MUHAMMAD WAHEED KHAN J.---Through this appeal, appellant Muhammad Afzaal has challenged his conviction and sentence awarded to him by learned Addl. Sessions Judge, Faisalabad vide judgment dated 13.09.2014 in case FIR No.734i2012 dated 19.06.2012, registered under Section 376, P.P.C. at Police Station Batala Colony , Faisalabad, whereby he was convicted and sentenced as under: Under section 376(1), P.P.C. awarded fourteen years imprisonment along with fine to the tune of Rs.2,00,000/- and in default thereof, he was ordered to further undergo one year simple imprisonment.
Benefit of section 382-B, Cr .P.C. was also extended to the convict.
2. Feeling aggrieved by the judgment passed by the learned trial Court, appellant has assailed his conviction and sentence by filing the instant appeal.
3. Complainant Mst. Fouzia while appearing as PW-3 before the learned trial Court narrated the story of prosecution as under;-- "Stated that on 19.06.2012 at about 01:00/01:30 p.m. she as well as Atif Wasim and Tariq Mehmood were present at her residence. Suddenly she heard a noise of cry of her daughter . She as well as Atif Wasim and Tariq Mehmood rushed towards the house of accused Mohammad Afzaal. They heard noise of crying from the roof. They came to the roof where a noise was coming from the room. Tariq Mehmood her companion opened the door and they saw that accused Afzaal is committing rape with her daughter Isra aged about six years. Her daughter was crying at that time and she was smeared with blood. After seeing them accused Mohammad Afzaal fled-away from the scene. Her brother -in-law Tariq Mehm ood took her daughter and they boarded her in rickshaw and went to the police station. They moved written application before the police for the registration of case against the accused Mohammad Afzaal. Then her daughter was shifted to Civil Hospital, Faisalabad for treatment and her MLC.
Accused Mohammad Afzaal committed heinous Offence with her minor daughter Isra, he be punished accordingly ."
4. After registration of case police investigated the case and found the appellant as guilty and by placing his name in column No.3, report under section 173, Cr.P.C. was submitted before the learned trial Court for commencement of trial. Thereafter , formal charge against the appellant was framed, to which he pleaded not guilty and claimed trial.
5. Prosecution produced as many as seven witnesses. Ocular account was furnished by PW-3 Mst. Fouzia Bibi who is mother of victim as well as complainant of the case, PW-4 Atif Waseem and PW-5 Tariq Mehmood. Dr. Mehmooda Khurshid SWMO appeared as PW-1, who medically examined the victim Isra and Iftikhar Hussain ASI, Investigating Officer of the case appeared as PW-6, whereas the remaining witnesses were of formal in nature.
Thereafter , prosecution closed its evidence by producing certain documents.
6. After completion of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C., who neither opted to appear as witness under section 340(2), Cr.P.C., nor produced any evidence in his defence, however , while answering question (Why this case against you and why the PWs deposed against you? ), appellant denied all the allegations leveled against him.
7. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of reasonable doubt, which resulted into his convict ion and sentence as mentioned above.
8. Learned counsel for the appellant submit that the prosecution has failed to prove its case against the appellant beyond shadow of doubt; that the story narrated by the complainant while lodging FIR is not believable and cannot be comprehended at any stretch of imagination; that the alleged victim, namely , Isra aged about 6 years was neither appeared during the course of investigation nor produced by the prosecution during trial to verify the factum of having committed rape by the appellant with her; that the stance of the complainant was falsified by the report of Punjab Forensic Science Agency as it does not confirm the factum of rape with the victim; that the evidence of the complainant and medical evidence were not put to the appellant during his statement under section 342, Cr.P.C. and the law is settled by now that any incriminating evidence which has not been put to the accused is of no help for the prosecution. Lastly pray that by accepting the instant appeal, appellant may be acquitted of the charge.
9. Conversely , learned Law Officer assisted by the learned counsels for the complainant strongly controverted the arguments advanced by the learned counsel for the appellant and submits that .the prosecution has proved the charge against the appellant beyond reasonable doubt by producing eye-witnesses of the alleged incident and medical evidence adduced by PW-1 Dr. Mehmooda Khurshid, who fully supported the ocular version of the case; that no previous enmity exists between the parties, so, appellant could not be involved falsely by the complainant.
Lastly , prays that instant appeal may be dismissed while maintaining the conviction and sentence.
10. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
11. After hearing the learned counsel for the parties and having gone through the record, it transpires that the unfortunate incident as alleged in the FIR took place on 19.06.2012 at about 1.00/1.30 p.m. and while narrating the incident as PW-3 Mst. Fouzia Bibi wife of Sajid Mehmood complainant of the instant case stated that on hearing noise of her daughter Isra, she along with Atif Waseem (PW-4) and Tariq Mehmood (PW-5) rushed to the house of appellant and saw that the appellant was committing rape with her daughter Isra aged about six years. On reaching PWs, appellant managed to flee away from the crime scene. The victim was moved to Police Station and after lodging crime report, she was medical ly examined. The other PWs Atif Waseem and Tariq Mehmood also described the incident almost in a similar manner .
