirt and shalwar) were torn due to resistance shown by her but she did not produce these items during the course of investigation. She clearly looked double-minded in her statement when she said that she had raised hue and cry but she "had no power to resist the commission of rape". She in the same breath also stated that she had resisted the accused when he committed rape on her. She could not tell as to how she had been intoxicated by the accused/appellant and her contention in this regard looked vague and evasive. She was sure that outer door of her house was not bolted and it was open at the time of occurrence and through this inlet her father and her cousins, Zulfiqar (P.W.3) and Mukhtar PW (not produced) had entered the house, after they heard her screaming.
They were three grown up persons and they could easily overpower the lone accused, who was not armed then. The unchained outer door would lead to suggest that the eye-witnesses had not seen the accused riding Mst.Iqbal Bibi when they reached there. The statement of the victim does not inspire confidence in any manner nor did it suggest that she had been done sex with by the accused against her will, if at all he had done it so.
9. The testimony of father of the victim-lady, Imam Bakhsh (complainant/ P.W.2) is also full of many a contradictions and discrepancies. He admitted in his statement that when he reached the place of occurrence, her daughter Mst.Iqbal Bibi laid unconscious but her wife Mst.Bano was fully conscious, though asleep. He also contended to have raised alarm when he reached the doorstep of his house and found Mumtaz accused committing rape on her daughter. He and his own nephews could easily catch the bottomless accused, who was admittedly alone and empty handed. He too told about the outer door being unbolted and found it ajar at the time of occurrence. His wife Mst.Bano is a crucial witness of this case, but she was not produced at trial, probably having declined to falsely depose against the accused. He despite being deaf heard shrieks of his daughter from a distance, while sleeping in the cattle-shed but his wife, who too was a person of impaired-hearing could not hear her daughter from the very next cot to that of hers.
She might have or not seen anything, as alleged by her husband (P.W.2) and her daughter (P.W.4), but her hesitation to depose against the accused certainly rFtlects on veracity of the tale told.
' The testimony of Zulfiqar (P.W.3), a cousin-brother of Mst.Iqbal Bibi, the victim (P.W.4) is also no exception, when it comes to adjudging truthfulness thereof as it is equally pregnant with many an improbabilities, like that of those, as found in the testimonies of the victim-lady and the complainant. His arrival at the place of occurrence along with his real brother Mukhtar PW (not produced) could only be deemed possible if it was believed that the deaf-complainant, who was their paternal uncle, had heard shrieks of his daughter at the cattle-shed and gone to their place to awaken them. It has been observed in the preceding lines that the complainant, being a person of hard of hearing could not possibly listen to screams of his daughter, if at all raised, for, those could not be heard by the mother, sleeping next to her cot, hence, Zulifqar's claim of being there at the spot at relevant time of the occurrence is not credible. He introduced an interesting fact when he said that there was no outer door of the house of the complainant but he also said in the same breath that the outer door was shut with an iron chain. He deposed that he and his companions tried to apprehend the accused but he made good his escape, though it was not so contended by the victim or by the complainant. The testimony of this witness (P.W.3) does no good to the statements of Imam Bakhsh (P.W.2) and Mst.Iqbal Bibi (P.W.4) being equally improbable and incredible.
10. Amanullah (P.W.5), real brother of the victim-lady, said nothing but about the fact that Mumtaz accused had visited his house as a guest on 5.6.2007 and during his stay he drank some of the milk that he served to him and rest was taken by him (P.W.5) as a result of which he fell unconscious. He stated to have been medically examined for having been administered some intoxicant be the accused but there existed no such medical evidence to prove this fact. He contended that Mumtaz accused was his phuphizad and he talked with him till 2.00 a.m. And said it again that they talked till 11/12.00 midnight. If they both chit-chatted till midnight, it only meant that he was within his senses by then.
11. It may or may not be so that some intoxicating material had been administered to Mst.Iqbal Bibi (P.W.4) and Amanullah (P.W.5) but nothing is available on the record in terms of medical evidence to prove this allegation. The accumulative effect of the testimonies of Mst.Iqbal Bibi (P.W.4), her brother Aman Ullah (P.W.5), her father Imam Bakhsh (complainant/ P.W.2) and her cousin Zulfilar (P.W.3) is that they have not spoken the truth nor could they render it a case of forcible act of coitus against the appellant. Their testimonies being devoid of truth and believability are rejected forthwith.
12. The medical evidence, as tendered by Dr.Muhammad A fzal (P.W.1) merely tells that Muhammad Mumtaz accused was a potent person in terms of performing a sexual act and his MLR (Exh.PA) verified this fact. It is Dr. Rehana Rashid WMO (P.W.10), who medically examined Mst. Iqbal Bibi (P.W.4) and through MLR (Exh.PG) she found that the examinee admitted two fingers easily with hymen-tears healed old. On receipt of the DNA-profile report (Exh.PH), she opined that "no male has committed intercourse with the victim." The requisite DNA-report (Exh.PH) entailed the conclusion that "the vaginal swabs of victim lqbal Bibi (item 1.0) did not generate any male DNA profile." None of the male doctor (P.W.1) and lady doctor (P.W.10) examined Amanullah (P.W.5) or Mst.Iqbal Bibi (P.W.4) in terms of locating the probability, if they had been administered some intoxicating material or not.' The medical evidence, as referred to above, does not lend any corroboration to the prosecution case, rather concluding deposition of the woman medical officer (P.W.10) had sealed its fate, when she observed that the female examinee had not been subjected to sexual intercourse by any.
13. Insofar as the abscondence of the appellant for about two years is concerned, it comes from the mouth of Fazal Elahi 1262/C (P.W.7). Though he has not been cross-examined by the defence, yet his deposition as to non-bailable warrant of arrest (Exh.PC), the proclamation (Exh.PD) and the reports thereon (Exh. PC/1 and Exh. PD/1) hardly advanced the prosecution case in any manner. The ocular account inclusive of statement of the alleged victim Mst.Iqbal Bibi (P.W.4), having already been rejected and the medical evidence being unreliable, to further dilate upon abscondence of the appellant would do no good to the prosecution, rather would it more be an exercise in futility.
14. The defence plea taken by the accused in his statement under Section 342, Cr.P.C. Is as absurd and unbelievable as there could be any in this perspective.
' The prosecution case has already been rejected in the preceding paragraphs hereof, hence, searching something meaningful or otherwise in the defence plea would not be advisable. It, however, remains a case of denial on the part of the accused.
15. The crux of the discussion made hereinabove is that prosecution has failed to establish charge against the accused beyond any reasonable shadow of doubt. The impugned judgment contains as many fallacies and improbabilities as may be found from the prosecution evidence itself. The verdict of guilt of the appellant as given by the learned trial Court, is not sustainable by any stretch of imagination. Therefore, this pronouncement is annulled. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is present on ball, for, his sentence had been suspended by this Court on 6.11.2012. His bail bonds are cancelled and surety discharged. The appeal stands accepted.