Appellants Sajid alias Shahzad and Mehmood Ahmad through Criminal Appeal No. 199 of 2014 & Criminal Appeal No. 159 of 2014 respectively, have assailed the judgment dated 16.01.2014 passed by the learned Additional Sessions Judge, Nankana Sahib ,in a case FIR No. 120 dated 08.03.2011 registered under Sections 365-B, 376 & 337- L(2), PPC at Police Station Bara Ghar whereby they have been convicted under Section 365-B, PPC and sentenced to life imprisonment each while acquitting the appellants of the charges under Sections 376 & 337-L(2), PPC. The complainant has also filed Criminal Revision No, 131 of 2014 for enhancement of sentences awarded to the appellants. All these three matters being interconnected shall be disposed of through this single judgment.
2. Brief facts of the case as unfolded through the statement of the complainant Muhammad Siddique Ex.PA, on the basis of which FIR Ex.PA/1 was recorded, are that on 03.03.2011 at 11.00/12.00 p.m. he was sleeping in the Courtyard of his house where the cattle were available whereas his wife Mst. Majeedan Bibi, who was a deaf along with his daughter Sajida Bibi aged about 14 years was sleeping in the room. The daughter of the complainant Sajida Bibi came out of the room to ease herself upon which accused Mehmood and his servant Shahzad ambushing there, put a cloth into her mouth and took her away to the drawing room (Baithak) of Mehmood where he as well as Shahzad committed zinc with her against her will. Upon hearing the hue and cry of Sajida Bibi, complainant along with Siddique son of Bashir Ahmad and Muhammad Aslam son of Bashir Ahmad came there and witnessed commission of zina with the victim. The accused succeeded in fleeing away by pushing the complainant and the witnesses.
3.After completion of investigation, Challan was submitted against the appellants who were formally charge sheeted to which they pleaded not guilty and claimed trial.
4.To substantiate the charge against the appellants, prosecution produced as many as seven witnesses. Lady Doctor Fozia ( Noor (PW-7) furnished the medical evidence, complainant Muhammad Siddique (PW-1) and victim Sajida Bibi (PW-2) provided the ocular account whereas Amjad Hussain S.I. (PW-5) and Ashfaq Ahmad ASI (PW-6) conducted investigation in this case. The remaining evidence is of formal in nature.
5.Lady Doctor Fozia Noor, Women Medical Officer, Syed wala medically examined Sajida Bibi aged about 14 years and observed as under:-- P.V Examination of patent Vulva, vagina were normal. Hymen was intact. Vagina admits one finger. Uterus was of normal size.
Menses started on the same day. It was old case of rape.
General Examination An abrasion on neck measuring 1 cm x t cm.
According to her opinion, given after the receipt of report of Chemical Examiner the sexual intercourse had been committed. The probable duration was observed as three days.
6.Learned ADPP vide his statement dated 10.07.2012 gave up PWs Muhammad Siddique son of Bashir Ahmad and Muhammad Aslam son of Haji Bashir Ahmad in view of the application filed by complainant Muhammad Siddique. He also tendered the report of Chemical Examiner (Ex.PH) and closed the prosecution evidence.
7.The appellants in their statements under Section 342, Cr.P.C. denied the allegation and professed their innocence. While answering the question "Why this case against you and why the PWs deposed against you?" the appellant Mehmood Ahmad stated as under: "I have been falsely involved in this case due to enmity and party friction. PWs falsely deposed against me due to said reason and due to their relationship with the complainant."
Appellant Sajjad alias Shahzada replied the said question on the similar lines as is deposed by the appellant Mehmood Ahmad. Both the appellants neither appeared as their own witnesses under Section 340(2), Cr.P.C. nor produced any evidence in their defence.
8.After conclusion of trial, the learned trial Court vide impugned-judgment dated 16.01.2014 has convicted and sentenced the appellants as mentioned above.
9.Both the learned counsel for the appellants contend that there is an inordinate delay of five days in lodging of the FIR and three days in medical examination of the alleged victim; that as per FIR, Siddique son of Bashir Ahmad and Muhammad Aslam son of Haji Bashir Ahmad had allegedly witnessed the occurrence other than the complainant himself but both of them were given up during the evidence being unnecessary for the reasons best known to the prosecution. Further contend that the learned trial Court has already acquitted the appellants of the charges under Sections 376 & 337-L(2), PPC and no appeal against their acquittal has been filed whereas kidnapping of the alleged victim stands unproved, as taking her away by the appellants by scaling over the wall more than eight feet high is quite impossible and even otherwise as per deposition of the complainant PW-1 during cross-examination, the distance between his cot and the drawing room of the appellant Mehmood Ahmad was five to five and half Karams, which distance is not enough to constitute an offence of abduction; that even as per prosecution case itself no one had witnessed the alleged abduction of Sajida Bibi PW-2 and her sole statement in this regard lacks corroboration; that statements of the complainant PW-1 and alleged victim PW-2 are full of dishonest improvements; that the prosecution remained fail to prove its case against the appellants beyond any shadow of doubt, therefore, they deserve acquittal.
