Ch. Abdul Aziz, J. This judgment shall dispose of the afore-captioned appeal filed by seven appellants namely Ashiq Ali, Muhammad Hanif, Sarfraz alias Kaka, Muhammad Younas, Abdul Rehman, Jamshaid alias Kaka and Tahir (against conviction) which is arising out of judgment dated 15.03.2012 passed by learned Additional Sessions Judge, Chichawatni in case FIR No.65/2010 dated 19.03.2010 for the offence under section 376 (2)
PPC registered at Police Station Ghaziabad, Chichawatni, District Sahiwal. The learned trial court through the impugned judgment convicted and sentenced all the appellants in the following terms:- Jamshaid alias Kaka, Muhammad Younas, Abdul Rehman alias Kala and Tahir (appellants) Under section 376 (2) PPC to undergo imprisonment of life each as well as to pay fine of Rs.25,000/- each and in default whereof to further undergo SI for two months.
Ashiq Ali, Muhammad Hanif and Sarfraz (appellants) Under section 114 PPC read with section 376 (2)
PPC to undergo imprisonment of life each as well as to pay fine of Rs.25,000/- each and in default whereof to further undergo SI for two months.
The benefit of section 382-B Cr.P.C. was also extended in favour of all the appellants."
2. Briefly stated the facts of the prosecu tion case as unveiled by Muhammad Nasir complainant (PW.5) in FIR (Exh.PE/1) are to the effect that on the intervening night of 11/12.03.2010 at about 9:00 p.m., his sister Mst. Shakila aged about 16-years was sleeping with her sisters in the house; that his parents had gone to Faisalabad in connection with a marriage; that Mst. Shakila went to the fields for easement where appellants namely Tahir, Kaka, Younas, Ashiq, Hanifa, Sarfraz and Kala were already present who caught hold of her; that Tahir (appellant) committed rape with her whereas the remaining appellants were present while guarding the incident; that on the hue and cry of Mst. Shakila Bibi, Ghulam Rasool (given up PW) and Irshad (PW.4) were attracted to the spot and on seeing them, the accused persons fled away; that he was informed about the occurrence by the family members through telephone and on 18.03.2010 he came home where Mst. Shakila (victim) and the PWs narrated the tale of incident to him.
3. The matter was investigated by Muhammad Ashraf SI (PW.7), during which he got medically examined Mst.
Shakila (victim) on 20.03.2010. He obtained warrants of arrest of all the accused except Muhammad Younas (appellant) as well as their proclamation and handed over the same to Muhammad Ayub 242/C for execution. He arrested Sarfraz, Muhammad Younas, Abdul Rehman alias Kala, Jamshaid and Muhammad Hanif on different dates and later on got former three medically examined for the evaluation of their potency and submitted incomplete report under section 173 Cr .P.C. on 05.06.2010.
4. The prosecution, in order to prove its case against the appellants produced seven PWs which include Mst.
Shakila Bibi (PW.3), the victim, Muhammad Irshad (PW.4), an eyewitness of the occurrence and Nasir (PW.5) complainant of the case, Lady Doctor Hina Ambar (PW.6) who medically examined the victim, Dr. Muhammad Saleem Akhtar (PW.1) who reported regarding the potency of the appellants namely Muhammad Younas, Abdul Rehman, Muhammad Jamshaid and Sarfraz and Muhammad Ashraf SI (PW.7) who conducted the investigation of this case.
5. Lady Doctor Hina Ambar (PW.6) on 20.03.2010 medically examined Mst. Shakila Bibi (victim) and gave the following observations:- "History of rape on 12.3.2010 by three persons. The I.O. was directed to collect the clothes worn at the time of incident. Clothes were not provided by the party . She gave the history that she had washed her clothes worn at the time of incident. The girl was of average height and built, well oriented in time, place and person. Pulse rate 80 P/M, BP 100/70, R/R 18 P/M, temperature was normal.
She gave the history that her LMP started about two weeks ago and ended after three days.
