MANZOOR AHMAD MALIK, C.J.---Nadeem Bhatti alias Sanni (appellant) was tried by the learned Addl. Sessions Judge, Shakargarh District Narowal in case FIR No.413 dated 09.08.2011, offence under sections 365-B, P.P.C. (Sections 376 and 380, P.P.C. Were added later on) registered at Police Station Shakargarh District Narowal for the abduction of Mst. Asma Bibi daughter of the complainant, thereafter committing rape with her and commission of theft of cash and gold ornaments. Vide judgment dated 09.04.2013 passed by the learned Addl. Sessions Judge, Shakargarh District Narowal, the appellant has been convicted and sentenced as under:- "18. ...So he is convicted and sentenced under section 365-8 with life imprisonment along with fine of Rs.1,00,000/-. In case of default in payment of fine the convicted/offender shall further undergo one year simple imprisonment. He is also convicted and sentenced under section 376, P.P.C. For the commission of rape with 10 years rigorous imprisonment along with fine of Rs.50,000/-. In case of default of payment of fine he will further undergo six ' months' simple imprisonment. The convicted/offender is also ordered to pay Rs.1,00,000/- as compensation to the victim under section 544-A, Cr.P.C. And in case of non-payment of compensation the convicted/offender shall further undergo six months' simple imprisonment. The convicted/offender is also convicted and sentenced under section 380, P.P.C. With four years' rigorous imprisonment along with fine of Rs.25,000/-. In case of non-payment of fine he shall further undergo three months simple imprisonment. The benefit of section 382-B of Cr.P.C. Is also extended to the convicted/offender.
Under section 35 of Cr.P.C. All the sentences shall run concurrently..."
Assailing the above convictions and sentences, Nadeem Bhatti alias Sanni (appellant) has filed the appeal in hand.
2. Precisely, facts of the case, as contained in the FIR (Ex.PC/1) registered on the written application (Ex.PC) moved by Faryad Masih, complainant (PW.5) are that he (complainant) was resident of Mohallah Lalpura, Shakargarh. 9/10 days prior to the occurrence, Nadeem Bhatti alias Sanni (appellant) had come to the house of complainant as guest. On 06.08,2011 at around 10,00 a.m. The complainant party had gone to the house of his neighbour in connection with an engagement ceremony and Nadeem Bhatti alias Sanni (appellant) was alone in the house. The appellant while taking the advantage of aloneness broke the lock of iron box and committed theft of Rs.1,10,000/- (rupees one lakh and ten thousands only) and gold ornaments weighing 8-1/2 tola, put therein by the complainant for the marriage of his son. When daughter of the complainant namely Asma Bibi aged about 13 years came to the house after doing household duty in the house of someone, the appellant enticed her away along with Rs.1,10,000/- (rupees one lakh and ten thousands only) and gold ornaments weighing 81/2 tola. It was further alleged in the FIR that Mushtaq Masih son of Mohan Masih and Faisal Masih and Faryad Masih saw Nadeem Bhatti alias Sanni (appellant) and Asma Bibi daughter of the complainant going together in the mohallah. When daughter of the complainant did not return home after a short while, the complainant party started her search and Mushtaq Masih and Faisal Masih told them that they saw Nadeem 13hatti alias Sanni (appellant) while he was taking away daughter of the complainant. The complainant is of the firm view that the appellant had abducted his daughter. It was alleged in the FIR that Mushtaq Masih and Faisal Masih had witnessed the occurrence.
3. The appellant was indicted by the learned trial court under sections 365-B, 376 and 380, P.P.C.
And after conclusion of the trial, he was convicted and sentenced as mentioned in para 1 supra.