10.On the other hand, learned District Public prosecutor assisted by learned counsel for the complainant contends that the I matter was promptly reported by the complainant, due to the mala fide of police, victim was medically examined with a delay of three days and FIR was lodged even two days thereafter; that both the, witnesses Muhammad Siddique PW-1 and Sajida Bibi PW-2 remained consistent regarding active participation of both the appellants in the abduction as well as commission of zina-bil-jabr and despite having conducted lengthy cross-examination the defence could not bring on record anything favourable to it. Further contends that the learned trial Court has erroneously acquitted the appellants of the charge under Section 376, PPC despite the positive report of Chemical Examiner regarding the vaginal swabs and final opinion of the Lady Doctor to the effect that sexual intercourse had been committed with the victim; that although it has been observed by the Lady Doctor that the hymen was intact yet she his admitted during cross-examination that in some ladies rupture of the hymen is not necessary. Further adds that it has categorically been deposed by both the witnesses that the appellants had taken the victim to their drawing room (Baithak) by scaling over the wall and deposition of the Investigating Officer PW-5 during cross-examination regarding, height of the wall does not find support from the site- plan; that there is no reason whatsoever for false implication of the appellants in this case; that the appellants also remained fugitive from law for a period of more than five months without any plausible explanation, which is also a corroborative piece of evidence against them; that the prosecution has successfully proved its case against the appellants beyond any reasonable doubt and they are liable to be convicted and sentenced under Sections 376 and 337-L(2), PPC as well.
Learned counsel for the complainant while arguing Criminal Revision No. 131 of 2014 contends that although it has been filed for enhancement of sentences of the appellants awarded under Section 365-B, PPC yet this Court has ample powers to convert, it into a criminal appeal against acquittal of the appellants under. Sections 376 & 337-L(2), PPC.
11.I have heard the arguments from both the sides at length; have given anxious consideration to the same and have also scanned the record with their able assistance.
12. Prior to going into the merits of the case, I feel it appropriate to firstly deal with the question of conversion of criminal revision filed by the complainant for enhancement of sentences of the appellants into a criminal appeal against their acquittal under Sections 376 & 337-L(2), PPC.
Undeniably, this Court has ample powers to convert a criminal revision into a criminal appeal against acquittal, however, head-note or prayer clause of criminal revision filed by the complainant do not reflect anything leading this Court to the conclusion that it has been filed against acquittal of the appellants under Sections 376 & 337-L(2), PPC and has mistakenly been filed as a criminal revision. The prayer clause of criminal revision reads as follows: "Under the circumstances, it is respectfully prayed that the revision petition may kindly be accepted and the sentence of life imprisonment awarded to Respondents No. 1 and 2 may very graciously be enhanced to death."
In view of the above, I am quiet convinced that criminal revision has specifically been filed for, enhancement of sentences of the appellants awarded under Section 365-B, PPC and I do not find any reason to convert the same into a criminal appeal against acquittal of the appellants under Sections 376 & 337-L(2), PPC.
13. Admittedly, learned trial Court has already acquitted the appellants of the charges under Sections 376 & 337-L(2), PPC and no appeal against their acquittal has been filed. For ready reference relevant observation of the learned trial Court at Pages No. 11 & 12 of the impugned judgment is reproduced that reflects as under: "It is strange that no mark of violence qua private part of the victim have been noted by the Medical Officer, PW-7. It is quite improbable that two men of full age committed rape against the will of .a victim whose age is 14 years and there is no swelling on labia majora or on labia minora.
Situation become more alarming when it is first sexual activity of the victim so, the story of rape by two accused seems to be doubtful. At the most, it is a case of only partial penetration by a single accused. Prosecution has not conducted semen grouping for the purpose of evaluating that which of the accused committed rape with the victim Mst. Sajida Bibi. So much so prosecution has not medically examined both the accused persons to establish the fact that they were potent and able to perform sexual act. Though the accused persons have not denied this fact but it is the prosecution who has to establish the fact that the accused were competent to perform sexual act.
