RAJA SAEED AKRAM KHAN, J. --- The above-titled appeals arise out of the judgment of the Shariat Court dated 18.3.2014, whereby while partly accepting the appeal filed by the convict, appellant dismissed the appeal filed by the complainant. Since both the appeals arise out of the same judgment of the Shariat Court, therefore, these are being disposed of by this single judgment.
2. Brief facts forming the. background of the instant appeals are that the complainant Muhammad Rafique lodged an F.I.R. at Police Station Kahuta on 1.1.2009, stating therein, that he is the resident of Kahuta & his daughter, Mst. Nazia Rafique is an employee of Civil Hospital Kahuta and serving Lady Health Worker. On 1.1.2009 at about 11:00 a.m., While coming back from the Hospital she was waylaid by Aurangzeb, convict-appellant near the Rest House. The convict-appellant put a handkerchief over her mouth and took her away to a neares cave for committing Zina-bil-Jabar. It has further alleged in the F.I.R. that the convict is a habitual offender that is why the people present at the place of occurrence while feeling sense of fear ran away. The complainant alleged that the whole occurrence was disclosed to him by his daughter when she came at home in an injured condition.
3. On this report, a case under Sections 337, 341 354-A, APC and 6/10, AJ&K Offence of Zina Enforcement of Hudood) Act, 1974 was registered against the convict-appellant at the Police Station Kahuta on 1.1.2009. After registration of the case, the convict-appellant was apprehended by the Police. After completion of investigation a challan was presented in the District Criminal Court Haveli, Kahuta against the convict-appellant. After presentation of challan, the convict- appellant was examined under Section 242, Cr.P.C., wherein, he denied the allegations levelled against him and opted for the trial of the case. The Trial Court directed the prosecution to produce evidence in support of its case. The prosecution produced twenty-one (21) witnesses in support of its case. After recording the prosecution evidence, the convict-appellant was examined under Section 342, Cr.P.C. wherein, he refuted the evidence and all the allegations levelled against him and claimed to be innocent. The Trial Court vide its judgment dated 20.8.2010, convicted the accused, Aurangzeb and awarded him the sentence of one month's simple imprisonment under Section 341, APC, life imprisonment alongwith fine of I.e, 10,000/- under Section 354-A, APC and one year's imprisonment alongwith fine of I.e, 5000/- as daman under Section 337-F-1, APC. The Trial Court while exercising powers under Section 237, Cr.P.C. convicted and sentenced the accused to 5 years' imprisonment under Section 18, ZHA instead of Section 10, ZHA. It was ordered by the Trial Court that all the sentences shall run concurrently. The Trial. Court also extended the benefit of Section 382--B, Cr:P.C. to the convict-appellant. Against the aforesaid judgment of the District Criminal Court, Haveli, Kahuta, two appeals were filed before the Shariat Court one by Muhammad Rafique, complainant, for enhancement of the sentences awarded to the convict-appellant; and the other by the convict-appellant for his acquittal. The learned Shariat Court through the impugned consolidated judgment dated 18.3.2014, while partly accepting the appeal filed by the convict-appellant set aside the sentences awarded to him under Section 337-F-1 and 341, APC, and acquitted him of the charges, whereas, the appeal filed by the complainant has been dismissed.
Hence, these appeals.
4. Sardar Kararn Dad Khan, Advocate, the learned counsel for the convict-appellant, submitted that the Courts below have not appreciated the evidence in a legal manner as the case of the prosecution is full of doubts. He added that it is recognized 'phenomena of law that the benefit of doubt which arises in a criminal case must be extended to the accused. He strongly argued that the statements of prosecution witnesses are contradictory which cannot be safely relied. He contended that at the time of lodging the FIR, the convict-appellant was not charged with the offence under Section 18, ZHA but the Courts below while passing the impugned judgments ignored this important aspect of the case. He further contended that the Courts below have also not considered this aspect of the case that the prosecution evidence has been recorded without framing the charge against the convict-appellant in the offence under Section 242, Cr.P.C. He further argued that the explanation furnished for lodging the F.I.R. after a delay of 9 & half hour, is not satisfactory. The distance between the Police Station and the place of occurrence is only of 1/2 furlong, therefore, lodging of F.I.R. after a considerable time itself shows that the same has been lodged after due deliberation. He further contended that the medical report also negates the prosecution story as the opinion of the Lady Doctor is not corroborated by the version taken by the prosecution. He argued that the convict-appellant was falsely implicated in the case, therefore, in this scenario; there was no justification to award the sentence to the convict-appellant. He argued that there are two medical reports on the record and both are contradictory in nature. No sign of violence, sign of dragging or injury has been shown in the reports, which clearly indicates the fact that the convict/appellant has been enrobed falsely in the case. He argued that the swab was not sent to the Chemical Examination Laboratory and in absence of the Chemical Examiner's report it cannot be said that the offence of 'zina' was committed. He averred that the investigation was conducted partially and dishonestly and no identification parade was held. He argued that if the case is not proved under Section 354-A, A.P.C., then no conviction can be recorded under Section 18, ZHA. The learned counsel has relied upon the judgments reported as Nawaz alias Najee V. The State and another [2014 P.Cr.LJ 69], Mst. Shazia and others v. The State [2013 P.Cr.LJ. 826], Muhammad Umar v. The State [2011 P.Cr.LJ. 1855] and Tariq Pervez v. The State [1995 SCM.R 1345].