General Examination On general examination there was no mark of violence on anywhere of body . Local examination was done in lithotomy position. Hymen was torn. Tears were old. P/V examination was non-tender with non-bruise and swelling. Vaginal admitted two fingers easily . 4 external and 4 internal vaginal swabs were taken and sent to the Office of Chemical Exam iner, Multan for detection of semen if any + grouping and the Centre of Excellence Microbiology Department, Punjab University , Lahore for DNA cross-matching. Final opinion about rape would be given after the above said reports. I issued MLC Exh.PF , which is in my hand and bears my signatures.
The Report of Chemical Examiner , Multan Exh.PG has been received in the Court. As per report Exh.PG the above said swabs were not stained with semen. In the view of the above said repor t, I am of the opinion that the examinee was not virgin."
6. Dr. Muhammad Saleem (PW.1) medically examined the appellants namely Muhammad Younas, Abdul Rehman, Muhammad Jamshaid and Sarfraz for potency test and he gave MLCs (Exh.P A to Exh.PD).
7. The learned trial court examined all the appellants under section 342 Cr.P.C. who in response to question "Why this case was made against you and why the PWs deposed against you", made the following one common reply:- "It is a false case. We all the accused persons belong to different families having independent business and residence. I and my co-accused belong to Zahid Rasool Group, while complainant belongs to Qayum Group. No such occurrence ever took place. The complainant and victim were used as a tool by Qayyum Nazim of the Union Council. We were falsely involved in this case for the purpose of blackmailing at the instance of Qayyum. Later on the complainant party concocted and fabricated the story and falsely involved in this case after consultation and due deliberation. I and my co-accused have been involved in this case due to enmity and party friction and blackmailing."
The appellants neither made statement under section 340 (2) of Cr. P.C. nor produced any witness in their defence.
However , Sarfraz (appellant) produced in evidence copy of MLC (Mark-A). On the conclusion of trial, the appellants were convicted and sentenced as stated above, hence, the instant appeal.
8. It is contended by learned counsel for the appellants that the instant case was registered with a delay of about eight days; that such delay gains more importance when seen in the context that no satisfactory explanation is offered in this regard; that according to the crime report, only Tahir (appellant) was saddled with the allegation of having committed rape of the victim, however, at later stage, all the appellants were burdened with the same blame; that though during trial three witnesses appeared to tell the tale of the occurrence, however, from their statements, it evinces that except the victim none had the opportunity to witness the crime; that even the victim is found guilty of making divergent statements in the court, whereby she implicated four of the appellants for the commission of rape; that the claim of the victim is strongly negated from the medical evidence brought on the record during the trial; that though the occurrence took place in the heart of the vicinity yet none appeared from there to support the prosecution case; that the clothes of the victim which she was wearing at the time of occurrence were also not subjected to the opinion of the expert to ascertain the presence of semen stains; that the appellants were convicted by the learned trial court solely on the basis of heinousness of the accusations which is against the law and that from the perusal of the prosecution evidence, many doubts surfaced on the record, the benefit of which was not given to the appellants.
9. On the other hand, the learned DDPP strongly controverted the arguments advanced on behalf of the appellants and submitted that they are specifically nominated in the crime report and that too in reference to the roles performed by them in the commission of crime; that though there is some delay in the registration of FIR, however, it was reasonably explained by the prosecution and was attributed to the efforts of compromise being made by the accused; that even otherwise in such like cases since the family honour is involved, hence, the delay in the registration of FIR is of no consequence; that the guilt of the appellants stands established on the basis of the statements of Mst. Shakila Bibi (victim) as well as from the testimony of two other private witnesses; that the medical evidence provides reasonable support to the allegations levelled against the appellants; that the appellants have committed a gruesome act by sexually ravishing the victim, hence were rightly convicted and sentenced by the learned trial court.
10. Arguments heard. Record perused.
11. The case of the prosecution comprises upon the statement of the victim namely Mst. Shakila Bibi (PW.3) as well as of Muhammad Irshad (PW.4), who is an eyewitness of the occurrence and the medical evidence furnished by Lady Doctor Hina Ambar (PW.6). Though Nasir (PW.5) also appeared as a witness during trial, however, since he is not an eyewitness of the occurrence, hence his statement apparently is not of immense importance.