Hence this appeal.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that according to the contents of FIR, Mst. Ksma Bibi (PW.6) daughter of the complainant was allegedly abducted on 06.08.2011 at 10:00 a.m. Whereas the matter was reported to the Police on 09.08.2011 at 10:45 a.m. Vide rappat No.11 i.e. With the delay of three days from its happening without there being any plausible explanation; that though 06.08.2011 is written as date of submission of the application (Ex.PC) for registration of the FIR but Muhammad Afzal, ASI (PW.7) who chalked out the formal FIR stated in his examination-in-chief that on 09.08.2011, the complainant moved an application for registration of the FIR and he was not declared hostile by the prosecution; that the complainant is not an eyewitness of the alleged theft or abduction as he himself mentioned in the application (Ex. PC) which became basis for the registration of FIR (Ex.PC/1) that on the day of occurrence, they had gone to the house of his neighbour on an engagement ceremony whereas before the learned trial court while appearing as PW.5 the complainant stated in his examination-in-chief that he was on his duty and his wife proceeded to the house of his neighbour to participate in an engagement ceremony; that the complainant further stated in cross-examination that Mushtaq Masih and Faisal Masih disclosed him about the abduction of his daughter by the appellant; that said Mushtaq Masih and Faisal Masih who allegedly saw the appellant while taking away Mst. Asma Bibi were not produced by the prosecution and given up as being unnecessary, therefore, adverse inference in view of Article 129(g) of Qanun-eShahadat Order, 1984, that had the said witnesses been produced before the learned trial court, they would not have supported the prosecution case should fairly be drawn against the prosecution. Further contends that the only witness of the alleged theft, abduction and rape is Mst. Asma Bibi, victim (PW.6) but her statement is not confidence inspiring as she stated before the learned trial court in her examinationin-chief that the accused (appellant) asked her to go to bazaar but she did not accept his offer and she accompanied the accused; that the story narrated by Mst. Asma Bibi, alleged victim (PW.6) is improbable because she stated before the learned trial court during cross-examination that she was taken away in a black coloured car on gunpoint but no car or gun was recovered at the instance of the appellant; that she further stated that the appellant kept her in his own house and the house of his paternal aunt for six days but surprisingly, she did not tell the story of abduction and rape to the family members available at the houses; that as per declaration of the complainant (Ex.DA), Mst. Asma Bibi, victim was already with the complainant on 08.08.2011 i.e. One day prior to the lodging of FIR, therefore, the story of alleged recovery of Mst. Asma Bibi at the instance of the appellant from the house of his uncle situated at Naseer Abad, Lahore was a mere fabrication and the Investigating Officer frankly conceded so during his cross-examination; that the statement of Mst. Asma Bibi, alleged victim recorded by the learned Magistrate under section 164, Cr.P.C. Has not been exhibited during trial; that it is the case of prosecution before the learned trial court in the statement of Mst. Asma Bibi, alleged victim (PW.6) that at the time of alleged abduction, the appellant was armed with pistol but no such pistol was recovered at the instance of the appellant during investigation; that the charge under section 380, P.P.C. Has also not been proved against the appellant as no cash or gold ornaments were recovered at the instance of the appellant during the course of investigation; that the medical evidence also does not advance the case of prosecution as Dr. Sadia Naroon (PW.2) who medically examined Mst. Asma Bibi, the alleged victim observed no tear laceration bruises swelling and noted hymen rapture with old healed margin; that the WMO (PW.2) has further noted in the medico-legal examination certificate (Ex.PA) that she (Mst. Asma Bibi) has experienced sexual intercourse but no sign of resistance were present; that moreover, the clothes of the victim which she was wearing at the time of alleged incident were not taken into possession during the course of investigation nor the same were produced at the time of her medical examination, as is admitted by the women medical officer in her examination-in-chief; that viewing from all angels, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. None is present on behalf of the complainant despite issuance of notice, therefore, this appeal is being decided aftir hearing learned Defence counsel for the appellant and learned DDPP for the State.
6. Learned Deputy District Public Prosecutor for the State vehemently opposes this appeal on the grounds that there is no delay in reporting the crime to the police as the complainant reasonably explained before the learned trial court in cross-examination that he moved the application (Ex.PC) to the police on 06.08.2011 at 4.00/5.00 p.m. Therefore, the delay, if any, in reporting the crime is on the part of the police and not the complainant; that the appellant is nominated in the FIR with specific role; that the offence alleged against the appellant is not only serious but heinous as well; that besides the complainant, the prosecution case is corroborated by the statement of Mst. Asma Bibi, the victim, who is the star witness qua theft of cash, gold ornaments, her abduction and rape, who fully supported the prosecution case before the learned trial court; that Mst.Asma Bibi, victim got recorded her statement before the learned Magistrate, Shakargarh under section 164, Cr.P.C.
