Appellant Riaz Hussain challenged his conviction and sentence through this Criminal Appeal. He was convicted by learned Additional Sessions Judge, Muzaffargarh in case FIR No, 256 dated 23.06.2008 registered under Section 376(i), PPC at Police Station Shah Jamal District Muzaffargarh vide judgment dated 30.07.2015.
2. At conclusion of trial, appellant was convicted and sentenced as under:-- Convicted under Sections 376(i), PPC and sentenced to rigorous imprisonment for twenty years and imposed fine of Rs, 100,000/-. In case of non-payment of fine to further undergo six months S.I.
Benefit of Section 382-B Cr. P.0 was extended to appellant.
3. As per prosecution, Mst. Farzana complainant (PW-3) was living at the lime of occurrence in the house of her father. At that time, she was learning tailoring and sewing. clothes with Mst. AmeerMai.
About three months prior to lodging FIR, she went to the house of Ameer Mai (co-accused) in routine. Riaz appellant come in the house of Ameer. Mai. She was also sitting with Ameer Mai in her house. They made conversation with each other and after a while sent her in the room in order to fetch some clothes. When she went into the room, Riaz accused came there, he locked the door from inside and threatened her to keep silent otherwise he will kill her. She remained silent whereupon Riaz committed zine with her. Mst. Ameer Mai had intention in commission of rape by Riaz with her and she facilitated him in commission of forcible rape with her. After investigation, report under Section 173 Cr. P.0 was submitted before the trial Court. Charge was framed against the appellant and his co-accused, to which they denied and claimed trial. Thereafter, prosecution evidence was recorded. Statement of appellants were also recorded under Section 342 Cr. P.C, and at conclusion of trial, appellant was convicted and sentenced as mentioned above whereas his co-accused Mst. Ameer Mai was acquitted of the charge, hence, this criminal appeal.
4. Contention of learned counsel for appellant is that appellant has been falsely implicated in this case and that the PWs could not remain consistent while facing cross examination; that FIR is delayed one which speaks volumes; that there are material contradictions in the deposition of PWs; that the prosecution had failed to prove charge against appellant but learned trial Court convicted him on the basis of surmises and conjectures ignoring the facts established on the record.
5. Learned Deputy District Public Prosecutor has supported the impugned judgment, opposed this appeal and prayed for its dismissal.
6. Heard. Perused.
7. In order to prove charge against the appellant, alleged victim Mst. Farzana Bibi appeared before the Court as PW-3. It is worth noticing that alleged incident had taken place three months prior to registration of FIR. As per record, she was medically examined on 24.6.2008 but no mark of violence was seen on her body; hymen shows old healed tears; vagina is elastic and admits two fingers loosely and victim seems to be habitual. In the case in hand the matter was reported with delay which has not been reasonably explained for the reason that the date of occurrence in the instant case remained mystery throughout for the reason that first of all at the time of lodging of FIR, Mst.
Farzana victim stated before the police that the occurrence took place one month prior to the FIR and on next of lodging FIR and at the time of her medical examination as one and half month prior to FIR and finally in her supplementary statement dated 03.07.2008 as three months prior to the FIR.
Admittedly, there is no eye-witness of the occurrence. Statement of victim is shaky, contradictory on material points and highly unbelievable whereas statement of Mst. Maryam PW4 (mother of victim) is based on hearsay evidence and it is well settled law that hearsay evidence is no evidence in the eye of law. Complainant stated in her cross examination that Riaz Hussain was not known to her whereas her MLC speaks otherwise. The ocular account furnished by the complainant and PW-4 does not inspire confidence as it is intrinsically week, Medical evidence also does not support the prosecution version in any manner. It is highly unsafe to maintain conviction recorded against appellant on such type of evidence in a case of serious nature.
8. The story as narrated by complainant is implausible and does not sound logical. Law is well settled that it is duty of the prosecution to prove charge-against the accused beyond reasonable doubt. Benefit of doubt will always go to the accused.
9. For the reasons recorded above, criminal appeal in hand is allowed, conviction and sentence recorded by learned trial Court against appellant through Impugned judgment, is set aside.
Appellant Riaz Hussain is acquitted of the charge by extending benefit of doubt. He is in jail, he be released forthwith if not required in any case.