12. It divulges from the record that the instant case is arising out of an occurrence having taken place on 11.03.2010 at about 9:00 p.m. within an area known as Chak No.31/11-L, situated within the territorial jurisdiction of Police Station Ghaziabad, District Sahiwal. According to the record, the Police Station is situated at a distance of 9-kilometers from the crime scene, however, the occurrence was reported on 19.03.2010 by Muhammad Nasir (PW.5) through an application (Exh.PE). From above, it can safely be gathered that there is a delay of about 7/8 days in the registration of FIR. From the perusal of the crime report (Exh.PE/1), it evinces that the prosecution offered an explanation to address the abovementioned delay in the registration of the instant case and attributed it to reconciliatory effort of the relatives of the accused. Since the prompt reporting or otherwise of a criminal case has its own importance, hence, the prosecution was obliged to lead some evidence in support of their acclaimed reconciliatory efforts. The perusal of the record is suggestive of the fact that no evidence indeed was led by the prosecution in this behalf.
13. From the perusal of the application for the registration of FIR (Exh.PE), it is unearthed that only Tahir (appellant) was saddled with the allegation of having committed rape of Mst. Shakila Bibi (PW.3), whereas Kaka, Younas, Ashiq, Hanif, Sarfraz and Kala were burdened with the blame of guarding the crime scene, so as to facilitate the commission of rape. A wade through the prosecution case unfol ds that in order to secure the conviction of the appellants, the prosecut ion produced three witnesses who narra ted the detail of the occurrence.
These witnesses include Mst. Shakila Bibi (PW.3) who is the victim of the case, Muhammad Irshad (PW.4) who attracted to the crime scene after hearing her hue and cry and claimed to have seen the occurrence. So far as Muhammad Nasir (PW.5), the third witness is concerned, as per admitted facts, he is not the eyewitness of the occurrence and while appearing in the dock narrated the detail of the incident provided to him by the family members.
According to the detail provided by the witnesses, the occurrence took place on 11.03.2010 at the evening time when Mst. Shakila Bibi was on way to the house of her maternal uncle to attend the call of nature due to the non- availability of a toilet in her house. When she reached in the street, she was intercepted by Ashiq Ali, Muhammad Hanif and Sarfraz who all were armed with pistols. They forcibly took her from the street to a nearby wheat field of Master Asghar Ali and remaining four appellants namely Tahir, Kaka Zargar, Kala Bhatti and Younas were already present there. According to Shakila Bibi (PW.3), all the appellants committed her rape turn by turn and on her hue and cry, Muhammad Irshad (PW.3) and Ghulam Rasool (given up PW) were attracted to the spot and witnessed the occurrence.
14. In the above backdrop, it appears to be in the fitness of things firstly to have a look over the deposition of Muhammad Irshad (PW.4), an eyewitness of the occurrence. From his examination-in chief, it spells out that he has only saddled Tahir (appellant) with the allegation of having committed rape with the victim. As regards the remaining appellants, he has attributed them the role of being present at the crime scene while guarding the situation. Though he deposed during his examination-in-chief about the victim having disclosed regarding the commission of rape by Tahir, Younas and Kala Sanaira (appellants) as well, however, during cross-examination, this portion was proved to be an outcome of dishonest improvement. Likewise, it came on record during cross- examination that according to his statement before the police, the occurrence was not witnessed by him and instead he attracted to the crime scene after receiving the information of the occurrence. For reference sake, an extract from his cross-examination is being reproduced below:- "I did not recorded in my statement Exh.D A that on receiving information I and Ghulam Rasool rushed to the place of occurrence. Confronted with Exh.DA wherein it is so recorded."
Such portion from his testimony is sufficient to draw an inference that his claim of having witnessed the occurrence after noticing the hue and cry of the victim appears to be an outcome of exaggeration, rendering it unsafe to place explicit reliance on what he deposed before the court.