On 17.08.2011 wherein she fully implicated the appellant; that the appellant was found fully involved during the course of investigation ; that no adverse inference can be drawn against the prosecution by the mere non-production of Mushtaq Masih and Faisal Masih (since given up) as it is the quality of evidence and not its quantity, which settles the guilt or innocence of an accused person in a criminal case and even otherwise it is the prerogative of the prosecution to produce as many witnesses as it thinks appropriate; that the version of the appellant recorded under section 342, Cr.P.C. Is an afterthought; that the prosecution has fully proved its case against the appellant and there is no merit in this appeal.
7. I have heard learned counsel for the appellant as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
8. For the following reasons, the case of prosecution is doubtful in nature:-
(a) According to contents of FIR (Ex.PC/1), Mst. Asma Bibi (PW.6) daughter of the complainant was allegedly abducted on 06.08.2011 at 10:00 a.m. Whereas according to the relevant column of the FIR, meant for the date and time of report, the matter was reported to the Police on 09.08.2011 at 10:45 a.m. Vide rappat No.11 i.e. With the delay of three days from its happening without there being any plausible explanation. It has been noted that the date mentioned on- the application (Ex.PC) moved for registration of the FIR is 06.08.2011 but Muhammad Afzal, ASI (PW.7) who chalked out the formal FIR stated before the learned trial court during his examination-in-chief that on 09.08.2011, the complainant moved an application for registration of the FIR and he was not declared hostile by the prosecution. Therefore, I. Am of the view that the FIR was not lodged with due promptitude.
(b) The complainant, as per his own showing, is not an eye-witness of the alleged theft or abduction because he himself stated in the application (Ex.PC) which became basis for registration of the FIR (Ex.PC/1) that on the day of occurrence, they had gone to the house of his neighbour on an engagement ceremony whereas before the learned trial court while appearing as PW.5, the complainant stated in his examination-in-chief that he was on his duty and his wife proceeded to the house of his neighbour to participate in an engagement ceremony. The complainant further stated in his cross-examination that Mushtaq Masih and Faisal Masih told him about the abduction of his daughter by the appellant, therefore, it can safely be concluded that the complainant was not present at the time of alleged theft or abduction of his daughter and as such, his statement is not much relevant.
(c) It is the case of prosecution that Mushtaq Masih and Faisal Masih (since given up) have allegedly saw the appellant while taking away Mst. Asma Bibi but both the said witnesses were not produced before the learned trial court and given up as being unnecessary, therefore, adverse inference in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, that had the said witnesses been produced before the learned trial court, they would not have supported the prosecution case, can safely be drawn against the prosecution.
(d) The only relevant witness of the alleged theft, abduction and rape is Mst. Asma Bibi, victim (PW.6) but her statement is also not confidence inspiring as she stated before the learned trial court in her examination-in-chief that the accused (appellant) asked her to go to bazaar but she did not accept his offer and accompanied the accused. Even otherwise, the story narrated by Mst.
Asma Bibi, alleged victim (PW.6) is improbable because she stated in her cross-examination that the appellant kept her in his own house and the house of his paternal aunt for six days but surprisingly, she did not tell the story of her abduction and rape to the family members available at the houses. The relevant portion of her cross-examination is reproduced as under:- "...Accused kept me for six days in his own house and house of his paternal aunt. The accused family members were available at his house. Similarly the family members of paternal aunt of the accused were also available at their house. Accused was not used to go for earn his livelihood.
During the stay at the house of accused I was not used to talk with the parents and other family members of the accused of my own accord. Similar was the case at the house of paternal aunt of the accused. I did not narrate the story of abduction and rape to them, 'voluntarily stated they already knew this fact..."
