SHAHID HAMEED DAR, J.---This criminal appeal arises from the judgment dated 13.1.2010, whereby learned Additional Sessions Judge, Mianwali convicted Sher Khan (appellant) under sections 354 and 457, P.P.C. and sentenced him to rigorous imprisonment for two years and three years, respectively with benefit of section 382-B, Cr.P.C., on conclusion of his trial in case-FIR No,157/07, dated 19.7.2007, registered for offences under sections 354, 457, 376, 511, P.P.C. at Police Station Wan Bachran (Mianwali). He was, nonetheless, acquitted of the charge under sections 376 and 511, P.P.C.
2. Precisely, the prosecution story as narrated by Kashif Nadeem (complainant/ P.W.1) in the FIR (Exh.PA/1) is that he and his family members slept at their house on 10.7.2007; it was at about 1.00 a.m., when Sher Khan (appellant) jumped into the house with an ill-intent and attempted to take away his wife Mst.Rehana Bibi, so as to violate her, who disliked it and raised a noise, whereon they all got up and caught hold of the intruder; they all beat him but he rescued himself and ran away.
He presented a written application (Exh.PA) against the appellant before the police on 16.7.2007, on the basis of which Sultan Ahmad SI (P.W.4) registered FIR (Exh.PA/1), at 5.30 p.m. on 19.7.2007.
3. On completion of investigation, report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the accused/appellant, who pleaded not guilty and claimed a trial, when indicted. The prosecution produced eight witnesses, namely, Kashif Nadeem (complainant/P. W . 1) , Ghulam Muhammad (P.W.2), Mst.Rehana Bibi (P.W.3), Sultan Ahmad SI (P.W.4), Muhammad Khan 1051/C (P.W.5), Ghulam Yasin ASI (P.W.6), Khalid Mehmood Inspector (P.W.7) and Ehsanullah ASI (P.W.8) to prove the charge framed and closed its case.
Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. While answering the question, why this case against him and why the PWs deposed against him, he stated as under:-- "In fact, the complainant of this case and his relatives who are prosecution witnesses, want to take six marlas land which is adjacent in our house and above mentioned land is in our possession because the said land is our own property which is situated in Mouza Shadia Dhakooyanwala. Due to the reason, the complainant had tried to take illegal possession of the said property but in vain."
He declined to appear as his own witness under section 340(2) Cr.P.C. but tendered certified copy of the family suit titled Rehana Bibi v. Sher Khan, dated 28.5.2004 as Exh.DA before he closed his defence evidence. Learned trial court held him guilty of the charge and sentenced him to mentioned terms through the impugned judgment.
6(sic) Learned counsel for the appellant has submitted that it is a case of no evidence whatsoever against the appellant and he has been convicted/sentenced gratuitously by the learned trial court without caring for overwhelmingly discrepant evidence of the prosecution witnesses, which might have led to no other conclusion except for the acquittal of the accused; the complainant's house and that of the appellant are located adjoiningly opening into the compound of one another, hence, the allegation of scaling over the wall to get into the complainant's house by the appellant is nothing but a sheer exaggeration; the impugned judgment contains no cogency at all, therefore, it may be set aside and the appellant may be acquitted of the charge.
7. Learned Deputy Prosecutor General Punjab and learned counsel for the complainant have supported the impugned judgment in unison with the contention that the accused had been held guilty and awarded the impugned sentence rightly, therefore, this appeal may be dismissed and verdict of guilt against the accused may be upheld.
8. Learned counsel for the parties have been heard at length and the relevant record has carefully been gone into.
The frailty of the impugned judgment may be assessed from the fact that the learned trial court acquitted the appellant of the charge of attempting to commit rape, which, in fact, was the main allegation against him, but convicted him for a much pettier offence, under section 354,P.P.C.,most probably, bearing in mind that the alleged occurrence might not have taken place at all. The complainant, Kashif Nadeem (P.W.1), Ghulam Muhammad (P.W.2) and Mst.Rehana Bibi (P.W.3) made every effort to conceal the most crucial aspect of the case, which related to the appellant's status of being ex-husband of the alleged victim (P.W.3) and this fact only came on the record, when they were tested through pointed cross-examination by the defence.
It showed a sense of mala fide on their part and they made it still more perceivable, when they countered grilling of the defence by volunteering that the accused had received Rs,28,000/- from his father-in-law to pronounce Talaq to Mst.Rehana Bibi, once his wife. The appellant looked to have been married to Mst.Rehana Bibi in exchange of his sister with a brother of the complainant.
This marriage-in-exchange must have been plagiarized by some bitterness and bad blood, when marital-ties between Mst.Rehana Bibi (P.W.3) and the appellant came to an end. Besides, the complainant and the appellant are real paternal cousins with one another. Kashif Nadeem (complainant/P. W.1), Ghulam Muhammad (P.W.2) and Mst.Rehana Bibi (P.W.3) also admitted the said relationship in their testimonies.
