Asjad Javaid Ghural, J. Through this criminal appeal under Section 410 Cr.P.C., appellant Mudassar Manzoor has challenged the vires of judgment dated 16.11.2017 passed by the learned Additional Sessions Judge, Layyah in case FIR No.77 dated 08.03.2015, in respect of offences under Sections 452, 458, 376(ii), 292 & 392 PPC, registered at Police Station, Choubara, District Layyah whereby he was convicted and sentenced as under:- Under Sections 376(i) PPC Simple Imprisonment for 25-years and to pay the fine of Rs:50,000/- and in default thereof, to further undergo simple imprisonment for two months.
Under Section 458 PPC Simple Imprisonment for 05-years and to pay fine of Rs.30,000/-, in default thereof to further undergo simple imprisonment for one month.
He was held entitled to the benefit of Section 382-B Cr .P.C. and the sentences were directed to run concurrently .
2. Complainant Mst. Shakila Ashraf has preferred Criminal Appeal No.1164 of 2017 against the acquittal of respondents No.1 & 2 and also Criminal Revision No.484 of 2017 seeking enhancement of sentence of the respondent No.2, which will be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.PH) registered on the complaint of Shakila Ashraf (PW- 6) is that her husband Muhammad Ashraf had gone to Saudi-Arabia for earning livelihood and she was residing at Chak No.315/TDA with her four children. In the intervening night of 04/05.03.2015 at about 01:00 a.m., Mubashir Manzoor, Mudassir Manzoor (appellant) and Adnan, who were notorious vagabond and residents of same village, trespassed into her house, awakened the complainant on gun point, took her to another room, torn her cloths, committed rape with her turn-by-turn, prepared the video, tortured and extended her threats to upload the same on internet. They also snatched ear rings weighing 1/2 Tola from her on gun point and directed her to make compromise in case FIR No.514/11. On the following morning, she went to her parent's house and told them about the occurrence and also to her husband through telephone.
4. Fazal Hussain 635/HC furnished the secondary evidence of Wali Muhammad SI/Investigating Officer being dead. He identified his handwriting and signatures on different documents relating to the steps taken during initial investigation as well as arrest of co-accused Adnan and Mubashir .
Ilyas Ahmed, SI (PW-9) conducted investigation of the case, made effort to arrest the appellant but in vain. He obtained proclamation of the appellant under Section 87 Cr.P.C. and ultimately prepared report under Section 512 Cr.P.C. against the appellant. On 08.07.2015 the appellant, being on pre-arrest bail, joined the investigation after dismissal thereof, he arrested him on 17.08.2015. During investigation, the appellant led to the recovery of a pistol (P-1) alongwith eight live bullets, which were taken into possession vide recovery memo Ex.PI. He recorded the statements of witnesses under Section 161 Cr.P.C. and got prepared report under Section 173 Cr.P.C.
5. Dr. Khalid Mahmood (PW-3) conducted potency test of the appellant on 09.03.2015 and found him potent.
6. Lady doctor Nazia Parveen (PW-4) conducted medico-legal examination of the victim on 08.03.2015 and observed no apparent injury , however , she was menstruating with the history of offensive sexual assault four days back, external and internal swabs were taken for chemical examination and DNA test.
7. At the commencement of the trial, learned trial Court had framed a charge against the appellant and his co- accused Adnan and Mubashir Manzoor to which they pleaded not guilty and claimed to be tried.
8. The prosecution examined 10-witnesses besides the report of Punjab Forensic Science Agency (Ex.PN). The appellant and his co-accused, in their statement recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of fact leveled against them. They opted not to make stateme nt under Section 340(2) Cr.P.C. however , produced certain documents in their defence.
9. Learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Mubashir Manzoor and Adnan whereas, convicted and sentenced the appellant, as stated above vide judgment impugned. Hence, the aforementioned criminal appeals as well as the connected revision petition.
