TARIQ SALEEM SHEIKH, J.---This appeal is directed against judgment dated 21-1-2014 passed by the learned Additional Sessions Judge, Burewala, whereby he convicted and sentenced the Appellant in case FIR No,382/2011 dated 28-6-2011 which was registered at Police Station Gaggo Burewala, District Vehari, for offences under sections 365-B/376, P.P.C.
2. The prosecution case as set out in the FIR Ex.PA is that Muqadas Batool (PW-4), the daughter of Complainant Khurshid Hussain (PW-5), was a Class-VIII student. On 23-5-2011 at about 8.00 a.m., she went to her school but did not return home in the afternoon at the end of her classes. When the Complainant went out to search for her, he met PWs Waris All Shah and Muhammad Boota who told him that at 8.30 a.m. in the morning they had seen the Appellant taking her towards Gaggo Adda on gunpoint. On this information, the Appellant approached the Panchayat to force the Appellant to return Muqadas Batool (PW-4) to him. The Appellant initially made some excuses but finally returned her through the Panchayat on 26-6-2011. After Muqadas Batool (PW-4) came home, she told the Complainant (PW-5) that the Appellant had abducted her on gunpoint and had been raping her.
3. The case was investigated by Tanveer/ASI (PW-7). He found the Appellant guilty and submitted his report under Section 173, Cr.P.C. accordingly. The learned Additional Sessions Judge summoned the Appellant and indicted him on 8-10-2011. The Appellant pleaded not guilty to the charge and claimed trial.
4. The prosecution examined eight witnesses to prove its case. These included: Abbas Ali-138/HC (PW-1), Waqas Yaseen 1390/C (PW-2), Dr. Muhammad Fayyaz Saleem (PW-3), Victim Muqadas Batool (PW-4), Complainant Khurshid Shah (PW-5), Waris Ali Shah (PW-6), Tanveer ASI/I.O (PW-7) and Lady Doctor Sadia Aslam (PW-8). The learned prosecutor gave up Muhammad Boota being unnecessary and closed the prosecution evidence on 1-12-2013.
5. After the prosecution was through with its evidence, the learned trial Court recorded the statement of the Appellant under Section 342, Cr.P.C. and confronted him with all the incriminating material that was brought against him during the course of trial. While replying to a question as to why this case was registered against him, the Appellant stated that he was a personal servant of the Complainant and was not paid salary for two years. When he requested the Complainant to pay his dues, he refused and instead lodged a false case against him. The Appellant did not record statement under Section 340(2), Cr.P.C. He also did not produce any witness in his defence.
6. On the conclusion of the trial the learned Additional Sessions Judge, vide judgment dated 21-1- 2014, convicted the Appellant under Sections 365-B and 376, P.P.C. and sentenced him as under:-- i) Under Section 365-B, P.P.C.: Life imprisonment alongwith fine of Rs,20,000/-. In the event of default in the payment of fine, one month S.I. ii) Under Section 376, P.P.C.: Ten years S.I. alongwith fine of Rs,20,000/-. In the event of default in the payment of fine, one month S.I.
Both the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to the Appellant. It is this judgment which has been impugned in the instant appeal.
7. Learned counsel for the Appellant contended that the Appellant was innocent and had been falsely implicated in the case. The prosecution had failed to prove that the Appellant had abducted Muqadas Batool (PW-4). Further, there were material contradictions in the depositions of the prosecution witnesses and that the medical evidence did not corroborate the ocular account. He next argued that Muqadas Batool (PW-4) was not recovered from the Appellant or at his instance.
And lastly, motorcycle was not recovered from the Appellant which could connect him with the crime.
8. On the other hand, the learned Assistant Prosecutor General assisted by the learned counsel for the Complainant vehemently controverted the above-noted contentions of the learned counsel for the Appellant and submitted that the prosecution had proved its case beyond any shadow of doubt.
9. Arguments heard. Record perused.
10.Admittedly, Complainant Khurshid Hussain (PW-5) was not an eye-witness of this case: He did not see the Appellant abducting Muqadas Batool (PW-4) or committing rape with her. As such, his deposition is not very much relevant. The ocular account was furnished by the victim, Muqadas Batool (PW-4), herself. She deposed in her examination-in-chief that the Appellant had abducted her on gunpoint when she was going to school on 23-5-2011. She stated that he made her sit on his motorcycle and took her to Chak Mianwala where he confined her in a room and raped her.
However, it becomes difficult to believe her allegations when she disclosed in her cross- examination that it took the Appellant three to four hours to reach Chak Mianwala and the Appellant was himself driving the motorcycle " with both hands" and they passed through various thickly populated areas, including Lorry Adda and the railway crossing which was situated in front of Police Station Gagoo. Surprisingly, she did not raise any alarm or call for help at any point of time during that long journey. Again, during her alleged confinement in the house (which admittedly continued for about a month) she moved freely in and out of the house.
11. So far as Waris Ali Shah (PW-6) is concerned, he was a Wajtakar witness. Further, his conduct in the matter was not natural. He claimed that he had seen the Appellant going with Muqadas Batool (PW-4) at 8.30 a.m. on 23-05-2011 which was school-time. He deposed that he knew that the Appellant had abducted her but still he did not make any effort to stop him. He also did not inform Khurshid Shah (PW-5) immediately. According to him, he went to his house but since he was not there he came back and got busy in his own chores. This PW could not corroborate the allegation that Muqadas Batool (PW-4) was abducted on gunpoint.