9. The visual site-plan (Exh.PC) manifestly revealed that complainant's house/haveli did not have any outer-gate fixed in its four-wall, rather there were three inlets, one located southwards and two northwards. An impression may be gathered from the site-plan that there was no wall on its eastern side, which opened in the land of one Haji Sher. In such a situation, when, entry in the house/haveli of the complainant was not obstructed by any gate or door, the allegation that the appellant jumped over its wall to enter therein was, but a bald allegation. He could enter the said house unhindered by any circumstance, particularly at about 1.00 a.m., therefore, the prosecution witnesses' depositions as regards jumping over the wall is not easily believable. The mode of the occurrence as narrated by the eyewitnesses. and the victim-lady gave a preposterous look, as all members of the house slept at the same place, which was compound of the house, hence, making an effort by the accused to awake Mst.Rehana Bibi and take her to some other place for violating her was an act of sheer idiocy, rather than something, called the valor.
10. His written application (Exh.PA), that Kashif Nadeem (complainant/P.W.1) submitted before the police for registration of the case, revealed that the inmates had overpowered and tortured the intruder/ appellant, but he somehow managed to escape. In their testimonies, they, however, changed the stance and deposed that they made an attempt to catch him but failed. They also changed his role, when they deposed that he had attempted to catch Mst.Rehana Bibi so as to forcibly outrage her modesty, but couldn't do so, as they all got up and on seeing them he jumped out of the house, but in his written application (Exh.PA), it was alleged by the complainant that the accused caught Mst.Rehana Bibi and forced her to go to some other place for merry-making, but she refused and made a noise, whereon they all awoke and overpowered/tortured him. The testimonies rendered by the witnesses of ocular account are contradictory inter-se and lacked natural touch of believability, hence, relying on them for sustaining conviction of the accused would not be advisable. Their evidence lacks basic element of credence and they have not turned out to be the truthful witnesses. The ocular account is thus brushed aside being untrustworthy and unreliable.
11.It has been the claim of the complainant that he reported the matter on the following morning of the night of occurrence, but documents revealed it otherwise. The alleged occurrence took place at 1.00 a.m. on 10.7.2007. Written application (Exh. PA) of the complainant though bore the date as 10.7.2007, yet its receipt by the police was not earlier than 16.7.2007 as is manifest from the tenor thereof. The FIR, however, was lodged at 5.30 p.m. on 19.7.2007. It may be that the complainant prepared this application on 10.7.2007, but he presented it before the police seven days thereafter, regarding which no explanation is available. Rana Sultan Ahmad SI (P.W.4) contended to have received the written application (Exh.PA) on 19.7.2007 on the basis of which he drafted the formal FIR (Exh.PA/1). The FIR cannot be deemed to have been promptly lodged by the complainant and delay-caused remained unexplained.
12. It has been made to look that the appellant remained an absconder for more than two years in this case and he was arrested by the police on 1.10.2009. Ehsanullah ASI/IO (P.W.8) has stated that he obtained non-bailable warrants of arrest of the accused through a written application (Exh.PD), which he entrusted to Muhammad Khan 1051/C (P.W.5) for execution, but it was returned unserved by the process-server, who failed to arrest the accused. Ehsanullah ASI also obtained proclamation against the accused through written-application (Exh.PE) and entrusted it again to Muhammad Khan constable (P.W.5), but it too bore no result, as he failed to catch him.
Muhammad Khan constable (P.W.5) gave an account of his efforts, as regards execution of non- bailable warrants of arrest (Exh.PB) through his written report (Exh.PB/1), whereby he reported that he repeatedly went to the house of Sher Khan accused, but he slipped away on each occasion after he learnt about his visit to the village. This report (Exh.PB/1) has not been endorsed by any local inhabitant. The situation of the proclamation is still worse as it bore no report of the process- server nor could it be tendered in evidence by the prosecution. The allegation of abscondence of the appellant remained unsubstantiated due to lack of interest of the prosecution.
13. The appellant said in his statement under section 342, Cr.P.C. that he had been involved in this case as a matter of conspiracy by the complainant, who under the garb of this case intended to grab six marlas of his land, adjacent to his house. No evidence did he lead in this context, so I it remained a fact gone unproven. This failure on his part would not strengthen the prosecution case in any manner, as they needed their own legs to stand on and without that, they could not borrow any element of fortification from the appellant's failure in proving his defence plea.
14.An overall survey of the case would categorically lead to a conclusion that the prosecution has badly failed to prove its case against the accused beyond any shadow of doubt. The unnatural allegation ingrained seeds of improbability, hence, it could not be established by the prosecution beyond suspicion. The impugned judgment is loaded with countless surmises and conjectures, which made it an unsustainable pronouncement. It is, therefore, set aside and so is done with the impugned conviction/sentence, resultantly, the appellant is acquitted of the charge. He is present on bail, for, his sentence had been suspended by this court on 9.8.2010. His bail bonds are cancelled and surety discharged. This appeal stands allowed.