Mst. Asma Bibi, alleged victim (PW.6) further stated during her cross-examination that she was taken away in a black coloured car on gunpoint but no car or gun was recovered at the instance of the appellant. It was also the case of prosecution before the learned trial court, in the statement of Mst. Asma Bibi, alleged victim (PW.6) that at the time of alleged abduction, the appellant was armed with pistol but no such pistol was recovered from him during investigation. Therefore, in the circumstances of the case, it is not safe to rely on the statement of Mst. Asma Bibi, alleged victim (PW.6).
(e) The alleged victim namely Mst. Asma Bibi was not recovered at the instance of the appellant as claimed by the prosecution because of the reasons that as per declaration of the complainant (Ex.DA), she was already with the complainant on 08.08.2011 i.e. One day prior to the lodging of FIR, therefore, the story of recovery of Mst. Asma Bibi allegedly at the instance of the appellant from the house of his uncle situated at Naseer Abad, Lahore appears to be a fabrication. The Investigating Officer frankly conceded so during his cross-examination. Relevant portion of cross-examination of Muhammad Hussain, S.I./I.O. (PW.8) is reproduced hereunder:- "...It is correct that on 08.8.2011 the victim of this case Asma Bibi was delivered to the complainant of this case by Hafiz Sajjad Ahmed, SI. The delivery of victim on 08.8.2011 was in my knowledge. The writing which was drafted by Hafiz Sajjad, SI was gone through by me during investigation. It is correct that in the said writing it was maintained by the complainant that he will not torture the Asma Bibi, victim or he will not harass her. It is correct that victim of this case was recovered on 08.8.2011 prior to the registration of this case. It is correct that to create or to fabricate a false evidence is an offence as per Pakistan Penal Code. It is correct that I fabricate evidence against Nadeem Bhatti alias Sani regarding the recovery of victim Asma from Naseer Abad. Voluntarily stated that since the accused was involved in this case that is why I fabricated false evidence..."
(f) There is another aspect of the case that the appellant has also been convicted/sentenced by the learned trial court under section 380, P.P,C. There is no denying of the fact that the Investigating Officer did not effect any recovery of cash or gold ornaments at the instance of the appellant during the course of investigation, therefore, I am of the considered view that the prosecution has not been able to prove the charge under section 380, P.P.C.
(g) So far as medical evidence is concerned, the same does not advance the case of prosecution as Dr. Sadia Naroon (PW.2) who medically examined Mst. Asma Bibi, the alleged victim observed no tear laceration bruises swelling and noted hymen rapture with old healed margin. The said women medical officer (PW.2) has further noted in the medico-legal examination certificate (Ex.PA) that she (Mst. Asma Bibi) has experienced sexual intercourse but no sign of resistance were present.
Moreover, the medical evidence is a supportive piece of evidence and relevant only if the primary evidence i.e. Ocular account inspires confidence which is not the situation in this case.
(h) There is another circumstance which creates dent in the prosecution case. The clothes of the victim which she was wearing at the time of alleged incident were not taken into possession by the Investigating Officer during the course of investigation nor the same were produced at the time of her medical examination and it was stated by the women medical officer in her examination-in- chief that Mst. Asma Bibi changed clothes worn at that time and not brought with her.
9. Now I take up the version of the appellant disclosed by him in his statement recorded under section 342, Code of Criminal Procedure and put to the alleged abductee during her cross- examination. Since the prosecution case is doubtful in nature, therefore, there is no need to discuss the defence version, which even otherwise is exculpatory in nature.
10. For the above said reasons, the case of prosecution against Nadeem Bhatti alias Sanni (appellant) is doubtful in nature, therefore, the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule . Of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
11. In view of the above, this appeal is allowed and the convictions and sentences awarded to the appellant vide judgment dated 09.04.2013 passed by the learned Additional Sessions Judge, Shakargarh District Narowal, is set aside. The appellant is acquitted of the charges. He is in jail and shall be released forthwith if not required to be detained in any other case.