SYED MUHAMMAD FAROOQ SHAH, J.---This is an appeal against impugned judgment dated 12.10.2015, in FIR No. 286/2012, under section 376(i), P.P.C., registered at P.S. Gulistan-e-Johar, Karachi, whereby the learned 4th Additional Sessions Judge, Karachi (East), convicted the appellant and sentenced him to undergo R.I. for 12 years and awarded fine of Rs. 50,000/- in lieu thereof, the appellant to suffer R.I. for three months more. The impugned judgment has been assailed on the facts and grounds averred in the memo. of appeal. The appellant has prayed to set-aside the conviction/sentence and acquit him from the charges leveled against him.
2. Briefly stated facts as contained in the FIR are that complainant Mst. Ayesha daughter of Saeed Khan (accused) lodged FIR at P.S. Guliitan-e-Jauhar, Karachi, stating therein that she used to reside in House No. L-192, Hussain Hazara Goth, Block-11, Gulshan-e-Iqbal, Karachi, with her parents.
She was student of Second year Intermediate. Two weeks before when she was sleeping in her room along with her brothers and sisters, her real father Saeed Ahmed came in her room at about 3:00 a.m. (night) and committed excess with her. Prior to this about four years back her father after giving her sleeping pills in tea committed excess with her. She disclosed about the said incident to her mother Mst. Shamim, but she did not believe, therefore, she put her hand on Holy Quran, thereafter her mother believed her. Police after lodging the FIR arrested the accused and after completing usual investigation challaned the accused/appellant in the Court of law.
3. On submission of charge sheet, compliance of Section 265-C, Cr.P.C. was made and thereafter the charge was framed, to which the appellant pleaded not guilty and claimed trial. After framing of charge, the prosecution examined PWs Complainant Aisha Saeed, her Mother Mst. Shamim, MLO PW Dr. Rohina Hassan beside depositions of other formal PWs/police officials.
4. Points for determination are that as:--
(i) as to whether the impugned judgment is sustainable in law and (ii) whether the prosecution has succeeded to prove its case beyond shadow of reasonable doubt?
5. On the above points, I have scanned the impugned judgment and evidence brought on the record with the able assistance of learned Prosecutor.
6. Ocular account of prosecution rests upon Complainant/PW4 Aisha and her mother Mst. Shamim (PW1). By leveling wild allegations on her real father/accused, she (P.W.4) has corroborated the, contents of FIR to some extent as in FIR she had stated about excess of his father since last four years, after administrating her sleeping pills and she disclosed such fact to her mother; however, she did not state in her deposition regarding four years excess of her father after administrating her sleeping pills. Complainant/PW Aisha stated in her examination-in-chief that she proceeded along with her mother to the Police Station where she lodged FIR but her mother had not supported her such version in her evidence.
7. Her mother Mst. Shamim was declared hostile by the prosecution, who stated in her deposition that her daughter informed her that accused had attempted to commit some excess with her. She further stated that their house is consisting upon two rooms, one was occupied by a tenant and in another room her children were residing. She has further stated that her daughter wanted to marry some boy and her husband (accused) scolded his daughter that she can not marry with that boy, then her daughter said that she wants freedom as she wants to marry with said boy. By refuting the allegations of PW Aisha, her mother PW Mst. Shamim further stated that her husband (accused) scolded her and asked her not to go outside the house and this quarrel continued. She further stated that her daughter (PW Aisha) was doing nursing job, one day she came late upon which, her husband (accused) scolded her; she also used to go for tuition and her husband (accused) discontinued her tuition and disallowed her to go outside the house and for 2/3 days, her husband (accused) confined her inside the house; on which, her daughter resisted and said why the accused confined her and thereafter she lodged this case against her husband (accused). She further stated in examination-in-chief that she disclosed to the police that she had not witnessed anything but her daughter has narrated these facts to her. In her cross-examination conducted by the defence Counsel PW Mst. Shamim, mother of alleged victim, stated that "It is also fact that there is no mention of scolding of my husband as my daughter has not allowed to record my statement myself. It is also fact that since my daughter has not allowed me to give my statement at my own accord, as such, there is no mention about taking tuition of by daughter" .
She further stated in cross, conducted by the prosecution that her daughter disclosed that her father (accused) had tried to commit excess with her. She stated that her statement under Section 161, Cr.P.C. has not been recorded as per her dictation. She has vehemently denied the suggestion of prosecution that she was deposing falsely in order to save her husband.
8. PW5 MLO Dr. Rohina Hassan did not support the Complainant Aisha, by stating that "at the time of examination she was disoriented due to effect of sedition as she had taken 25 tablets of Relaxipan two days before. Her personal hygiene was poor. She had changed her clothes and washed herself. There was an incised wound over left palm which was skin deep which she had inflicted herself due to her severe depression and up-setness". PW Dr. Rohina Hassan opined that based upon clinical findings, she was not virgo intacta. For any fresh act, opinion was kept reserved till the report from chemical and DNA analysis but such reports were not found placed on record. In reply to a cross-question, Dr. Rohina stated that "It, is fact that neither I procured cloths of the victim nor the same were produced to me by the victim at the time of medical examination".