Prosecution has not produced original report of chemical examiner in evidence and only photocopy was produced in the evidence, which was admitted in the evidence by predecessor of this Court and I am afraid as per 'Section 510, Cr.P.C, only original report of chemical examiner is admissible in evidence. So, I am afraid ocular account put forwarded by the victim and Muhammad Siddique complainant is not corroborated by medical account so, story of the prosecution is under heavy clouds to the fact whether both the accused committed rape with the victim lady or only one of the accused effected penetration is a question which has not been successfully answered by the prosecution and in absence of such proof accused persons cannot be convicted for the offence u/S. 376, PPC.
24. As regard the offence u/S. 337-L(ii), PPC which is abrasion on the neck measuring 1 x 1 cm and same has not been assigned by the victim to any of the accused and both the PWs retrained mum in this regard so, in absence of specification, accused cannot be convicted u/S. 337-L(ii), PPC."
14. As far as conviction of the appellants under Section 365-B, PPC is concerned, it is pertinent to mention that evidence led by the prosecution indicates that the appellants had taken the alleged victim to the drawing room by scaling over the wall of her house. Although the un-scaled site-plan Ex.PF does not reflect the height of the outer well of-the house of the complainant yet the Investigating Officer PW5 has admitted during cross-examination that the height of wall was more than eight feet, hence, it is quiet improbable that the appellants would have been able to take the alleged victim with force by scaling that much higher wall when it is not the case of prosecution that for the said purpose any ladder or something else was used. Even the complainant (PW-1) had not witnessed the alleged taking away of the victim Sajida Bibi and in this regard there remains the sole statement of Sajida Bibi herself that does not find corroboration from any other evidence. Therefore, story narrated by the prosecution regarding alleged taking away of the alleged victim from her house to the drawing room of the appellant Mehmood Ahmad is totally doubtful. Even otherwise as per statements of PW-1 and PW-2 house of the appellant Mehmood Ahmad is just opposite to the house of the complainant and distance in between both the houses has been mentioned as five to six Karams. The un-scaled site-plan of the place of occurrence Ex.PF confirms the distance in between both the places. In such like situation where the victim is allegedly taken to a nearby place for any illicit purpose, offence under Section 365-B, PPC is not made out. In this regard I respectfully refer a case of "Shamas Saeed Ahmed-Khan versus Shafauliah and another" (1985 SCM R 1822 Shariat Bench) wherein it has been held as under: "As regards the other charge, criminal liability under Section 12 of the Ordinance, like other offences of the category. depends on the existence of the intention or reasonable knowledge of the person accused of the crime. If the intention be to kidnap or abduct for the specified purpose or kidnapping or abduction is coupled with the reasonable knowledge of the likelihood of the specific purpose then the offence will "definitely fall under Section 12 of the Ordinance. If, however, the intention be to commit the very act indicated as the purpose with no intention to commit kidnapping or abduction then merely becaused the victim was moved a few paces in terrorem or shoved along, for safe and unobtrusive achievement of the intended purpose will not make an additional 'offence under Section 12 of the Ordinance. The evidence in this case indicates that abduction was neither intended nor was the object of the crime. The intention was to commit sodomy and sodomy alone. At the elevated site of a railway crossing where the respondents encountered the complainant, safe and unobtrusive achievement of the intended object would riot have been possible. So they forced the complainant to move a few paces, according to one estimate about eighteen paces, for undisturbed performance of the intended act in a low lying area not exposed to the metalled road, the canal bank, or the level crossing. In such a situation offence under Section 12 of the Ordinance is not made out."
The similar view has been taken in the case of "Abdul Wadood and another versus The Sate" (1986 SCM R 1947) and in the case of "Muhammad Akhtar versus Muhammad Shafique and another"
(1986 SCM R 533).
15. For what has been discussed above, conviction and sentence passed against the appellants under Section 365-B, PPC is not sustainable. Appellants have already been acquitted by the learned trial Court of the charges under Sections 376 & 337-L(2), PPC, Therefore, by extending benefit of doubt to the appellants, Criminal Appeal No. 199 of 2014 & Criminal Appeal No. 159 of 2014 are allowed and appellants Sajid alias Shahzad and Mehmood Ahmad are acquitted of the charges. They be released forthwith if not required to be detained in any other case. Consequently, Criminal Revision No. 131 of 2014 for enhancement of sentences of the appellants under Section 365-B, PPC filed by the complainant stands dismissed. In view of disposal of criminal appeals of the appellants, Crl.Misc.No. 01 of 2014 in Criminal Appeal No. '199 of 2014 and Crl.Misc.No. 01 of 2014 in Criminal Appeal No. 159 of 2014 have lost their relevance and stand disposed of accordingly.