15. Before embarking upon the statement of Mst. Shakila Bibi, it will be of immense importance to have a look as to how the place of occurrence is situated. According to record, the house of the victim is situated in Chak No.31/1 1-L which is inhabited by as many as two thousand persons having numerous residential houses. Though Shakila Bibi has not specifically named her maternal uncle, to whose house she was heading for availing toilet facility , however , she mentioned about it being situated in the adjacent street. It is important to mention here that Shakila Bibi also made reference to certain shops which were situated close to her house and were open at the time of occurrence.
Likewise, Muhammad Irshad (PW.4) also admitted in unequivocal terms that the vicinity of crime scene was comprising upon a densely populated area. Similarly , he acceded to the suggestion put forth by the defence regarding the presence of hotel of Ghulam Mustafa, saw-machine, bus-stand and numerous houses within the distance of 6-acres from the place of occurrence.
From above, it can safely be inferred that Shakila Bibi victim (PW.3) was intercepte d and taken to the crime scene from a well-populated spot but even then none from the vicinity appeared to support the accusations incorporated in the crime report either at investigation stage or during the trial.
16. There are multiple factors which call in question the integrity of a witness and the factum of making dishonest improvements and omissions in the state ments before the Court is one of them. Once a witness is found to have made such material improvements and omissions, his credibility stands exposed to a doubt on a plain view and shatters the legal worth of his testimony as well. In the instant case, the dishonest omissions referred above, made by Muhammad Irshad (PW.4), which is also found to be material in nature, is giving rise to a doubt. The Hon'ble Supreme Court of Pakistan while embarking upon such issue held in the case reported as Ibrar Hussain and others (2007 SCMR 605 ) as under:- "It is settled law that person making contradictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Naeem Inayat v. The State (2010 SCMR 1054).
17. Since the allegation of rape is always considered as an act bereft of any morality , hence gives rise to sentiments and emotions against the wrong doer and brings sympathy for the victim. However , a court, by its very creation, is to administer justice and such objective can best be achieved only through decisions in accordance with the available record and in consonance with the settled principles laid down for appraisal of evidence. In this backdrop, even the instant case is of no exception and this Court is obliged to decide its fate strictly in accordance with the material which has come on record during trial. In the above backgrou nd, the charge of rape can be established through the statement of the victim and the witnesses as well as from the medical evidence brought on record. As regard, the medical evidence, it is derived from multiple sources, out of which some are enumerated as under:-
(a) Marks of violence on the genitals;
(b) Marks of violence on the person of the victim as well as the accused;
(c) The presence of semen or bloodstains on the clothes of the victim or accused;
(d) The presence of seminal material in or around the vagina.
In order to find some support from the above mentioned material, this Court has appraised the medical evidence furnished by Lady Doctor Hina Ambar (PW.6) who medically examined the victim on 20.03.2010. According to the record, on the eventful night, the victim was about 17/18 years of age and since according to her claim she raised hue and cry at the time of being sexually ravished by the appellants, hence, it is also expected from her to have offered some physical resistance as well. As a necessary corollary, there should have been some marks of violence on her person either due to her resistance or on account of the sexual lust of the culprits. However, it evinces from the statement of Dr. Hina Ambar (PW.6) that she noticed no marks of violence on any part of the person of the victim. Likewise, despite specific instructions by Dr. Hina Ambar (PW.6), the clothes of the victim which she was wearing at the time of incident were also not secured for further examination. The clothes of the victim were an important piece of evidence on two counts. Firstly had these clothes been torn, it would have provided some traces about the resistance offered by the victim and aggression of the culprits to accomplish their designs and secondly their examination could have led to the detection of semen or blood stains. Such aspect gains more importance when seen in the context of the victim's stance, according to which at the time of occurrence she was deprived of her virginity. Needless to mention that in such circumstances when she was sexually ravished by three persons, it must have resulted into bleeding leaving its stains on her clothes.
