Through Criminal Appeal No. 863 of 2014 in terms of Section 410, Cr.P.C. appellant Imran Ali has challenged the vires of judgment dated 07.03.2014 passed by the learned Additional Sessions Judge/Judge Juvenile Court, Sheikhupura in case FIR No. 304 dated 18.07.2012, in respect of an offence under Section 376, PPC, registered at Police Station, Safdarabad, whereby he was convicted and sentenced as under: Under Section 376(i), PPC Rigorous imprisonment for 15-years with the fine of Rs.25,000/- and in default thereof, to further undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr .P.C. was also extended to the appellant.
2. Crl. Revision No. 231/2014 preferred by complainant Azhar Iqbal seeking the enhancement of sentence of Respondent No. 1 shall also be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.P A/1) registered on the complaint of Azhar Iqbal (PW-1) is that on 16.07.2012 at 1:30 p.m. Imran (appellant) alongwith his brother Usman (tried separately as major accused) committed rape with Mst. Amna Bibi aged 6/7 years.
9. It would not be out of place to mention here that co-accused Usman was tried separately being major accused and he was acquitted of the charge vide even dated separate judgment.
10. Learned counsel for the appellant submits that the appellant is quite innocent and he had falsely been implicated in this case; that the appellant and his co-accused Usman are real brothers and they were assigned the identical role of rape with victim Mst. Amna Bibi but learned trial Court has already disbelieved the prosecution evidence to the extent of said Usman and acquitted him; that the prosecution witnesses were not consistent inter- se with regard to the mode and manner of the occurrence; that the victim was freshly , bleeding at the time of medical examination after three days of the occurrence, which is not in line with medical jurisprudence rather contradicting the view as observed therein; that the report of Chemical examiner regarding swabs taken from the private parts of the victim had not been found stained with semen; that statement of the victim under Section 161, Cr.P.C. was recorded after forty-seven days of the occurrence, which being an afterthought is not worth reliance. At the end, learned counsel has prayed for acquittal of the appellant.
11. Conversely , learned Assistant District Public Prosecutor appearing for the State assisted by learned counsel for the complainant has vehemently contended that it was a heinous offence committ ed by the appellant with a baby girl aged about 6/7 years; that the witnesses of ocular account remained consistent qua the role played , by the appellant for forcibly committing sexual intercourse with the victim; that specific allegation against the appellant is fully supported with the medical evidence; that in order to constitute the offence of rape only penetration is sufficient and, thus, the negative report of the Chemical Examiner has no bearing upon the fate of the case. Finally , the prayer has been made for dismissal of the appeal and acceptance of the revis ion petition for enhancement of sentence.
12. I have heard learned counsel for the appellant, learned Assistant District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record.
13. Azhar Iqbal (PW-1), complainant/father of the victim run the law in motion while stating that on 16.07.2012 at 01:30/02:00 p.m. his minor daughter namely , Mst. Nabeela Bibi came to the Dera while weeping and told her mother that in her presence two boys were committing sexual intercourse with Mst. Amna Bibi, as earlier both the sisters went outside the house to collect jambolan from nearby field, upon which, he alongwith his wife and his brother Mohsin rushed towards the pointed place and at the distance of a few paces, they saw the appellant committing Zina with his daughter Mst. Amna Bibi whereas Usman was standing nearby . On Seeing them, they succeeded to flee away while raising lalkara and brandishing there pistols. He immediately lifted his daughter in injured condition to his Dera and then to Police Station but due to the intervention of respectable and elders of the accused persons for compromise, the FIR could not be registered. On 18.07.2012 he submitted application for the registration of case. After registration of the case his daughter was taken to the hospital by the police where she was medically examined by Lady Doctor Muna Sajjad (PW-6). Mohsin Iqbal (PW-2) made almost identical statement before the trial Court. The complainant had given the reason of delay in reporting the matter to the police i.e. intervention of the respectable and elders of the accused party for compromise but admittedly , application for the registration of the case was preferred after two days of the occurrence and he has not mentioned even a single word with regard to the delay in approaching the police in that regard. The complainant not only got lodged the crime report after two days of the alleged occurrence but also got conducted the medico-legal examination of his daughter after registration of the case. In case of rape with a baby girl aged about 6/7 years, the primary duty of the complainant even obligatory as well as natural course for him to rush towards the hospital for first aid and obtaining the medico-legal certificate but no such ef fort had been made by any of the witnesses.
