' This Criminal Appeal filed by Riaz Hussain the appellant, is directed against judgment dated 21.06.2014 passed by learned Addl: Sessions Judge, Layyah, whereby the appellant was convicted in private complaint under Section 376, PPC at P.S. City Layyah and sentenced under Section 376, PPC as under: ' Rigorous imprisonment for 10-years along with fine of Rs, 50,000/- or in default thereof to further undergo 6-months S.I. By giving the benefit of Section 382-B, Cr.P.C.
' Whereas, Mumtaz Hussain, co-accused was acquitted of the charge.
2. The succinct allegation against the appellant as described in complaint (Ex.PA) filed by Elahi Bakhsh, complainant (PW-1) is that on 05.02.2013 at about 7.00 pm, Riaz Hussain along with his co- accused Mumtaz Hussain abducted Mst. Fiaz Bibi, victim and took her in an unknown place, where appellant committed rape with her, while co-accused remained stood on guard. The complainant approached the police and got lodged FIR No, 84-2013 under Sections 365-B & 376, PPC at P.S. City, Layyah. However, the police did not investigate the matter properly and declared Mumtaz Hussain co-accused innocent. Hence, feeling dissatisfied with investigation of police, instant private complaint was filed against the appellant and co-accused (since acquitted).
3. After observing all the legal formalities, the complaint was admitted for regular hearing. The appellant and co-accused were summoned through process of law. Consequently, accused Riaz Hussain, the appellant was taken into custody, whereas Mumtaz Hussain, co-accused (since acquitted) himself appeared before learned trial Court. The learned trial Court after supplying copies of the documents to the accused-persons, framed charge under Sections 365B, 376 & 337/L(ii), PPC against them to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case against the appellant and co-accused examined four prosecutions witnesses and five Court witnesses before learned trial Court comprising of complainant Elahi Bakhsh (PW-1), Mst. Fiaz Bibi (PW-2), Muhammad Rasheed (PW-3), the witnesses of incident, Lady Dr. Rizwana Rafique (CW-4), who medically examined the victim, Khalid Mehmood, A.S.I. (CW-5), who investigated the matter, whereas remaining witnesses are formal in nature, therefore, no needs to discuss them here. The prosecution closed its evidence.
5. The appellant in his statement recorded under Section 342, Cr.P.C., denied the allegation levelled against him by the prosecution and professed his innocence. While replying to a question that why this case is against you and why P.Ws deposed against you, the appellant replied as under:- "I am innocent. The PWs are related inter se and inimical to me. Neither Mst. Fiaz Bibi was abducted by me nor I committed rape with her. I did not have sexual intercourse with her. I was studying in B.Sc at the time of incident. It was about 8 p.m and I was busy in study in front of my house. Mst.
Fiaz Bibi came there along with a little girl Tooba Bibi of her own accord. I informed my father. My father called upon the residents of the locality who gathered there and all the residents and my father decided that Mst. Fiaz Bibi be returned honourably to her father's house. I against the wishes and desire of Mst Fiaz Bibi left her and Tooba Bibi in front of her house. Her parents and inmates gave her severe physical torture and Mst. Fiaz Bibi also annoyed with me. On her return and on her wishes, the complainant and his family members consumed time to concoct a false story and this false case was registered against me. The complainant party demanded heavy amount from me and I am very poor person. I used to do labour, and earn my livelihood and also studying. There is no mention of physical torture of victim from my hands in the FIR or in the statement of Ms. Fiaz Bibi recorded under Section 161, Cr.P.C. Dishonest improvements have been made in this case. Due to my Innocence, I made application to the learned Area Magistrate for DNA test in this case. Had the DNA test been conducted, it could prove my innocence conclusively."
' Upon conclusion of the trial, learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned supra.
6. The learned counsel for the appellant has contended that the conviction and sentence recorded by learned trial Court is unwarranted by law and facts of the case. Further submits that depositions of PWs regarding the incident is in conflict with medical evidence and report of DNA test; that the prosecution has miserably failed to establish its case against the appellant beyond any shadow of doubt. Further submits that the evidence of prosecution suffers from material contradictions. The prosecution witnesses tried to improve their case by introducing new facts and learned trial Court while ignoring such dishonest improvement, convicted and sentenced the appellant without rhyme or reason. There was no need of reappraisal of the depositions of complainant (PW-1), Mst. Fiaz Bibi, victim (PW-2) and Muhammad Rasheed (PW-3) to the extent of abduction of Mst. Fiaz Bibi, the victim because the same was disbelieved by the learned trial Court. Hence, it is prayed for acceptance of this appeal and acquittal of the appellant.
