MANZOOR AHMAD MALIK, J.---Crl. M.A. No, 1160 of 2016: For reasons mentioned in the application, the same is allowed and delay in filing the jail petition is condoned.
2. Having faced trial in case FIR No, 93 dated 09.05.2013, offence under sections 365-B, 376(ii), P.P.C., registered at Police Station City Pindi Bhattian, District Hafizabad, the petitioners were convicted under sections 365-B and 376(ii), P.P.C. and sentenced to imprisonment for life under each of the aforesaid provisions. They were also directed to pay fine of Rs,100,000/- and Rs, 200,000/- each under the aforesaid provisions respectively, in default whereof to undergo SI for six months.. The criminal appeals filed by the petitioners against their conviction/sentence were dismissed by the learned Lahore High Court, Lahore, vide the impugned judgment. Hence. the instant jail petition for leave to appeal.
2. Facts of the case as divulged from FIR (Ex.PD) are given in Para 2 of the impugned judgment, which read as under:- "2. Precisely, the facts of the case, as contained in the application (Ex.PC) moved by the complainant are that on 09.05.2013 at about 8.00 a.m. Mst. Faiza Bibi aged 15 years went to Madrasa Dar-ul-Aloom for studying Holy Quran, when she did not return to home, her father Munir Ahmad complainant (PW-5) started her search. One Muhammad Saleem son of Muhammad Aslam met him and told that Mst. Faiza Bibi has been abducted by Javed Iqbal and Muhammad Nadeem alias Ghulam Shabbir and they took her towards Hinduana on a motorcycle. Munir Ahmad complainant (PW-5) along with Muhammad Saleem. (PW) proceeded towards Hinduana and when they reached near Canal Jhang Branch, they saw Javed Iqbal accused committing Zina with Mst. Faiza Bibi while Nadeem alias Ghulam Shabbir was standing there. On seeing Munir Ahmad complainant (PW5) and Muhammad Saleem PW, both the accused ran away. On the written application (Ex.PC) filed by Munir Ahmad complainant (PW-5), FIR (Ex.PD) was registered by the police."
3. We have heard learned counsel for the petitioners, learned Additional Prosecutor General at length, and have perused the available record with their assistance.
4. The FIR in this case was registered on the written application (Ex.PC) of the complainant Munir Ahmad, who is the father of the victim Mst. Faiza Bibi. Munir Ahmad appeared before the learned trial Court as PW5. The star witness in this case is Mst. Faiza Bibi, the victim herself who appeared before the learned trial Court as PW6. First of all, we take the evidence of complainant Munir Ahmad. The complainant, in the FIR, did not mention the time when her daughter used to go to the Madrassa, at what time she used to return, at what time he was told by given up PW Muhamniad Saleem that Mst. Faiza Bibi was allegedly abducted by the petitioners and at what time he and Muhammad Saleem (given up PW) reached at the place of occurrence. However, while appearing before the learned trial Court, he stated that his daughter on the fateful day was going to Madrassa at 8.00 a.m.; that when she did not return home for a long time, he started searching her; that Muhammad Saleem met him and told him that the petitioners while riding on a motorcycle had abducted Mst. Faiza Bibi; that he along with Muhammad Saleem chased the petitioners on a motorcycle and when they reached near Jhang Branch Canal, they saw petitioner Javed Iqbal committing rape with Faiza Bibi, whereas petitioner Nadeem @ Ghulam Shabbir was standing near him. In his cross-examination, the complainant clarified that his daughter used to go to Madrassa at 8.00 a.m. and used to return home at 9.00 a.m. He further stated that he started search at 9.15 a.m. when Saleem met him at Bund Road. Interestingly, the complainant neither in the FIR nor before the learned trial Court stated that he went to Madrassa to inquire as to where his daughter was and why she had not returned to her home despite lapse of stipulated coaching time? Such conduct of the complainant seems quite unnatural. It is the case of the complainant/prosecution that when Muhammad Saleem imparted information to the complainant that her daughter had been abducted by the petitioners, he and Muhammad Saleem immediately went on chasing the appellant and searching the abductee. He admitted in his cross-examination that distance between Bund Road to Village Hinduana was 7/8 kilometers and two villages were in between and the place where petitioner Javed Iqbal was allegedly committing rape with his daughter was at a distance of 3/4 kilometers from Village Hinduana; that he reached at the place of occurrence where rape was being committed with his daughter at 9.45 a.m. He also admitted in his cross- examination that before reaching the place of occurrence there were crops and bank of canals as well; and that at the time of reaching Jhang Branch Canal, he did not inquire from any person about his daughter. If this is so, the story put forth by the complainant in the FIR and before the learned trial Court seems improbable because as per his own case, there were two villages situated in between Bund Road and Hinduana, and there were crops and bank of canals in the way. In these circumstances, it does not appeal to mind as to how the complainant reached at the exact place of occurrence at a time when the petitioner Javed Iqbal was allegedly committing zina with the victim.