5. On the other hand, Ch. Shoukat Aziz, the learned Additional Advocate-General, has strongly supported the judgment passed by the learned Shariat Court, while submitting that the Courts below after appreciating the evidence brought on record in a legal manner rightly came to the conclusion that the offence under Section 18, ZHA has been proved. The medical report is fully corroborated by the statements of the prosecution witnesses. The convict/appellant was arrested on the same day. The recovery of clothes stained with human blood is a strong piece of evidence and the report of chemical examiner is also positive. In continuation of the arguments he submitted that the convict-appellant was duly nominated in the FIR, therefore, the question of identification parade does not arise. The injuries sustained by the victim on her buttocks and the injuries caused at the knees of the convict-appellant, fully support the prosecution story and this portion of the evidence remained un-rebutted by the convict-appellant. He has relied upon a judgment reported as Ghulam Haider v. The State [1983 SCM R 842].
6. The appeal filed on behalf of the complainant was filed by Mr. Mansoor Pervaiz Khan, Advocate, who was elevated as Advocate-General during the pendency of the appeal. The complainant submitted that he has no source to engage a counsel, therefore, he made a request to decide the case according to the record made available.
7.We have heard the arguments of the learned counsel for the convict-appellant and the learned Additional Advocate-General and also gone through the record made available.
8. The alleged occurrence was stated to be committed on 1.1.2009, at 11.00 a.m., whereas, F.I.R. was lodged on the same day at 4:30 p.m., by Muhammad Rafique, complainant, the real father of the victim, Mst. Nazia Rafique, who implicated the convict-appellant in the offence. The argument the counsel for the convict-appellant is that the F.I.R. was lodged after a delay of more than 9 and a half hours, which itself shows that the convict-appellant was implicated in the occurrence after deliberation. The delay in lodging F.I.R. is fatal to the prosecution. To meet the argument, it may be stated that although, the delay always plays a very important role in the criminal cases, however, in the case of 'zina', the same cannot be treated a fatal. The F.I.R. was registered on the same day and it is stated in the F.I.R. that the victim is admitted is the District Headquarter Hospital. In this state of affairs, we are not inclined to appreciate the argument addressed by the counsel for the convict-appellant.
9. While discussing the ocular account furnished by the prosecution, it may be stated that the star witness of the case is Mst. Nazia Rafique, the victim. It will be advantageous to reproduce here the relevant portion of her statement, which reads as under:-- {{URDU TEXT}} After going going through the above-said statement, it appears that she has not mentioned the name of the accused who committed the 'zina' with her and even she did not state about the persons, who later on came at the scene of occurrence to rescue and escort her at her home.
Moreover, the surprising aspect of the case is that the complainant, the father of the victim, who is not an eye-witness of the case, while narrating the story, levelled the allegation against the convict-appellant and stated that the convict committed the offence of 'zina' with her daughter.