10. Learned counsel for the appellant submits that the appellant is quite innocent and had falsely been implicated in the alleged occurrence; that there was delay of three days in lodging the crime report showing the real possibility of consultation, deliberation and fabrication; that all the three accused were assigned specific role of gang rape but two of them, have already been acquitted of the charge while disbelieving the same set of witnesses; that the testimony of Muhammad Sharif (PW-7) has already been discarded by the trial Court; that the mode and manner of the occurrence of rape by three accused turn-by-turn and preparing its movie in the same compound where four children of the victim were also sleeping does not appeal to reason; that the medical evidence does not support the ocular account; that the report of DNA analysis regarding vaginal swabs of the victim has been received with negative result; that the cloth and other articles were sent to the office of Punjab Forensic Science Agency on 10.03.2015 through Muhammad Sharif, constable (PW-1) but the said witness did not utter even a single word in that regard before the learned trial Court; that the prosecution evidence to the extent of preparing video clip of the occurrence, maltreating the victim and theft of ear rings has already been disbelieved by the learned trial court; that the victim made material improvements in her deposition before the learned trial court, which was duly confronted to her previous statement; that previous enmity between the parties is admitted one, which was the sole reason to falsely implicate the appellant and his brothers in this case. At the end, he has prayed for acquittal of the appellant.
11. Conversely , learned Deputy District Public Prosecutor appearing for the State assisted by the learned counsel for the complainant has vehemently contended that the victim as well as Muhammad Sharif and Nazar Hussain had well identified the appellant and his companions at the time of occurrence; that she had specifically levelled the allegation of gang rape against the appellant and his co-accused in her residential room; that there was no occasion for the complainant lady to falsely implicate the appellant and his co-accused while letting-of f the real culprits; that DNA analysis report is positive to the extent of the appellant and on that score, the role of present appellant was distinguishable to that of the acquitted co-accused. Finally , he has prayed for dismissal of the appeal, enhancement of the appellant' s sentence to the capital punishment and also converting the judgment of acquittal into one of the conviction of respondents No.1 & 2.
12. I have heard learned counsel for the appellant, learned Deputy District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record.
13. The case of prosecution hinges upon the ocular account, the medical evidence and the recovery of weapon of offence from the appellant. Complainant/victim Mst. Shakeela Ashraf (PW-6) herself as well as her brother-in-law namely, Muhammad Sharif (PW-7) furnished the ocular account. The complainant lady while appearing in the dock in the Court room reiterated the contents of the crime report but with some variation stating that her husband Muhammad Ashraf was living in Saudi-Arabia, she alongwith her four children was sleeping in her house, in the intervening night of 04/05.03.2015 at about 01:00 a.m. the appellant alongwith his brothers Mubashir and Adnan, while armed with pistols, trespassed into her house by cutting lattice of the corridor, the electric bulb was on, they forcibly took her to another room and subjected her to the gang rape turn-by-turn, prepared its video clip, tortured and threatened her to upload the video clip on Facebook and U-Tube. They searched the house, they found nothing whereupon Mubashir and Adnan snatched one ear gold ring each from her and directed her to enter into compromise in the earlier registered case FIR No.514/2011, at Police Station, Chaubara by her husband against one Munir, their paternal uncle. They also asked her to remain giving them money, which her husband had been sending from Saudi Arabia. The police did not register case on her application but she protested and succeeded to get registered instant case after three days. After registration of case on 08.03.2015, the medico-legal examination of the victim lady was conducted on the same day and thereafter she was sent to the office of Punjab Forensic Science Agency for DNA test. In cross-examination it came to light that she had made certain material dishonest improvements in her deposition before the learned trial court regarding the availability of light i.e. electric bulb, co- accused Mubashir and Adnan snatched her ear rings one each, she approached the police on 5th, 6th and 7th of March, 2015 for registration of case, after protest this case was registered on 8th of March, 2015 and introdu cing the names of Muhammad Sharif and Nazar Hussain PWs, who had seen the appellant and his co-accused while leaving her house soon after the occurrence , which were duly confronted to her statement recorded under Section 154 Cr.P.C. (Ex.PJ) before the police. Admittedly , it was a dark-night occurrence, no source of light was mentioned in the crime report and even no electr ic bulb was taken into possession by the Investigating Officer during investigation and this fact was not mentioned in the crime report. In absence of source of light, the identity of the culprits remains under heavy clouds. The victim lady claimed that the appellan t and his co-accused prepared video-clip of the occurrence through mobile phone but neither any mobile phone was recovered from the accused nor any forensic report of such video clip was brought on record before the learned trial court. Furthermore, her claim of torture and forcible sexual assault stood negated by the medical evidence furnished by lady doctor Nazia Parveen (PW-4) observing no sign of assault/injury on any part of her body . During investigation, no gold ornament was recovered from any of the accused persons. At the end of trial, learned trial court reached at a definite conclusion that all the accused including the appellant were not guilty of the offences under Sections 452, 392 & 292 PPC and they were accordingly acquitted of the said charges.
