This appeal is directed against the judgment dated 11-06-2014 passed by learned Additional Sessions Judge, Muzaffargarh, whereby the appellants Imtiaz Hussain and Muhammad Azhar were convicted in private complaint under Sections 367-A/377, PPC, Police Station City Muzaffargarh, and sentenced them u/S. 377, PPC to 03-years R.I. with a fine of Rs. 10,000/-, in default to farther undergo 02-months S.1 each. Benefit of Section 382-B, Cr.P.C. was also extended to them. However, they were acquitted out of the charge u/S. 361-A, PPC.
2. The brief facts of the case narrated by the Abdul Salem, complainant (PW-.1) in his complaint (Ex.PA) as mentioned in Paragraph No, 2 of the impugned judgment is reproduced as under: "I am student of 1st year. Today, 26-05-2008 at about 9.00 am I left the house for college and when I reached at some distance from my house, Imtiaz Ahmad, the accused came there and asked that he had to get admission in the college and requested to accompany him on his bicycle. In the way, Imtiaz Hussain, the accused said that he had to obtain certain documents from Sheikh Ladho, and I along with him went there. He tooke me in the vacant house of his brother-in-law, where Mohammad Azhar, the accused was already present having a camera in his hand. They administered me intoxicant in a drink, due to which I became sedated. Then Imtiaz Hussain, the accused took out pistol from his "Nepha", and asked me to put of the shalwar. Imtiaz Hussain, the accused also put of his Shalwar, and on the pistol pint committed unnatural offence with me, while Mohammad Azhar, the accused made my snaps. Thereafter, Mohammad Azhar put of his Shalwar and committed unnatural offence with me and during that time, Imtiaz Hussain, the accused snapped my pictures. On my noise, my father Abdul Rehman, my brother Mohammad Suleman and other people of the locality attracted there, who witnessed the occurrence. On seeing them, both the accused persons fled away from the spot. The accused persons committed unnatural offence, they be punished. On my report, a criminal case was registered with the local police and I was medically examined by Doctor who issued MLC No, 235/08. During investigation, the local police joined hands with the accused party. Ilence, this private complaint."
3. Feeling 'dissatisfied of the police investigation, the complainant filed the private complaint. After recording cursory statements of the PWs, learned trial Court summon the accused/appellant to face trial whereafter the trial Court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced as many as five PWs and three CWs. Ocular account in this case consists of the statements of Abdul Salam (PW-. 1) and Haji Abdul Rehman (PW-.2). Salim Iqbal, SI (CW.1) was the Investigating Officer of this case, who stated about the various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Abdul Samad, MO (PW-.3), who on 26-05-2008 conducted medical examination of the victim Abdul Salam and observed as under: EXTERNAL EXAMINATION
1. semen stains on the Kameez, piece of Kamiz taken and preserved for detection of semen.
2. An abrasion is seen on the dorsum of the right hand 3 cm x 1,1/4 cm.
3. Multiple abrasion, 4 x 3 cm, are seen on the both elbow joints.
4. A contusion is seen on the right fore-arm.
5. Semen stains seen around the anus. Shalwar was removed away before the crime; hence no stains are seen on the Shalwar.
INTERNAL EXAMINATION
1. Anus is dilated, painful and red.
2. No internal tears seen.
External and internal swa bs are taken for detection of semen. A piece of Kamiz stained with the semen taken for the detection of semen. Probable duration of injuries with within eight hours. He also proved the MLC (Ex.PB/1) of the victim.
4. Statements of rest of the prosecution witnesses are formal in nature.
5. The prosecution gave up Muhammad Suleman and Zulfiqar Iqbal 686/C-II PWs being unnecessary and closed its evidence.
6. The statements of the appellants under Section 342, Cr. P.C. were recorded wherein they refuted the allegations leveled against them and professed their innocence. While answering to a question that "why this case against you and why the PWs had deposed against you? ", Imtiaz Hussain," appellant stated as under:-- "The PWs are inter se related to each other and just to strengthen the false statement of each other, they have deposed falsely, The father of complainant namely Haji Abdul Rehman is ex- councilor of the same area where our brother-hood resides. My family members and brother hood cast votes against father of complainant in previous local Government Elections. On the day of polling a dispute was arose between Abdul Rehman father of the complainant and our family brother hood. Due to this reason above case was registered and lateron the instant private complaint was filed against me and my co-accused. There are material contradictions and omissions in the statements of PWs. The Chemical Examiner Report Ex.DA is negative and does not corroborate the version of the complainant and PWs. On the influence of father of the complainant a false case was registered against me and my co-accused. Facts narrated in the complaint Ex. PA and statements of PWs are false. I am innocent."
Muhammad Azhar, appellant has taken the following stance: "The PWs are inter se related to each other and just to strengthen the false statement of each other, they have deposed falsely. The father of complainant namely Haji Abdul Rehman is ex-councilor of the same area where the brother hood of my co-accused resides. Family members and brothers of my co-accused cast votes against father of complainant in previous local Government Elections. On the day of polling a dispute arose between Abdul Rehman father of the complainant and family brother hood of my co-accused. Due to our relationship with the my co-accused, complainant involved me falsely. There are material contradictions and omissions in the statements of PWs. The chemical examiner report Ex.DA is negative and does not corroborate the version of the complainant and PWs. On the influence of father of the complainant a false case was registered against me and my co-accused. Facts narrated in the complaint Ex.PA and statements of PWs are false. I am innocent."
