Through the instant appeal under Section 410, Cr.P.C. Mehboob (appellant) has challenged the vires of judgment dated 30.4.2011 passed by learned Additional Session's Judge, Layyah in a trial held in case FIR No, 207 dated 05.09.2007 registered under Section 376, PPC registered at Police Station Kot Sultan, whereby he was convicted and sentenced as under: Under Section 376, PPC to undergo R.I twenty five years with fine of Rs, 1,00,000/- and in default of payment of fine to further undergo six months S.I.
The benefit of Section 382-B, Cr.P.C. to the appellant was also extended."
2. Succinctly stated the facts of the prosecution cilse as unfolded by Uzma Bibi (PW-2) in FIR (Ex.PBI1) are to the effect that she along with her sister, namely, Aneela Bibi went outside the house to untie the cattle at about Asar vela on 1.9.2017; that one Nasreen Bibi served them with a glass of juice; that Aneela Bibi refused to accept it but Uzma Bibi drank the same; that thereafter Uzma returned to her house, tied the cattle and felt drowsiness and later on went to sleep; that at about midnight time, Mehboob and Muhammad Ramzan sons of Manzoor Hussain entered into the room and took her towards backside of her house; where Mehboob, accused committed Zina with her; that on her hue and cry, Perveen Bibi and Ghulam. Fareed came there and after noticing their arrival the accused persons fled away from the scene while lcaving behind Uzma Bibi in nacked condition and that she was medically examined from hospital situated at Kot Sultan where after, she moved an application for registration of FIR.
3. That on 5.9.2007, Uzma Bibi (PW-2) appeared before Muhammad Ashraf Riaz, SI (PW-5) and got recorded her statement (Ex.PB), which was reduced into writing and was sent to Police Station, Kot Sultan through Riaz Hussain Constable on the basis whereof FIR (Ex.PB/1) was registered. Thereafter, Muhammad Ashraf Riaz SI (PW5) proceeded to the crime scene and inspected the spot during which he also prepared rough site-plan (Ex.PD). On the same day, Uzma Bibi (PW-2) produced her clothes before Muhammad. Ashraf Riaz SI (PW5), which were taken into possession through recovery memo. (Ex.PE). He also recorded the statements of the witnesses under Section 161, Cr.P.C. and started searching the accused persons. He also collected two sealed envelopes, said to contain swa bs from lady doctor and forwarded one envelope each to Chemical Examiner, Multan and to Centre for Applied Molecular Biology for DNA analysis.
On 17.09.2007, Muhammad Ashraf Riaz arrested one of the accused, namely, Mehboob Ahmad (appellant) and got him medically examined on the following day. He took Mehboob accused and Uzma Bibi to Lahore for DNA test, which was conducted on 20.09.2007. After the completion of investigation, the report under Section 173, Cr.P.C. was submitted in the Court.
4. The prosecution, in order to prove its case against the appellant produced as many as eight prosecution witnesses which include Mst. Uzma Bibi (PW-2), the victim, Mst. Perveen Bibi (PW-3), the eye-witness of the occurrence, Lady Doctor Taahira Ferzana (PW-7) and Dr Faisal Raza Qaisrani, Medical Officer (PW-8), who medically examined victum and appellant and Muhammad Ashraf Riaz (PW-5), Investigating Officer, who conducted the investigation of this case. On the conclusion of prosecution evidence, Mehboob (appellant) was examined under Section 342, Cr.P.C. and in response to the question why this case against you and why PWs deposed against you", to which he replied as under: "I am innocent. 20-days prior to the registration of this case, the mother of the complainant namely Mst. Shaheen Bibi alias Sheena tiled an application against my father at PS Kot Sultan District Layyah stating therein that my father tried to-commit Zina with her. Said application was found false at, Police Station, so due to that grudge, the complainant and her,, sister Mst. Perveen Bibi made a fabricated story against me and got registered this false case."
On the conclusion of trial, the appellant was convicted and sentenced as aforementioned.
5. It is contended by the learned counsel that the occurrence took place on the night of 1.2.2007, whereas its detail was brought to the notice of police on 5.9.2007; that there is a delay of about 04- days in reporting the matter to police, which was not explained in the FIR; that the occurrence took place in the dark hours of night, however, no source of light was brought on record so as to exclude the possibility of mistaken identity; that the incident took place in a reasonably populated area however none from the vicinity was cited as witness; that according to prosecution case, the occurrence was witnessed by Perveen Bibi and one Ghulam Fareed however only the former appeared in the witness-box; that the ocular account furnished by the victim and PW-3 got no support from the medical evidence furnished by Dr. Tahira Farzana (PW-7); that even the DNA report is inconsequential in nature as the viginal swabs were not matched with the appellant; that during investigation, the appellant was found innocent by Muhammad Ashraf Riaz S.I; that the bare perusal of prosecution evidence, gives rise to a reasonable doubt, the benefit of which is to be extended to appellant and that the victim has effected compromise with the appellant and has no objection for his acquittal.