12. The prosecution's stand was that Muqadas Batool (PW-4) was recovered through the mediation of the Panchayat. However, it did not bring any member of the Panchayat in the witness-box who could testify that Muqadas Batool (PW-4) was recovered from the Appellant. The Investigation Officer, Tanveer/ASI (PW-7), deposed that he did not interrogate any member of the Panchayat with whose efforts the abductee was returned to her father, Khurshid Shah (PW-5). He also did not join any councillor or headman of the village to verify the occurrence. Tanveer/ASI (PW-7) also stated that he did not visit the place where the Appellant had allegedly taken Muqadas Batool (PW-4), kept her for one month and committed rape with her. He also did not interview any witness of that locality to verify whether that place was owned by the Appellant or was otherwise available to him for use. As already discussed, Muqadas Batool (PW-4) had stated in her cross-examination that she had been going out in the fields during the time she was in the custody of the Appellant. It is quite astonishing that nobody met her or at least saw her during that long period. The prosecution did not produce any witness in this respect. All these facts cast serious doubt on the prosecution version.
13. The prosecution claimed that during the course of investigation .12-bore carbine P-1 alongwith live cartridge P-2 were recovered from the Appellant which he used in the commission of the crime.
Investigation Officer Tanveer/ASI (PW-7) did not associate any independent witness with the recovery proceedings which was mandatory under Section 103, Cr.P.C. He did not even invite Haji Mukhtar Ahmad, the person from whose property the said recovery was made, to join the said proceedings. No doubt police witnesses are as good as any other witness but the question remains as to why the provisions of section 103, Cr.P.C. were not complied with. There were no exceptional circumstances to dispense with them. When this omission is put in juxtaposition with other snags in the prosecution case it would be seen that the above recoveries do not lend any credence to the prosecution case.
14.The motorcycle allegedly used in the occurrence could be a very strong incriminating evidence against the Appellant. However, it was not recovered. The prosecution thus missed an important catch.
15. Now I take up the medical evidence. Muqadas Batool (PW-4) was examined by Lady Doctor Sadia Aslam (PW-8) on 30-6-2011. Her MLC No,19/2011 dated 30-6-2011 is Ex.PJ. According to her, when she examined Muqadas Batool (PW-4) she did not observe any tears, laceration, bruises, abrasions, swellings or hyperemia. Her hymen was old ruptured but there were no seminal stains.
During her cross-examination, she specifically stated that "no symptoms of Zina were present at the private parts of the victim if a virgin girl is subjected to rape." Thus, the medical evidence brought forth by the prosecution does, not support its case.
16.Muqadas Batool (PW-4) had already changed her clothes when she got herself examined by the Lady Doctor. She did not present her clothes even to the Investigation Officer which were a material evidence that could be used against the Appellant. These were particularly important in the instant case because Muqadas Batool (PW-4) was alleged to have worn them for whole one month during which she was raped time and again.
17. Last but not least, it is noticed that there was a delay of 35 days in lodging the FIR. Generally speaking, adverse inference may not be drawn against the prosecution on this sole ground because in cases like the one in hand the victim and her family members are hesitant in reporting the matter to the police immediately. Reliance is placed on "Ghulam Husain Soomro v. The State"
(PLD 2007 SC 71), "Muhammad Imran v. The State and others" (2014 PCr.LJ 456) and "Ihsanullah alias Sanu v. The State through Additional Advocate General and another" (2015 YLR 2592). However, in the instant case it has been observed that Waris Ali Shah (PW-6) stated in his cross-examination that during the time Muqadas Batool (PW-4) was in the confinement of the Appellant, he and Complainant Khurshid Shah (PW-5) had been visiting the police station and they also moved an application to the police. Therefore, there was an inordinate delay in registration of FIR which remained unexplained.
18.The offences alleged against the Appellant are indeed heinous. However, he cannot be punished on this ground alone. In "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554), the august Supreme Court of Pakistan held:-- "Violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which is considered abhorrent in any civilized society; any language falls short of vocabulary to condemn such heinous act and cases of this taxonomy must be strictly construed and dealt with. However, at the same time under criminal jurisprudence for the safe administration of criminal justice, the courts are required to follow certain settled principles, such as the innocence of the accused must be presumed, till he is proved to be guilty; sifting the grain out of the chaff; the defence may take a number of pleas and even if all are shown to be false, yet it is the duty of the prosecution to prove its case to the hilt; better that ten guilty persons escape than that one innocent suffer...These are certain salutary principles of the criminal justice system which should be adhered to by the courts, in letter and spirit and there is no exemption to these rules, even in gang rape cases for otherwise, due to departure therefrom, the innocent person may suffer. However, at the same time the courts should keep in view that in such a class of cases, usually independent ocular evidence is not available, therefore due weight should be attributed to the statement of the victim buttressed by medical evidence, and strong attending circumstances, shall suffice to warrant the conviction."
19. On reappraisal of the evidence, I have found that the prosecution has not been able to prove its case against the Appellant beyond reasonable doubt. The ocular account, including the testimony of the victim Muqadas Batool (PW-4), does not inspire confidence. Further, the medical evidence also does not corroborate it. As such, the Appellant is entitled to benefit of doubt not as a matter of grace but as of right. Reliance is placed on "Nadeem Bhatti alias Sanni v. The State" (2016 PCr.LJ 558) and the following excerpt from the judgment of the Hon'ble Apex Court delivered in "Ayub Masih v. The State" (PLD 2002 SC 1048) which has been quoted therein:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. 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 better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v. Mushtaq Ahmad" (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. 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 "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
20. For the above reasons, I allow this appeal and set aside the impugned judgment dated 21-01- 2014. The Appellant is acquitted of the charges. He is in jail. He shall be released forthwith if not required to be detained in any other case.