ASIF SAEED KHAN KHOSA, J.--- Criminal Miscellaneous Application No. 418 of 2018 This miscellaneous application is allowed and the documents appended with the same are permitted to be brought on the record of the main appeal. Disposed of.
Criminal Appeal No. 352 of 2017
2. Muhammad Javed appellant had allegedly committed rape with a girl namely Azra Bibi at about 12.30 p.m. on 18.04.2008 in a cattleshed outside a village named Cheharkay in the area of Police Station Chunian, District Kasur and for commission of the said offence he was booked in case FIR No. 218 registered at the above mentioned Police Station during the same evening. After a regular trial the appellant was convicted by the trial court for an offence under section 376, P.P.C. and was sentenced to rigorous imprisonment for ten years and fine which conviction and sentence of the appellant were subsequently upheld and maintained by the High Court and an appeal filed by the appellant in that regard was dismissed. Hence, the present appeal by leave of this Court granted on 06.09.2017.
3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
4. It is admitted at all hands that no statement of the alleged victim namely Azra Bibi had been recorded before the trial court because the trial court had found that she was not of sound mind and, thus, was incapable of making a statement. It not denied that Muhamma d Mushtaq complainant (PW1) was not an eye-witness of the alleged occurrence. The ocular account of the incident in issue had been furnished before the trial court by Khushi Muhammad (PW2) and Muhammad Sarwar (PW3) who have not been found by us to be reliable witnesses. The FIR lodged in this case by Muhammad Mushtaq complainant (PW1) was based upon an information supplied to him by the above mentioned eye-witness es and in the FIR it had been mentioned that only an attempt had been made by the appellant to commit rape with the alleged victim and it had also been mentioned in the FIR that the attempt so made had remained abortive and the honour of the young girl had been saved and that is why in the FIR the police had invoked section 376, P.P.C. with section 511, P.P.C. indicating that it was a case of an attempt only. The said eye-witnesses had taken a volte face before the trial court and had started maintaining that the case in hand was a case of commission of rape and such commission of rape had been witnessed by them. Such change of stance on the part of the eye-witnesses and such naked improvements resorted to by them had completely detracted from their credibility . The said change of stance on the part of the eye-witnesses had probably come about on the basis of a report of the Chemical Examiner according to which the vaginal swabs of the alleged victim were found to be stained with semen. It is not disputed that no semen grouping or DNA, test had been conducted in this case so as to connect the present appellant with the semen found on the vaginal swabs of the alleged victim. Be that as it may, a positive report of the Chemical Examiner in that regard only showed that some sexual activity had taken place with the alleged victim but the perpetrator of that activity or the nature of the activity being against the wishes of the victim had never been established before the trial court through any independent evidence whatsoever . As if this were not enough, the medical evidence had shown no sign of rape having been committed with the alleged victim.
5. As already mentioned above, the alleged victim had not made any statement before the trial court for whatever reason and the investigating officer of this case had also not been examined before the trial court. The medical evidence showed no sign of commission of rape and we have found that the above mentioned eye-witnesses produced by the prosecution were quite capable of making any statement to suit their convenience. For all these reasons it could not be concluded by the courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed , the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.