14. However , he had specifically stated that accused persons forced her for compromise in the previous case already got registered by her husband against paternal uncle of the appellant. The said case was existed, which shows that both the parties were already inimical to each other .
15. Another aspect of the matter relevant to the discussion is that the appellant and his co-accused were specifically alleged to have launched sexual assault upon her when her four children were also sleeping in the same compound. She did not mention the names and age of her children in the crime report but in cross- examination before learned trial court, it came on surface that her son Abdul Rehman was 14-years of age at the time of occurrence. It took about one hour during the occurrence but surprisingly, none of her children got up especially when accused were making video at the time of committing rape with the victim. During cross examination it was admitted that, during the process of rape by three accused, she did not raise hue and cry due to fear of getting up her children. This shows that either something else happened than that as alleged by the complainant or she had suppressed some real facts from the court for the reason best known to her.
16. In support of the victim's stance, Muhammad Sharif (PW-7) appeared and demonstrated that he alongwith Nazar Hussain (since given up) had seen three accused, in the light of electric bulb, when they were leaving the house of the victim lady. It is surprising that the victim lady was his sister-in-law and her husband was in Saudi- Arabia, he had seen three armed accused while leaving his brother's house but he as well as Nazar Hussain approached the victim lady in the morning and got information regarding this occurrence. Moreover, the complainant did not mention the name of the witnesses in the crime report, which was got lodged after three days of the occurrence. Meaning thereby, they were introduced later on after due deliberation, consultation and, thus, their presence at the venue of occurrence at the relevant time has been discarded by the trial Court being not truthful witness. Moreover, he had stated that he was informed by the victim that the accused trespassed her house by scaling over the wall, in contrary to the victim's own version in her deposition, even site plan of the place of occurrence shows the height of the four-walls were not less than 12 feet and the outer door was the only source to enter into the house. Upon my own independent evaluation of the evidence available on record, it has been established that Muhammad Sharif (PW-7) had not seen any of the accused coming out of the victim's house on the fateful night and whatever he narrated before the learned trial court was nothing but a brunch of lies and thereby he ostensibly committed the of fence of perjury .
17. All three accused were specifically alleged to have committed gang rape turn-by-turn with the victim lady but two of them i.e. Mubashir Manzoor and Adnan Ahmad having exactly identical role, have already been acquitted of the charge by the learned trial Court while disbelieving the prosecution evidence to their extent. The settled principle of law in this backdrop is that all the accused having identical role shall be treated on equal footings instead of any pick and choose. Reference may be made to cases titled "SHAHBAZ versus The STATE" (2016 SCMR 1763 ), "TARIQ versus The STATE and others" (2017 SCMR 1672 ) and "IMTIAZ alias TAJ versus The STATE and others" (2018 SCMR 344). A ready reference may be made to the last one wherein it has been held as under:- "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witness receive independent corroboration qua the other accused person."