6. Though, Uzma Bibi (victim) while entering appearance before the Court has not opposed the acquittal of appellant, however, learned Law Officer strongly controverted the arguments advanced on behalf of appellant and submitted that though there is a delay in the registration of FIR, however, it is not fatal for the prosecution case; that the victim of case, in her statement before the Court saddled the appellant with the allegation of having committed her rape; that the eye- witness of the occurrence, namely, Perveen Bibi (PW-3) fully supplemented the statement of victim; that the case of prosecution is getting due support from the medical evidence, brought on record during trial; that as per DNA report the semen stains found on the trouser (shalwar) of victim matched with the appellant; that since the appellant and victim were previously known to each other, hence there is no question of any mistaken identity and that the prosecution successfully proved its case, hence, the instant appeal is liable to be dismissed.
7. Arguments heard; record perused.
8. The case of prosecution, so to speak, primarily hinges upon the statement of victim, namely, Uzma Bibi (PW-2) as well as the eye-witness,. namely, Perveen Bibi (PW-3) and the medical evidence furnished by Dr. Tahira Farzana (PW-7). The prosecution sought corroboration from the report of Chemical Examiner (Ex.PF) and DNA report (Ex.PG).
9. It emerges from record that the occurrence, which formed basis of the instant case took place at the odd hours of night falling in between 1st and 2nd September, 2007 in vicinity known as Mouza Sarishta Nashaib, Tehsil and District Layyah. The crime scene was situated at a distance of 12 miles from Police Station Kot Sultan, however, the matter was reported to police on 05.09.2007. From above it can safely be gathered that there is a delay of about four days in the registration of FIR, which was not explained in any manner by the prosecution. This feature gains more importance when seen in the context that though the victim was residing with her father and two brothers; however, none out of them opted to report this incident to police. Keeping in view our social and customary values, non-appearance of any male member of the family, before the police is giving rise to a reasonable suspicion.
10. A wade through the record of the case reveals that according to the complaint (Ex.PB), the occurrence was witnessed by sister of victim Perveen Bibi (PW-3) as well as one Ghulam Fareed.
However, during trial, the aforementioned Ghulam Fareed was given up and that too without assigning any explanation worth consideration. Since Ghulam Fareed was not related to the victim and was an independent witness, hence, his statement can safely be termed as best evidence.
Withholding of such natural and independent evidence is giving rise to an inference that had he been produced' during trial as witness, he would not have supported the case of prosecution. The aforementioned inference drawn by this Court is inconsonance with Article 129, Illustration (g) of Qanun-e-Shahadat Order, 1984. For advantage sake the foregoing provision 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, while attending somewhat similar proposition in the case of Muhammad Rafique, etc.. vs. 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-eShahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavorable to the prosecution"
11. A review of the statements of Uzma Bibi (PW-2) and Perveen Bibi (PW-3) reveal that in the afternoon preceding to the night of occurrence, Uzma Bibi was administered a glass of juice, which caused drowsiness to her. However, in support of such, accusation nothing was brought on record.
Even, Perveen Bibi (PW-3) uttered not a single word in support of the aforementioned, claim of Uzma Bibi (PW-2). It is further observed that as per stance of Uzma Bibi (PW-2), the appellant after committing trespass, took her at the back of house and then committed her rape. Such accusation, when seen in the context of the fact that Uzma Bibi (PW-2) was residing along with her four sisters and two brothers, it looks highly improbable. It is further noticed that during the thick of occurrence, Uzma Bibi (PW-2) raised hue and cry in full pitch, however, none from the vicinity except her sister and Ghulam Fareed (given up) attracted to spot. In this regard, an extract from cross-examination of Perveen Bibi (PW-3) is being reproduced below: "I woke up at hue and cry of my sister. She was highly making hue and cry."
12. 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 background, it is observed that the charge of rape can be established through the statement of 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 blood-stains 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 Tahira Farzana (PW-7) the medically examined the victim on 4.9.2007. A review of the evidence of Dr. Tahira Farzana (PW-7) unfolds that during examination no marks of violence were noticed either on the body of victim or at her vigina. Since, the victim was a grown up girl and was subjected to sexual intercourse against her will and more importantly when she was screaming loudly, hence is a necessary consequence her resistance should have led to some mark of violence on her person. Though, the victim claimed to be a virgin before the occurrence, however, the medical examination conducted by PW-7 revealed otherwise a she found her hymen absent with admitting two fingers easily From these circumstances, it can safely be concluded that the medical evidence is not providing due support to the case of prosecution.
13. I have also perused the report of Chemical Examiner (Ex-PF) as well as DNA report (Ex.PG).
Though, according to the Chemical Examiner the swabs taken from the person of victim were found to be stained with semen, however, no effort was made for its grouping so as to connect the appellant with the commission of crime. This Court has also adverted to the DNA report from which it divulges that the viginal swa bs of victim did not match with the appellant. Only some semen stains from her trouser (shalwar) matched with DNA profile of appellant. By no stretch of interpretation such DNA report can be held as conclusive to connect the appellant with the commission of crime.
14. The features mentioned above, coupled with the compromise arrived at between the parties, are found sufficient for setting aside the conviction awarded to the appellant. Resultantly, Criminal Appeal No, 486 of 2011 filed by Mehboob (appellant) is allowed and conviction and sentence awarded by the learned trial Court is hereby set-aside. The petitioner is on bail and as such his surety stands discharged from the bail bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.