Whereas, the victim, while making the statement before the Court has not uttered even a single word about any person, who committed the offence of 'zina' with her. It is not clear that what was the reason behind this which stopped her to bring out the real culprit; who committed the offence of 'zina' with her. There is no consistency between the statements of the complainant and the victim. Moreover, the place of occurrence is near to the Rest House, Kahuta, which is a thoroughfare. It is unbelievable that on hue and cry and in presence of some persons, the convict- appellant while dragging the victim forcibly took her into a cave where he committed the 'zina' with her and nobody came forward to rescue her. All the afore-mentioned points of the story do not appeal to a prudent mind which on the' face of it appears to be improbable. 'It is also spelt out from the record that in the FIR, two unknown persons are alleged, who facilitated the victim to reach home. While appearing before the Court, the complainant stated that the names of the said persons are Hafeez Quershi and Muhammad Naeem Khan, respectively. He also stated that Muhammad Naeem Khan was known to him before the occurrence. What was the reason that the complainant did not mention the names of those persons in the FIR. It also appears from the statement of the complainant that even the convict-appellant was not stranger to the family of the complainant and his family has the good terms with the accused. In spite of the fact that the convict-appellant was not stranger to the victim but the victim did not mention his name in her statement recorded in the Court.
10. Another witness of the prosecution is Muhammad Naeem Khan and according to his statement, on hue and cry, he entered the Rest House. He saw that the convict-appellant was (sic) trouser were tom out and she was naked, therefore, the accused took the victim into the cave and committed 'zina'. The relevant portion of the statement of Muhammad Naeem Khan is as under:-- {{URDU TEXT}} The statement of Muhammad Naeem Khan is doubtful. It is Unbelievable that a person is dragging a lady in presence of two persons and no one came forward to rescue her despite the fact there is no allegation that the convict-appellant was armed with some weapon. Moreover, the occurrence took place in a broad daylight and the Rest House is not situated in the deserted area but no one estopped the accused not to commit the offence. The statements of the other witnesses are also full of contradictions and seem to be tutored.
10. While adverting to the medicalevidence, we have gone through the record. The victim was firstly examined on 2.1.2009 and the Lady doctor has opined as under:--- "1. Age about 20-25 year,
2. She is not virgin (Hymen ruptured old).
3. No recent sign of intercourse seen."
Feeling dissatisfied by the report of Lady Doctor, the complainant moved an application for examination of the victim through Medical Board. The Medical Board was constituted who examined the victim on 18th February, 2009. The opinion of Medical Board is as under:---
1. Exact time of zina could not be given as 1 month and 19 days has passed and no spermatozoa whether dead or alive could be alighted at this time.
2. No mark of violence whether fresh or old seen on her body."
From juxtapose examination of the opinion or Lady Doctor and Medical Board, it appears that on one hand, the Medical Board submitted its report that there was no mark of violence and at the same time, recorded the injuries in the following terms:--- "Injuries: Lt. hip 02 Bruises blue in colour irregular margin;
1. 3 cm x 1.5 cm size
2. 2 cm x 1 cm Rt hip, 3 Bruises blue in colour present on different parts of hip of different size.
1. 3 cm x 1 .5 cm irregular margin
2. 2 cm x 1 cm
3. 1 cm x 1 cm"
In such-like situation, these medical reports cannot be given preference. Even otherwise, the medical evidence is of the corroborative nature. When the ocular evidence is disbelieved, it loses its evidentially value. As we are of the view that there are serious contradictions in the ocular account furnished by the prosecution, especially the statement of the victim, therefore, the medical evidence cannot be believed.
11.As we have observed earlier that the victim has not implicated the convict-appellant in the offence in her statement and only submitted that an accused committed the 'zinal with her. No reason came on the record from which it could be ascertained that what were the circumstances, which forced her not to state the name of any person. In our view the manner of occurrence narrated by the complainant is not true and also not supported by the evidence. It does not appeal to a prudent mind in spite of the fact that someone has seen the accused while taking a lady into a cave and remained busy in commission of 'zina' but nobody came forward to rescue her as the convict-appellant was not armed with weapon.
12.Another serious flaw which has been pointed out by the learned counsel for the convict- appellant is that the convict was not charged with under Section 18, ZHA, therefore, no conviction can be recorded in absence of such charge. To appreciate the argument, we have examined the charge framed by the Trial Court under Section 242, Cr.P.C. available at page 69 of the Trial Court's file, which is reproduced as under:-- {{URDU TEXT}} Whereas, the statement recorded under Section 342, Cr.P.C. is reproduced as under:-- {{URDU TEXT}} After going through the above-said statements, it reflects that the charge was framed in the offences under Sections 341, 337, 354-A, APC & 6/10, ZHA and not in the offence under Section 18, ZHA. In our estimation, after emerging out this situation, the proper course was to remand the case to the Trial Court for framing the charge under the relevant provision but as we have discussed earlier in the preceding para that the statements of the Prosecution witnesses are inconsistent with each other and full of contradictions, therefore, we are of the view that the prosecution story is doubtful and the remand of the case to the Trial Court for framing the charge would not serve any useful purpose. The convict-appellant has served the sentence more than 3 years behind the bars, therefore, while exercising the inherent jurisdiction, we intend to decide these appeals, while taking into account the effect of non-framing of the charge in the offence under Section 18, ZHA and on the basis of the evidence available on record.
