QAZI MUHAMMAD AMIN AHMED, J:- Imran alias Mani, and Muhammad Saleh Pal, appellants in Crl.Appeal No. 423 of 2014 as well as Hassan Shahzad appellant in Crl. Appeal No. 449 of 2014 were tried by a learned Additional Sessions Judge at Jhelum; they were indicted for committing abduction and rape of Saman Anjum (PW-10), 17, on 1-5-2013 at 10:30, a.m, within the area of Jada, situating at a distance of 3-kilometer from Police Station Saddar Jhelum; the incident was reported by Zulfiqar Ali (PW-9) through application (Ex.PG) received by Abdul Maalik, ASI (PW-12) 7:15 p.m, at Kala Gujjran Phatak; it is alleged that on the eventful day the prosecutrix was on way back to her home after taking test at an academy when the appellants took her into the house of Muhammad Younas; as she did not return at the expected time, the family set out in her search. According to the complainant, when accompanied by Munir Sani PW he passed by the house of above mentioned Maqsood, they were attracted by the screams of the prosecutrix and as they pepped through a window they saw Imran and Muhammad Saleh appellants holding the prosecutrix while Hassan Shahzad was committing rape upon her; the witnesses knocked at the door whereupon the appellants decamped leaving the prosecutrix at the scene.
Abdul Maalik, ASI (PW-12) carried out spot inspection; he prepared sketch (Ex.PM) and secured bed sheet (P-1) from the crime scene. Dr. Tayyaba Farooq (PW-7) medically examined the prosecutrix at 7:40 p.m; found her depressed, however, oriented to time and space with abrasions on front of chest; she shared history of sexual assault with Medical Officer; shirt worn by her was torn on sleeves; on local examination hymen was found ruptured fresh. The Medical Officer collected specimens for DNA profile generation as well as swabs for detection of seminal stains. According to Forensic Report (Ex.PQ) post hymen and servicle swabs were found stained with semens; final opinion confirmed sexual assault.DNA report (Ex.PQ) is however in the negative. Hassan Shahzad and Imran alias Mani, appellants were arrested on 2-5-2013 while Muhammad Saleh Pal was taken into custody on 6-5-2015; they were found potent in their medical examinations; sent to the Court, the appellants were indicted on 19-6-2013; when they claimed trial, pursuant whereto, besides placing reliance upon forensic reports, the prosecution produced as many as twelve witnesses to drive home the charge, confronted by a unanimous denial; they blamed Zulfiqar Ali (PW-9) for having architected a fake case to blackmail them; they produced Shahwaiz Muzaffar as DW-1 to establish that the prosecutrix had been expelled from the academy much before the occurrence and as such her plea that she was on way back after taking some examination was beside the mark. The learned trial Judge, unimpressed by appellants' position convicted Hassan Shahzad, appellant under Section 376 of the Pakistan Penal Code, 1860 and sentenced him to undergo imprisonment for 25 years with fine of Rs.200,000/- or to undergo six months S.I in the event of default; Imran alias Mani and Muhammad Saleh Pal appellants were convicted under Section 376 read with Section 109 of the Code ibid and sentenced to 10 years R.I with fine of Rs.200,000/- each or to undergo six months S.I in the event of default with benefit of Section 382-B of the Code of Criminal Procedure, 1898; they were acquitted from the charge of abduction vide impugned judgment dated 30-9-2014, vires whereof, are being challenged through the above referred to appeals, being decided through this single judgment.
2. Learned counsel for the appellants contend that the occurrence did not take place in the manner as alleged in application (Ex.PG); that prosecution story is extremely unnatural and improbable and spells out a scenario altogether different; that appellants' acquittal from the charge of abduction left no space for the learned trial Judge to return a guilty verdict as it raised the entire edifice to the ground; that a negative DNA report (Ex.PQ) goes a long way to reflect upon the prosecution case; that in the absence of serological analysis positive Chemical Examiner Report with regard to the seminal swabs was of no consequence. It has also been argued that investigation suggested an intimacy between the prosecutrix and the principal accused which is antithetical to the hypothesis of rape. The bottom-line of arguments made at the bar is that the prosecution case is not free from doubts. Contrarily, the learned Law Officer assisted by learned counsel for the complainant defended the impugned judgment, it has been argued that under our social ethos and set-up a family would never raise a false accusation involving honor of an unmarried female member.