18. Dr. Nazia Parveen (PW-4) conducted medico-legal examination of the victim lady on 08.03.2015 and observed that her clothes were neither stained with blood nor semen and there was no injury on any part of her body. She collected internal and external swabs of the victim lady for onward transmission to the office of Punjab Forensic Science Agency for analysis. She neither gave opinion with regard to commission of rape with the victim lady nor was it reserved by her. In cross-examination, she specifically deposed that "there was no abnormality on the wearing clothes of examinee so were not taken into possession and were not handed over to police. No mark of violence or rape were found by me on the body of examinee. I had not given opinion with regard to rape nor has same been reserved by me". This shows that the medical officer was not certain with regard to any sexual assault upon the victim lady. She observed no abnormality and even her clothes were not found stained with blood or semen and due to that reason the victim' s clothes were not handed over to the police. The DNA profile of stained section of kameez was identified but the same was negated to the extent of vagin al swabs. The victim, in her own statement, admitted that her clothes were removed prior to the commission of rape with her and the Medical Officer also observed no stain section on any part of her clothes. It has been noticed that when the clothes were not taken into possession and were not handed over to the police, then how the same were sent to the office of Punjab Forensic Science Agency through Muhammad Sharif constable (PW-1). Muhammad Sharif (PW-1) did not utter even a single word that he had transmitted kameez and other articles to the aforesaid office on the aforesaid date, which negates the entire prosecution story. The prosecution, of its own, could not establish the submission of the kameez to the aforesaid office for examination especially when the Medical Officer did not hand it over to the police for onward transmission to the aforesaid office. In the given circumstance, the contention of learned counsel for the appellant that potency test of the appellant was conducted on 09.03.2015 and thereafter , he was taken into the office of Punjab Forensic Science Agency for DNA test where his semen was managed by the Investigating Officer in order to obtain the stain section of kameez and subsequently on the following day, it was deposited into the aforesaid office for getting positive result , carries much weight and appeal to reason especially when no piece of cloth of the victim lady was handed over by the medical officer to the police for getting expert opinion. I am clear in my mind that the medical evidence lends no support to the ocular account.
19. The recovery of weapon of offence i.e. pistol (P-1) from the appellant has no relevancy to the rape in issue as it was not used during the occurrence, so it remained inconsequential especially in absence of report of the Ballistic Expert.
20. Having scanned the entire prosecution evidence, I am of the considered view that the prosecution has not been able to prove the charge of rape against the appellant and failed to produce unimpeachable, cogent, reliable or confidence inspiring evidence. The victim lady was the only witness of the alleged occurrence she made material improvements in her deposition before the learned trial court including the availability of light. It was a joint allegation of rape against three accused including the appellant and his brothers but learned trial court did not believe the prosecution evidence to the extent of two of the co-accused and the settled principle of law is that there should be no pick and choose from the accused having identical role. Learned trial court after differentiating the case of the appellant on account of medical evidence but it stands discarded by this Court. The testimony of the complainant/victim is doubtful and her stance cannot be believed as a gospel truth. The unnatural conduct of other material witness i.e. brother-in-law of the victim lady, who had seen the appellant and his co-accused while coming out of his brother's house, for neither making any effort to approach the victim lady then and there nor reporting the matter to the police by itself shows that he was not a truthful witness and he made false statement before the court on oath. Not to speak of a single doubt, the case in hand is replete with doubts and the benefit of doubt, if slightest, always tilts the scale of justice in favour of the accused. I am not in agreement with the conclusion arrived at by the learned trial Court qua the conviction and sentence of the appellant. The only irresistible conclusion is that the prosecution has badly failed to prove the charge against the appellant beyond shadow of reasonable doubt.
20. The epitome of above discussion is that the appeal in hand 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 from jail forthwith, if not required to be detained in connection with any other case.
21. For the reasons recorded hereinabov e, Criminal Appeal No.1164 of 2017 against the acquittal of respondents No.1 & 2 and Crl. Revision No.484 of 2017 seeking enhancement of sentence of respondent No.2 are without any merits, the same stand dismissed in limine.
22. Before parting with this judgment, I have observed that Muhammad Sharif (PW-7) made false statement before the learned trial court on oath against the appellant in an offence of moral turpitude entailing the capital punishment. He did not figure in the crime report, which was registered with the delay of four days and he volunteered at some subsequent stage posing himself as a witness of seeing the appellant and his co-accused when they were coming out of his brother's house. He made an abortive attempt to provide corroboration to the complainant lady and thereby ostensibly committed the offence of perjury. The practice of giving false statement has become fashion and habit of our society, which has been discouraged by august Supreme Court of Pakistan in a recent esteemed judgment in a case reported as "PLD 2019 Supreme Court 527" with a clear-cut observation to curb such practice in future. So, on the same analogy the matter is referred to the learned District & Sessions Judge, Layyah with the direction to initiate proceedings against Muhammad Sharif (PW-7) under Section 194 PPC in accordance with law.