18. It is further observed that during examination of the victim, Dr.Hina Ambar (PW.6) found her hymen as torn but further opined it to be having old tears. There is yet another important aspect arising out of the medical evidence and pertains to the internal and external vaginal swabs secured from the person of the victim and forwarded to Chemical Examiner , Multan and to the Centre of Excellence Microbiology Department, Punjab, Lahore for DNA analysis. According to the report of Chemical Examiner (Exh.PG), the vaginal swabs (internal as well as external) were found not stained with semen. Dr. Hina Ambar (PW.6) went on to state that the semen can be detected from the vagina within seventeen days of the act of sexual intercourse. Since it appears to be an important aspect of the case, hence the relevant extract from the cross-examination of Dr . Hina Ambar is being reproduced below:- "Semen can be detected in the vagina for 17-days. The head of chromosomes separate after three days from the tail. The chromosomes became motile about 48-hours. Semen can be detected within 17 days in case of vaginal swabs."
Since the instant case from the accusation is serious in nature, hence, instead of blindly following the opinion of the doctor, this Court has consulted the medical jurisprudence as well. Dr. S. Siddiq Husain in Chapter-XII, SEXUAL OFFENCES of his book titled as A TEXT BOOK OF FORENSIC MEDICINE AND TOXICOLOGY expressed the following opinion:- "In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa for as long as 17 days."
Similar view was expounded by B.R. Sharma in his book titled as Forensic Science in Criminal Investigation & Trials (FIFTH EDITION), which is as under:- "In vagina of a living person, spermatozoon may be detected up to about five to ten days, though the number of spermatozoon detected goes on decreasing with passage of time. "
The non-detection of semen from the vaginal swabs by the Chemical Examiner has led this Court to hold that the record of the case is providing no support to the prosecution accusation. It gains more importance when seen in the context that despite the suggestion of the Medical Officer no effort was made to subject these swabs for DNA analysis.
19. Lastly, it is noticed that Shakila Bibi (PW.3) while appearing in the dock saddled four persons namely Tahir, Kaka Zargar, Kala Bhatti and Younas with the allegation of having assaulted her sexually. Conversely, Muhammad Irshad (PW.4) went on to say that he and Ghulam Rasool (given up PW) was informed by the victim that she was raped by three persons namely Tahir, Younas and Kaka Sanaira. In this regard, it is observed that the instant case was registered after about seven days of the occurrence and according to the tale of the incident incorporated therein, only Tahir (appellant) was burdened with the blame of having committed sexual intercourse with the victim. This Court has not been able to reconcile such a glaring conflict between the stance taken by the abovementioned three prosecution witnesses as the acceptance of any one of the version mentioned above necessitates the exclusion of other.
20. So far as the non-securing of trouser (Shalwar) of the victim is concerned, it is noted that such omission can be attributed to none other than the victim herself. She has admitted with clarity that the trouser (Shalwar) was not produced before the police during investigation despite having blood stains. This feature of the case coupled with the fact that no effort was made to get the swabs subjected to the DNA analysis further persuaded this Court to hold that had these two pieces of evidence been brought on record, they would not have supported the prosecution case. While arriving at such conclusion, this Court is guided by the provisions of Article 129, Illustration (g) of Qanun-e-Shahadat Order , 1984, which is being reproduced below:-
129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations The court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under :- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution."
21. The discrepancies, omissions and conflicts, mentioned above, are giving rise to a doubt which derives a prudent legal mind to lean against the version advanced by the prosecution case. There is no cavil to the proposition that the benefit of every reasonable doubt is to be extended to an accu sed which can best be provided through a judgment of acquittal. Even as per saying of the Holy Prophet (p.b.u.h.), the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v . The State (PLD 2002 SC 1048 ), wherein, it was observed as under :- ".... 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 "mist ake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under: - "...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 bette r that ten guilty persons be acquitted rather than one innocent person be convicted"..."
22. In the light of above discussion, I accept Criminal Appeal No.217 of 2012 filed by seven appellants namely Ashiq Ali, Muhammad Hanif, Sarfraz alias Kaka, Muhammad Younas, Abdul Rehman, Jamshaid alias Kaka and Tahir, set aside their conviction and sentence recorded by the learned trial court and acquit them of the charge by extending them the benefit of doubt. Appellants namely Muhammad Younas, Abdul Rehman, Jamshaid alias Kaka and Tahir are in custody , be released forthwith if not required to be detained in any other case. Ashiq Ali, Muhammad Hanif, Sarfraz alias Kaka (appellants) are on bail and as such their sureties stand discharged from their bail bonds.