The appellants did not opt to appear as their own witness under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against them by the prosecution, however, they produced Chemical Examiner Report (Ex.DA) in their defence evidence.
7. Upon conclusion of the trial, the learned trial Court found the case against the appellants to have been proved beyond any shadow of doubt and convicted and sentenced them as mentioned above, hence, all these matters before this Court.
8. Learned counsel for the appellants submits that the judgment of the trial Court is against the law and facts; that no body from the locality has seen produced in evidence; that the oral evidence is not in consonance with medical evidence. Learned counsel for the appellants argued that the report of Chemical Examiner (Ex.DA) did not support the version of the complainant/victim, because swa bs sent by the MO were not stained with semen. Goes on to maintain that the prosecution has, therefore, utterly failed to connect the accused with the offence alleged by the prosecution side as there is no direct evidence available on record. The learned counsel further argued that the semen matching was not got done by the prosecution. The prosecution prosecution cannot rely upon the weakness of the defence. Learned counsel further argued that the accused/appellants are entitled to benefit of doubt because benefit can be given even on a single circumstance if it creates reasonable doubt in the prudent mind.
9. On the other hand, learned D.P.G. assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants on the ground that the prosecution has fully proved the case against the appellants; that the learned trial Court while acquitting the appellants u/S. 367-A, PPC has already dealt with the appellants with a lenient view, therefore, the appellants does not deserve further leniency. Their appeal may be dismissed.
10. I have heard the learned counsel for the appellants, learned Deputy Prosecutor General as well as learned counsel for the complainant and gone through the record.
11. In order to determine, whether the prosecution has established the guilt to the hilt? To answer the said question, I propose to weight the prosecution evidence and defence version in the scales of justice, keeping in view the prescribed law and further keeping in view the contentions of both the sides in juxta position. The entire unfortunate incident revolves around the statement of Abdul Salam victim/prosecutrix (PW-.1). From perusal of impugned judgment passed by the learned trial Court it is evident that on same set of allegations, statements, police report and the material, which was available at the time when the learned trial Court took cognizance and passed the impugned judgment has acquitted the appellant under Section 367-A, PPC, hence, the case of the prosecution has become as doubtful. I have also seen the site-plan (Ex.CW1/3) made without scale by the Investigating Officer on 26-05-2008. There is no indication as to who pointed the various points to the police officer and from which position the alleged eye-witnesses saw the occurrence and from which place victim was collected by whom. Even the distances are not mentioned. There is yet another circumstance of the case that the accused were apprehended on 05-06-2008 and potency test of the appellants were not done. Neither DNA test was got conducted nor any report regarding semen grouping was obtained. In order to prove the guilt against the person in the case of sodomy like the case in hand, prosecution is required to prove that a person who is charge with that offence is duly capable of committing the offence and is potent for the performance of intercourse, which is absolutely lacking in this case and said test of accused was essential to prove the case, hence, this negligence, for prosecution case caste serious doubt in the entire prosecution case. Admittedly, that the injuries on the anus of the victim are minor. MLC did not explain regarding penetration of a human organ into the anus of the victim. Anal swabs which were sent to the, office of Chemical Examiner were not found stained with blood or semen. So the prosecution has also lacked the support of medical evidence to prove sodomy with the victim by the accused.
The evidence placed on record and the manner in which the investigation was undertaken and the prosecution proceedings handled does not inspire confidence. The absence of medical evidence has given a fatal blow to the prosecution case. Reliance is placed upon Muhammad Aslam vs. Shakeel Liaqat (2006 SCM R 348).
12. It is settled by now that there if there is a single circumstances which creates reasonable and cogent doubt regarding the prosecution case the same is sufficient to extend benefit to the accused, whereas, the instant case is replete with circumstances which have rendered serious doubts about the prosecution story. In the case of Tariq Peruez vs. The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan at page 1347, was pleased to observe as under: "... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right."
13. After considering all the pros and cons of the case, I have crime to an irresistible conclusion that the prosecution has failed to prove its case against the appellants beyond any shadow of reasonable doubt. The prosecution has relied upon discrepant, contradictory and flimsy evidence which is also full of dishonest improvements while implicating the accused and carving the story of their own choice based on their whims. In the light of above discussion, I am of the considered view that the prosecution could not discharge its liability to prove the case against the appellant successfully. Consequently, while extending benefit of doubt to Imtiaz Hussain and Muhammad Azhar, appellants, Crl. Appeal No, 287 of 2014 is allowed. The conviction and sentence of the appellants u/S. 377, PPC, passed by the learned trial Court vide judgment dated 11-06-2014, is set aside and they are acquitted of the charge. They are on bail, their bail, their bail bonds are discharged.