12. Dr. Mehmooda Khurshid who appeare d as PW-I before the learned trial Court and stated that on 19.06.2012 at 3.45 p.m. she medically examined the victim Isra daughter of Sajid Mehmood. Her Shalwar was stained with blood, hymen was torn all around, a fresh tear was seen and fresh bleeding was present at the time of examination and while giving her opinion, said doctor opined that rape was committed with the victim but while giving her final opinion, she opined that although on her clinical finding rape was proved with victim but as per Chemical Examiner reports no recent semen detection was seen and no DNA test was performed.
13. Learned counsel for the appellant vigorously argued that after arrest of the appellant, he was not subjected to medical examination to verify his potency and this aspect was also admitted by the learned Law officer but she states that this lapse was committed by the Investigating Officer of the case. Although PW-6 Iftikhar Hussain ASI Investigating Officer of the case describes that he produced the appellant before doctor and got him medically examined and also got copy of MLC regarding his potency test but the fact remains that neither said MLC is available on record nor prosecution produced the said doctor .
14. On appraisal of entire evidence produced by the prosecution, this Court finds that although the prosecution produced Mst. Fouzia Bibi mother of the victim (complainant) as eye-witness and her version was supplemented by Atif Waseem and Tariq Mehmood who appeared as PW-4 and PW-5 respectively . All the three PWs claimed to be the eye-witnesses of the incident but fact remains that the victim Isra was never associated during the investigation and this fact was admitted by the Investigating Of ficer in his cross examination in following terms,- "I did not record the statement of victim under section 161, Cr. P. C. I kept on summoning the complainant to bring the victim for recording her statement under section 161, Cr.P.C. on different dates including 27.06.2012, 30.06.2012, 05.07.2012 and 08.07.2012 but she did not bring the victim for above said purpose."
15. Another important aspect of the case is that while recording statement of appellant, question No.5 was put to him in the following terms;-- "It is in the prosecution evidence that when you was committing rape with the minor namely Isra, on hue and cry of the above said minor namely Isra, the witnesses namely Tariq Mehmood (uncle of Isra) and Atif son of Muhammad Afzal came on the place of occurrence. What do you say about it?
On perusal of this question put by the prosecution to the appellant, it shows that only Tariq Mehmood (uncle of Isra)
PW-5 and Atif Waseem son of Muhammad Afzal PW-4 were attracted towards the place of occurrence and nowhere it is mentioned regarding presence of Mst. Fouzia Bibi (complainant). It means that evidence of Mst.
Fouzia Bibi was never put to the appellant during his statement recorded under section 342, Cr .P.C.
16. This Court also finds another lapse on part of the prosecution that medical evidence which has paramount importance in this case, as it squarely confirms the factum of rape with the victim, was also not put to the appellant during his statement recorded under section 342, Cr.P.C. When this situation was confronted to the learned Law officer assisted by the learned counsel for the complainant, she could not reply the same and admitted that the medical evidence has been totally ignored and never put to the appellant. So, I find that this was a huge failure/lapse on part of the prosecution and the learned trial Court as well, where most important incriminating material was not put to the appellant in his statement under section 342, Cr.P.C. enabling him to explain the circumstances. It is well settled law by now that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C., then same cannot be used against him for his conviction and learned trial Court without realizing the legal position, not only used the above said evidence against the appellant but also convicted him on such piece of evidence, which on the face of it cannot be sustained. Reliance in this regard is placed on the cases of "Imtiaz alias Taj v. The State and others " (2018 SCMR 344), "Muhammad Nawaz and others v. The State and others " (2016 SCMR 267 ) and " Muhammad Shah v . The State " (2010 SCMR 1009 ).
The august Supreme Court of Pakistan in its judgment passed in case of "Imtiaz alias Taj v. The State, and others " referred supra has observed as under;- "The law is settled (hat a piece of evidence or a circumstance not put to an accused person at the time of recording of his statement under section 342, Cr .P.C. cannot be considered against him."
17. Needless to reiterate that the prosecution is obliged to prove its case against the accused beyond reasonable doubt and if it fails to do so, accused is entitled to the benefit of doubt as of right and any element of doubt as to the guilt of accused shall be resolved in his favour .
18. As a sequel to above discussion, the instant appeal is allowed and conviction and sentence awarded by the learned trial Court to the appellant vide judgment dated 13.09.2014 is set aside and he is acquitted of the charge.
He is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case.