9. Complainant/PW Aisha, in cross-examination, stated that she got married and went to Punjab.
She further stated that the incident firstly took place about four years before the lodging of FIR but she did not lodge any complaint in respect of such incident. She further admitted that except her mother she did not disclose the act of Zina by her father to any other relative; that there are two rooms in the house and in the night of alleged incident, there was one cot in the room and she was sleeping on the floor along with her sister, aged about 15 years, elder brother of 13 years and younger one of five years of age. She further stated in cross that "when accused committed Zina with me, my sister and both brothers woke up but due to the fear of accused, who used to beat them, they did not extend any resistance. 1t is correct that the fact of awaking up and seeing the incident by my brothers and sister are not mentioned in the FIR. It is correct that I have not stated such fact in my examination before the court today as well as in Ex. 7/D (Statement under section 164, Cr.P.C). It is correct to suggest that at the time of lodging FIR I used to attend regular classes in Coaching Tuition Center as well as perform service as lady health worker. It is correct that such facts I have not disclosed in the FIR" She further admitted in cross that "at the time of lodging FIR I had swa llowed 25 tablets for suicide at my own. It is correct that at the time of lodging FIR and later on arrest of accused, I was married on 18.05.2013 in Punjab. 1n the period between release of my father and the date of marriage, I remained residing in the house of Ashique Hussain who later on arranged marriage between me and his son. 1n the incident two weeks prior to the lodging of FIR my father captivated me from 03:00 a.m. till Fajar Prayer time. My mother was present in the house but she was in other room (occupied by a tenant as per statement of PW Mst. Shamim). I made hues and cries for call my mother. Vol Says, accused locked my mother in the other room. There is a common wall between the two rooms. My father came inside the room at about 03:00 a.m. My other brothers and sister have not disclosed the incident to my mother".
Note: Underline is mine for emphasis.
10.Obviously, by no stretch of imagination, the afore mentioned reproduced evidence may be considered confidence inspiring, trustworthy and reliable; particularly, in view of aforementioned reproduced cross-examination of the complainant/victim, who is the only witness of this case. The ocular account based on sole testimony of complainant, is found unbelievable by a prudent mind; more particularly, in her evidence, she improved her statement made in the FIR and in her statement recorded under section 164, Cr.P.C. Even otherwise, apparently the story narrated by the complainant is not in conformity with the medical evidence or to the evidence of her mother PW Mst. Shamim, reproduced above.Astonishingly, learned trial Court passed the impugned judgment on surmises, conjectures and supposition by ignoring the aforementioned part of evidence of prosecution. The observation of the trial Court that, "in our Islamic Society, no daughter can level heinous nature allegation viz. Zina against her father till the said act has not been committed upon her"; the learned trial judge has also seriously erred to observe that the complainant/victim and other PWs remained very much consistent in their evidences and the medical evidence support them. The trial Court has completely ignored the aforementioned part of evidence, by considering the sole testimony of alleged victim and considering the quality and credibility of evidence in favour of the complainant. Learned trial Court has also erred to base the judgment with reason that neither any enmity has been alleged against victim girl nor it has been alleged that she had any motive to falsely implicate the accused and that nothing favourable to defence or damaging to prosecution case has been elicited; though the false implication by narrating a concocted story by the victim was not supported by her mother, which was sufficient reason to acquit the accused.
Perhaps, the learned judge could not judge the reasons of false implication of a father, by ignoring the evidence of a mother and cross of the daughter (victim), as supra.
11.A perusal of impugned judgment further reflects that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused.
12.Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. There are so many circumstances, discussed above are creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to the golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
13. For the foregoing reasons, I reached at the irresistible conclusion that evidence adduced by the prosecution falls short of disclosing the charged offence against the appellant/accused. In the circumstances, by short order dated 07.04.2017, reproduced hereinbelow, the appeal was allowed; conviction and sentence awarded to the appellant/accused was set aside and these are its reasons.
"I have gone through the entire evidence adduced by the prosecution before the trial Court with able assistance provided by Ms. Rahat Ehsan, learned APG. Record reflects that the sentence of 12 years' R.I. and fine of Rs. 50,000/- in lieu of which, appellant shall undergo further R.I. for three months under Section 376, P.P.C. was awarded. The accused is confined in jail, being a convict, since the date of pronouncement of judgment. The impugned judgment is assailed in the captioned appeal filed by the appellant. I have carefully scanned the prosecution evidence, which cannot be considered consistent; more particularly, PW1 Mst. Shamim, mother of the victim PW4 Mst. Aisha, had not supported her deposition. There is no independent corroboration to the statement of victim. The medical evidence cannot be considered in conformity with the sole testimony of alleged victim i.e. PW4 Mst. Aisha, which is not trustworthy, inspiring confidence, in view of contradictory version of Medico Legal Officer. Suffice it to say that the impugned judgment is not sustainable in law, is hereby set-aside. The appellant is acquitted from the charge of this case. The concerned Superintendent Jail is directed to release the appellant forthwith if he is no more required in any case. Detailed reasons are to be followed".
M.I.T-II is directed to transmit copy of this judgment to the author of impugned judgment Mr. Inam Ali Kalhoro, at an earliest.