13.We have observed in the preceding para that the charge in the offence under ,Section 18, ZHA was not framed. The object of framing the charge is to provide an opportunity to the accused to state anything in his defence. In explanation of charge, the accused is at liberty to take up any plea which he likes, meaning thereby that the non-framing of charge amounts to deprive the accused of to take the plea of defence. As we have come to the conclusion that the prosecution case is not 'free from doubts and the statements of the prosecution witnesses are full of contradictions, which cannot be treated as minor, the story established by the prosecution is not believable. It is settled phenomena of law that the benefit of every possible doubt should be extended in favour of the accused. Even a slightest doubt is sufficient to acquit the accused, whereas, it is a case of a number of doubts. Section 242, Cr.P.C., is mandatory provision of law and its non-compliance has rendered the whole proceedings as nullity and the departure from the mandatory provision of procedure occasioned prejudice and injustice to the accused. The omission would not be curable under Section 537, Cr.P.C., as laid down in a case reported as The State v. Muhammad Rasheed and another [2008 P.Cr.LJ. 247], in which it has been observed as under:--- "A careful perusal of the procedure provided by Chapter XX of Cr.P.C.: alongwith relevant Sections would show that framing of charge means commencement of the trial on an accused and without framing of charge the recording of evidence and the other proceedings are nullity in the eye of law.
Section 242, Cr.P.C. is a mandatory provision which provides that charge shall be framed and the particulars of alleged offence had to be explained to accused so that he would be able to know about the charge against him which he had to face during the trial to defend himself. Thus, the non-framing of the charge is not remediable under Section 537, Cr.P.C."
Even, if for the sake of arguments, it is assumed that the accused is found guilty of the offence under Section 18, ZHA and after recording the prosecution evidence, he has rightly been convicted under the said Section but the fact remains that the accused was not examined under Section 342, Cr.P.C. in the said offence. This leads to the conclusion that the accused was not given the opportunity to explain anything in his defence, 'in which he was, going to be convicted.
14.So far as the argument of the learned counsel for the convict-appellant that non-framing of charge under a specific offence vitiates the whole proceedings is concerned, is not convincing in nature. It is settled law that if the Court on the basis of evidence brought on the record comes to the conclusion that the accused has committed the alleged offence, the Court is fully empowered to convict the accused. However, we do not intend to dilate upon the point because the offence brought on record is insufficient to convict the appellant, 15.In the light of the above discussion, we are of the view that the evidence produced by the prosecution in support of its version, is not convincing in nature and the ocular account is not confidence inspiring, therefore, the recovery of bangles and other articles have lost its value in the eye of law as all these articles can easily _be managed.
Reliance can be placed on an unreported case of this Court titled Muhammad Basha rat v. Syed Saqib Shah & others (Criminal Appeal No, 7 of 2007, decided on 2.10.2012), wherein it has been held as under:--- 11.Another important evidence through which the prosecution tried to link the chains of commission of offence is the recovery of wrist watch. No description of any sort with regard to wrist watch was brought on the record by any of the PWs. Even, the same has not been mentioned in the F.I.R. that at the time of occurrences he was wearing any sort of wrist watch and if he was wearing so what was its description. Such-like wrist watch could be purchased from the bazaar, therefore, such piece of evidence seems to be invented later on to strengthen the case of the prosecution."
In the light of what has been stated above, the appeal filed by the convict-appellant is accepted and he is acquitted of the Charge. While attending the grounds taken in the appeal filed by the complainant, it may be observed that as we have disbelieved the evidence while observing that the case of the prosecution is doubtful, therefore, the question of awarding the punishment under Section 354-A, A.P.C., does not arise. Even otherwise, the learned Shariat Court has rightly appreciated the evidence in this regard, which does not warrant any interference by this Court, Resultantly, the appeal filed by the complainant having no force, stands dismissed.