' Naseer Ahmad (appellant) was tried by the learned Additional Sessions Judge, Sheikhupura in case FIR No, 1154 dated 23.11.2007, offences under Sections 376 and 511, PPC, registered at Police Station Saddar Sheikhupura District Sheikhupura for attempting to commit rape with Safia Bibi sister of the complainant. Vide judgment dated 08.06.2009 passed by the learned Additional Sessions Judge, Sheikhupura, Naseer Ahmad (appellant) has been convicted under Sections 376/511, PPC and sentenced to rigorous imprisonment for five years with fine of Rs, 10,000/- (rupees ten thousand only) and in default whereof, to further undergo six months simple imprisonment.
Benefit of Section 382-B, Cr.P.C. Has been extended to the appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Precisely, facts of the case, as contained in the FIR (Ex.PA/1) registered on the written application.
(Ex.PA) of Muhammad Aslam, complainant (PW-1) are that he was employed in Shaheen Cotton Mills and resident of Mohallah Nadeem Kot, Tubewell No, 5, Tehsil and District Sheikhupura. On 16.11.2007 at around 9.00/10.00 a.m. His wife namely Munazza and real sister Safia Bibi were alone in the house and the complainant was on his duty. The appellant armed with pistol forcibly entered the house of complainant, went to the room of Safia Bibi sister of the complainant and attempted to commit zina bil juhr with her. When sister of the complainant made resistance, the appellant by show of pistol got her scared and broke the string of her shalwar. The appellant tore her clothes and made her semi naked. Safia Bibi raised hue and cry, whereupon wife of complainant, Abdul Majeed son of Sarfraz and Tariq Mehmood son of Muhammad Ashraf attracted to the spot and witnessed the occurrence. On arrival of witnesses and inhabitants of Mohallah, the appellant decamped from the spot. The witnesses and sister of the complainant narrated the occurrence to the complainant.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant was summoned by the learned trial Court to face the trial and after fulfillment of required formalities, he was charged sheeted under Sections 376 and 511, PPC on 28.02.2008. After prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 15.04.2009, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant replied as under: ' "The case is false and fabricated, brought by the complainant Muhammad Aslam and his sister Safia Bibi on the grudge developed due to demanding outstanding amount from her and also from her mother. Moreover, there was a dispute on a Nokia Mobile phone set, because of these disputes I have been maliciously en roped. No independent witness has come forward to give evidence against me. The complainant and the victim, both are interested 'witnesses and Munazza Bibi, wife of the complainant, has given evidence due to close relationship with the victim and her testimony is the result of malice and personal grudge."
' The appellant neither opted to appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor did he produce any defense evidence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. 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 as per contents of the FIR, the alleged incident took place on 16.11.2007 at\9.00 a.m. Whereas the matter was reported to the police on 23.11.2007 at about 7.30 p.m. i.e, after the delay of about seven days without there being any satisfactory explanation and the explanation offered by the complainant before the learned trial Court does not appeal to mind; that none of the respectable who intervened and assured the complainant that the accused will pray and seek pardon, was produced before the learned trial Court; that the complainant is not an eye-witness of the occurrence as he himself mentioned in the application (Ex.PA) which became basis for the registration of FIR (Ex.PA/1) that on his arrival, the witnesses and his sister narrated the whole occurrence; that Mst. Safia Bibi, the alleged victim of this case while appearing before the learned trial Court as PW-3 made dishonest improvements, she was duly confronted with her previous statement (Ex.DA) and the improvements were brought on the record and as such, her statement cannot be relied upon; that it is in the statement of the complainant that if someone enters the room of victim, he/she can be seen by the person sitting in the Courtyard, therefore, the presence of Mst. Munazza Bibi (PW-3) at the place of occurrence is doubtful for the reason that it was case of the prosecution that at the time of occurrence, she was washing utensils in the Courtyard of the house and meanwhile, the appellant came, went into the room of Mst. Safia Bibi and attempted to commit zina bil jabr with her but she (Mst. Munazza Bibi) did not raise any hue and cry; that it also seems to be improbable that the appellant in presence of Mst. Munazza Bibi, sister-in-law (bhabhi) of the victim attempted to commit rape with her; that as per prosecution, the appellant gave punches/fist blows to Mst. Munazza Bibi (PW-3) but she was not medically examined, therefore, the statement of said witness (PW-3) is not of worth reliance; that the last worn clothes of the victim were not produced before Muhammad Jahangir, ASI/I.O. (PW-6) on his first visit of the place of occurrence rather the clothes i.e, shirt (P.1), shalwar (P.2) and string (P.3) were produced to the I.O. One day after the occurrence and those clothes were of common nature as stated by Sardar Muhammad (PW-5); that it was case of the complainant in the FIR and before the learned trial Court that at the time of occurrence, the appellant was armed with pistol but no pistol was recovered at the instance of the appellant during the course of investigation; 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 after hearing learned 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 the delay in the registration of FIR has reasonably explained by the complainant before the learned trial Court that when he was about to proceed to the police station for legal proceedings against the appellant, the respectable of the area intervened with the assurance that the appellant will pray and seek pardon; 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. Munazza Bibi (PW-3) who was present in the house at the time of occurrence and the statement of Mst. Safia Bibi, the victim, who is the star witness qua the attempt of rape, who fully supported the prosecution case before the learned trial Court; that the appellant was found fully involved during the course of investigation; 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 the contents of FIR (Ex.PA/1), the alleged incident took place on 16.11.2007 at 9.00 a.m. Whereas the matter was reported to the police on 23.11.2007 at about 7.30 p.m. i.e, after the delay of about seven days without there being any satisfactory explanation. The reason for such delay explained by the complainant before the learned trial Court was to the effect that when he was about to proceed to the police station for legal proceedings against the appellant, the respectable of the area intervened with the assurance that the appellant will pray and seek pardon. The reason for this inordinate delay of seven days in lodging the FIR is improbable because of the reason that he (complainant) has not produced any of the respectables before the police or before the learned trial Court in support of this assertion. Therefore, I am of the view that the complainant got registered this FIR with due deliberations and consultations.