3. Heard. Record perused.
4. The fate of the prosecution case is primarily hinged upon the statement of Mst. Saman Anjum (PW-10); she pointed her accusing finger on all the three appellants, of them, she blamed Hassan Shahzad, appellant for violating her on 1-5-2013 at 9:00 a.m; she was medically examined same day at 7:40 p.m and the Medical Officer found hymen freshly ruptured; there were some abrasions on the front of her chest as well; though DNA report (Ex.PQ) failed to generate a compatible DNA profile, post hymen and survicle swabs were found stained with semen as per Chemical Examiner Report (Ex.PF) albeit with no serological analysis and a negative finding qua pre-hymen swabs. These forensic deficiencies have been argued by learned counsel for the appellants at great length, nonetheless, clinical examination soon after the incident confirms the narrative related by the prosecutrix in the witness box and thus mischief of Section 376 of the Code ibid stands fully attracted.
Argument that statement of Zulfiqar Ali (PW-9) does not fit within the ambit of probability and its repetition by the prosecutrix renders her credibility equally doubtful qua all the appellants is not of much help to Hassan Shahzad appellant; unambiguously blamed for having ravished the prosecutrix. Even if the narrative furnished by Zulfiqar Ali (PW-9) is excluded from consideration, independent reasons are required to discard prosecutrix' s testimony vis-- vis Hassan Shahzad appellant. An obliq ue reference by learned counsel for Hassan Shahzad appellant to a possible intimacy between the both of them, in order to bring the case within the purview of a consensual encounter is also beside the mark as the defence despite a lengthy cross-examination has not been able to bring on record even a single circumstance to spell out a scenario suggestive of any surprise arrival precipitating a compulsive retraction on part of the prosecutrix. Absence of any significant mark of violence and appellants' acquittal from the charge of abduction cannot be cited as a proof of volition to ward off the penal consequences under Section 376 of the Code ibid as it would be incumbent upon the accused to reasonably demonstrate that the impugned act was committed by him with her will and consent, therefore under whatever circumstances the prosecutrix came across Hassan Shahzad appellant, her mere presence in his company cannot be equated with her will or consent as a defence so as to ward off penal consequences. Reliance is placed on the case of Rao Harnarian Singh v. The State (AIR 1958 Punj 123), relevant portion whereof is advantageously reproduced below:- " A mere Act of helpless resignation in the face of inevitable compulsion, quiescence, non resistance, or passive given in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the Act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere Act of submission does not involve consent. Consent of the girl in order to relieve an Act, of a criminal character , like rape, must be an Act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to Act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
The nutshell of the above discussion is that statement of Mst. Saman Anjum (PW-10) supported by medical evidence furnished by Dr. Taayaba Farooq (PW-7) is sufficient to sustain the charge as together these two pieces of evidence excludes every hypothesis of Hassan Shahzad, appellant 's innocence. Consequently , Crl.
Appeal No. 449 of 2014 fails, however , the sentence of 25 years imprisonment is reduced to 10 years R.I a period that would meet the ends of justice in the facts and circumstances of the case; fine shall be recovered as arrears of land revenue to be paid to the prosecutrix as compensation, however , in the event of default, the appellant shall undergo six months S.I. Involvement of Imran alias Mani, and Muhammad Saleh Pal is not free from doubt; they have been convicted for having conspire d the offence and prosecution has not been able to bring on record any details of the conspiracy , thus out of abundant caution and in order to ensure safe administration of criminal justice, they are acquitted from the charge, Crl. Appeal No. 423 of 2014 is allowed; they are on bail, they need not to surrender; their bonds are cancelled and sureties discharged.
5. As a natural corollary Criminal Revision No. 202 of 2014 is dismissed.