7. On the other hand, learned law officer has opposed this appeal and contended that the prosecution has produced ocular account corroborated with medical evidence and there is no reason to accept the instant appeal as the appellant committed a heinous offence and he deserves no leniency, therefore, prayed for dismissal of instant appeal.
8. Elahi Bakhsh, Complainant (PW-1) and Mst. Fiaz Bibi, victim (PW-2) while appearing in person, have sworn their affidavits (Mark-A & B) and produced the same before this Court by contending that they have no objection over the acquittal of the appellant in order to condense the litigation, promote peace and harmony between the fighting parties.
9. Arguments heard and record perused.
10. Admittedly, no appeal against the acquittal of appellant under Section 365-B & 337/L(ii), PPC and criminal revision for enhancement of sentence of appellant has been filed. The reason given by learned trial Court for the acquittal of appellant under Section 365B, PPC regarding the story of abduction of victim is disbelieved qua the evidence of complainant Elahi Bakhsh (PW-1), Mst. Fiaz Bibi (PW2) and Muhammad Rasheed (PW-3), therefore, there is no need to reappraise the deposition to the extent of abduction of Mst. Fiaz Bibi, the victim (PW-2).
11. The case of prosecution hinges upon the statement of Mst. Fiaz Bibi, the victim (PW-2), who is sole witness of the occurrence in this case. She appeared in the witness-box and stated in examinationin-chief that after her abduction, Riaz Hussain, appellant committed rape with her while Mumtaz Hussain, co-accused (since acquitted) kept on guard. Learned trial Court on the same set of evidence acquitted Mumtaz Hussain co-accused and accepted the deposition of Mst.
Fiaz Bibi (PW-2) to the extent of appellant for committing rape only. I have gone through the deposition of PW-2 and found a number of contradictions on material point in her deposition.
According to her deposition, she was virgin /unmarried at the time of incident and she was abducted on 05.02.2013. The appellant committed rape with her. On the next day, when she came in her senses, she found herself in the house of her uncle Ellahi Bukhsh (PW-1).
12. Lady Doctor Rizwana Kafique (CW-4) medically examined Mst. Fiaz Bibi, victim, (PW-2) on 07.02.2013, according to the statement of Lady Doctor, she observed that hymen of the alleged victim was not in-tact, old healed tags were present on periphery. Vaginal orifice was visible. Two fingers could easily be passed. Lady Doctor had taken three vaginal swabs and sent the same to the office of Chemical Examiner for semen analysis. Blood samples of appellant were also taken and sent the same to the office of Forensic Science Laboratory for DNA analysis along with vaginal swa bs of the victim. Doctor stated in her examination-in-chief that report of Forensic Science Agency for DNA test (Ex.CW-4/E) was received, according to which no seminal material was identified. No analysis was conducted on item No, 2 & SI at this time. In cross-examination, Lady Doctor admitted that Examinee was found to be old sexual case and was used to sexual act befcre examination. Doctor further admitted it correct that DNA report has not identified the semen with respect to appellant.
13. The ocular account furnished by Mst. Fiaz Bibi, victim (PW-2) is in conflict with medical evidence and report of DNA test (Ex.CW-4/E). Thus, I feel no hesitation in concluding that the prosecution has miserably failed to establish the charge against the appellant beyond any shadow of doubt. It was the duty of the prosecution to prove its case while standing on its own legs from hilt to guilt but in the case, in hand, prosecution has not fulfilled its obligation. It is settled law that where any doubt or suspicion appears to be existed then benefit thereof always is extended in favour of the accused being the favourite child of law.
14. Keeping in view the contradictions in the ocular account as well as the medical evidence coupled with affidavits (Mark-A & B) sworn by complainant and victim by contending that they have got objection for the acquittal of the appellant, I came to the conclusion that instant criminal appeal is accepted and conviction and sentence recorded by learned trial Court vide judgment dated 21.06.2014 is set-aside. I acquit Riaz Hussain, the appellant from the charge. He is in jail and jail authority is directed to release the appellant forthwith if not required in any other case.