(b) The complainant Muhammad Aslam (PW-1), as per his own showing, is not an eye-witness of the occurrence as he himself mentioned in the application (Ex.PA) which became basis for the registration of FIR (Ex.PA/1) that on his arrival, the Witnesses and his sister narrated the whole occurrence. Therefore, the evidence of the complainant is of no avail for the prosecution. So far as the statement of Mst. Safia Bibi, the alleged victim of this case is concerned, she while appearing before the learned trial Court as PW-3 made dishonest improvements in order to strengthen the prosecution case. She was duly confronted with her previous statement (Ex.DA) and the improvements were brought on the record. Following portion of cross-examination of Mst. Safia Bibi (PW-2) is relevant which is reproduced as under:-- ' "...I got recorded in my statement before the police that the accused had torn my worn clothes and broke the string of my shilwar. (Confronted with Ex.DA where it is not so recorded). I had got recorded in my statement Ex.DA that Mst. Munazza PW-was cleansing the utensils. (Confronted with Ex.DA where it is not recorded)...."
' From the above, it is obvious that these improvements were made by the Mst. Safia Bibi (PW-2) to strengthen the prosecution case. It is well settled by now that when a witness improves his/her statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable. While holding so I am fortified by the dictum of law laid down by Honorable Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others versus The State and others" (2010 SCM R 385) and "Syed Saeed Muhammad Shah and another versus The State" (1993 SCM R 550). Seeking guidance from the above judgments of the, apex Court I hold that the evidence of Mst. Safia Bibi (PW-2) is not reliable.
(c) The other witness of this case is Mst. Munazza Bibi (PW-3), who claimed before the learned trial Court that she was washing utensils in the Courtyard of the house when the appellant came, went straight to the room of Mst. Safia Bibi and attempted to commit zina-bil-jabr with her. It is in the statement of the complainant that if someone enters the said room, he/she can be seen by the person sitting in the Courtyard, therefore, the presence of Mst. Munazza Bibi (PW-3) at the place of occurrence becomes doubtful as it is improbable that the appellant in presence of Mst. Munazza Bibi, sister-in-law (bhabhi) of the victim would attempt to commit rape with her. It is also the case of the prosecution that the appellant gave punches/fist blows to Mst. Munazza Bibi (PW-3) but she was not Medically examined, therefore, the statement of said witness (PW-3) is not of worth reliance.
(d) The last worn clothes of the victim i.e, shirt (P.1), shalwar (P.2) and string (P.3) were taken into possession by Muhammad Jahangir, ASI/I.O. (PW-6) on 24.11.2007 vide recovery memo (Ex.PB). The same were not produced before the Investigating Officer on the first day of occurrence when he visited the place of occurrence and it was stated so by Muhammad Jahangir, ASI/I.O. (PW-6) in his cross-examination that on his first visit to the place of occurrence the complainant party did not produce any clothes of the victim, worn by her at the time of alleged occurrence. It was also stated by Sardar Muhammad (PW-5) in his cross-examination that the clothes produced by the complainant were of common nature. Therefore, this piece of evidence is also not much helpful for the prosecution.
(e) It was also alleged in the FIR and before the learned trial Court that at the time of occurrence, the appellant was armed with pistol but no pistol was taken into possession at the instance of the appellant during the course of investigation.
9. Form the above said reasons, the case of prosecution against Naseer Ahmad (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 Honorable 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."
10. In view of the above, this appeal is allowed and the conviction and sentence awarded to the appellant vide judgment dated 8.6.2009 passed by the learned Additional Sessions Judge, Sheikhupura are set aside. The sentence of the appellant was suspended vide order dated 8.4.2010 and he is present in the Court. His surety stands discharged from the liability of bail bond.