14. According to the complainant, he alongwith his wife and brother Mohsin Iqbal rushed toward the pointed place and saw that the appellant committing Zina-Bil-Jabr with the victim but at the same time Mohsin Iqbal made material improvement in his deposition before the learned trial Court that he had seen the appellant committing said offence on their arrival at the spot but he was confronted with his previous statement Ex.DA wherein it was not so recorded. Both the eye witnesses, being real brothers were sitting at their Dera but when they got recorded their statements before the police, they made statements contradicting each other . The complainant claimed that the appellant was committing Zina with the victim whereas Mohsin Iqbal (PW-2) claimed that the co-accused Usman was committing Zina with the victim when they reached at the place of occurrence. It is not out of context to mention here that co-accused Usman having exactly identical role has already been acquitted of the charge by the trial Court vide even dated separate judgment and the appeal against his acquittal preferred by the complainant was subsequently withdrawn from this Court vide order dated 28.06.2018.
15. Mst. Amna Bibi (victim) was star witness of the occurrence, who appeared as PW-3 and endorsed the crime report while stating that she alongwith her younger sister Mst. Nabila went in the fields to eat Jambolan where two boys, present before the Court, came. Firstly , the elder one had committed and thereafter the younger was committing Zina-Bil-Jabr with her when her parents and uncle Mohsin Iqbal attracted at the venue of occurrence.
She was taken to the hospital for medical examination. The crime report was lodged after two days and the medical examination of the victim was conducted after three days of the occurrence and her statement under Section 161, Cr.P.C. was recorded after forty-seven days of the alleged occurrence. She specifically leveled the allegation of rape firstly against co-accused Usman and thereafter the appellant but her statement has not been believed to the extent of commission of rape against co-accused Usman and in pursuance thereof, he has already been acquitted of the charge by the trial Court and appeal against his acquittal has been withdraw n by the learned counsel for the complainant after arguing at some length, which shows that the complainant party was satisfied about innocence of Muhammad Usman. She remained associated with the investigation process but her statement was not recorded for such a long period, which by itself renders its authenticity to be legally next to nothing in view of the dictum laid down in case titled " Muhammad Asif versus The State " (2017 SCMR 486 ) wherein it has been held as under: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witness would be fatal and testimony of such witnesses cannot be safely relied upon."
16. Dr. Muna Sajjad (PW-6) conducted the medico-legal examination of Mst. Amna Bibi (victim) aged about seven years on 19.07.2012. The history menti oned therein was that she was subjected to rape near her house on 16.07.2012 at 02:30 p.m. by her two neighbourers with symptoms of her vaginal bleeding. The Medical Officer did not observe mark of violence on any part of her body , however , a tear 2x2 cm at 6"O clock position was present, hyperemia at the private part was positive, the hymen was freshly ruptured, the blood clots were present and there was no evidence of seminal staining. This shows that the victim was raped but the question is that why the bleeding was still present after three days of the alleged occurrence and why her hymen was freshly ruptured. On Court's query , learned counsel for the complainant could not satisfy the Court in that regard, however , he has referred the quotation of medical jurisprudence and Toxicology written by Parikh (5th Edition) wherein it has been written at page 447 that in such a situation of rape the tenderness, redness and pain to touch remains even after 3/4 days. The quotation has no relevancy to the matter in issue because it is not a case of tenderness and redness etc. rather there was fresh bleeding and hymen was freshly ruptured, which was impossible after three days of the occurrence. The report of Chemical Examiner qua swabs stained with semen or blood has been received with negative result. In my view the medical evidence lends no support to the ocular version.
17. From the evidence pro and contra as discussed above, the prosecution has been found unsuccessful in proving the charge of rape against the appellant beyond shadow of reasonable doubt. The victim's statement has already been disbelieved to the extent of co-accused having identical role of committing rape with her and her half-truth only to the extent of appellant does not solve the purpose in view of the prevailing principle of "falsus in uno falsus in omnibus ". We seek guidance from (PLD 2019 Supreme Court 527) wherein at paragraph No. 21 it has observed as under: "We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the Courts in the country in its letter and spirit. It is also directed that a witness found by a Court to have- resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury ."
The witnesses of ocular account namely , Azhar Iqbal and Mohsin Iqbal, who attracted at the place of occurrence, made contradictory statement, one implicated the appellant for committing Zina with the victim whereas the other implicating co-accused Muhammad Usma n for the said offence. The Medical Officer observed fresh bleeding and the hymen was freshly ruptured, which is not possible after three days of the occu rrence and thereby , the medical evidence lends no support to the ocular account. Co-accused having identical role has already been acquitted of the charge in separate trial and appeal against his acquittal was withdrawn by the complainant from this. Court.
The role of the appellant is at the same pedestal to that of his co-accused. After evaluating of the evidence/material available on record, I am not in agreement with the opinion arrived at by the learned trial Court qua the conviction and sentence of the appellant.
18. For what has been discussed above, Criminal Appeal No. 863 of 2014 is allowed , the conviction and sentence of the appellant are set aside and he is acquitted of the charge by giving the benefit of doubt to him. He is directed to be released forthwith from jail if o t required to be detained in connection with any other case.
19. Crl. Revision No. 231/2014 seeking the enhancement of sentence of Respondent No. 1 is without any merit, the same stand dismissed in limine .