5. The star witness in this case is the victim Mst. Faiza herself. She appeared before the learned trial Court as PW6. She admitted before the learned trial Court that the street from where she was abducted by the petitioners was a thoroughfare. She also admitted that in between place of abduction and place where rape was committed, there were two villages and some portion of populated area of Pindi Bhattian. In these circumstances, the story of her abduction at the hands of the petitioners on a motorcycle does not appeal to commonsense, particularly when she herself stated before the learned trial Court that at the time of her abduction, she raised hue and cry.
Apart from this, we have observed that her statement before the learned trial Court is replete with improvements/contradictions which have duly been highlighted by the defence. In her cross examination, she stated that she was medically examined in DHQ Hospital Hafizabad on 10.05.2013, whereas the occurrence allegedly took place on 09.05.2013. The doctor who medically examined the victim on 10.05.2013 is Dr. Faiza Butt who appeared before the learned trial Court as PW9. She (PW9) in her opinion stated that hymen was freshly ruptured. She further observed that vagina admitted one finger easily but admission of second finger was difficult and painful. She, in her cross-examination, further stated as follows:- ....The bleeding observed by me on the hymen may be I or 2 hours. Volunteer that bleeding may he observed after two hours it is incorrect that I have not observed the edges of hymen of victim and the bleeding may be due to menstruation. The smell of blood due to menstruation is of different kind.
6. It is the case of the victim Mst. Faiza before the learned trial Court that both the petitioners committed rape with her on 09.05.2013. However, it is clearly evident from the evidence of the doctor, as alluded to herein above, that she medically examined the victim on 10.05.2013 at 4.45 p.m.; that the hymen was freshly ruptured and that the duration of bleeding on the hymen might be one-or two hours. All these factors do not coincide with the time of the occurrence as alleged by the victim. It has further been observed by us that Shalwar of the victim, she was wearing at the time of occurrence was neither produced before the investigating agency or before the doctor and the doctor had not given any opinion about the same having any stain of blood or semen, which is evident from the evidence of doctor (PW9). This fact is also established from the testimony of the victim when she denied the suggestion that after registration of FIR she proceeded to her house, rather she stated that she remained in the police station after registration of FIR till she was medically examined. In these circumstances, it seems strange as to why the Shalwar, the victim was wearing at the time of occurrence was not produced before the doctor. All these circumstances cast serious doubts on the veracity of prosecution case against the petitioners and the premium of such unexplained lacunas in the prosecution case must go to an accused. We, therefore, have no manner of doubt in our mind that the prosecution has failed to prove its case against the petitioners beyond reasonable doubt.
7. For what has been discussed above, the instant jail petition is converted into an appeal and the same is allowed. The impugned judgments of the learned Courts below are set aside. The appellants Javed Iqbal and Ghulam Shabbir are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other criminal case.