SARDAR AHMED NAEEM, J.---This appeal is directed against the judgment dated 03.03.2011, whereby the learned Additional Sessions Judge, Sargodha, after conclusion of trial in private complaint, lodged by Muhammad Nadeem, complainant, under sections 420, 468, 471, 376, 496-A, P.P.C., convicted and sentenced the appellant as under:- i. Under section 365-B, P.P.C. to undergo life imprisonment with fine of Rs.50,000/- and in default in payment of the same to further undergo Simple Imprisonment for three months. ii. Under section 376, P.P.C. to ten years rigorous imprisonment with fine of Rs.50,000/- and in default in payment of the same, to further undergo simple imprisonment for three months.
Both the sentences shall run concurrently and he was extended benefit of section 382-B, Cr. P.C.
The learned trial court, however, vide same judgment, acquitted co-accused of the appellant, namely, Nusrat, Nasreen, Din Muhammad, Muhammad Aslam, Muhammad Yousaf, Noor Din, Nazeer and Muhammad Siddique by extending them benefit of doubt.
2. It is observed that initially the complainant moved an application (Exh.PA) on the basis of which formal FIR Exh.PA/1 was registered against the appellant and his acquitted co-accused. Since during investigation, the co- accused of the appellant were declared innocent by the Investigating Officer, therefore, being dissatisfied with the investigation, the complainant lodged the instant private complaint.
3. The facts, in brief, are that on the night between 7/8th of May, 2008, the accused persons armed with fire arms abducted sister of the complainant namely Kishwar Sultana for the purposes of committing zina with her.
Hence case FIR No.238 dated 13.7.2008 under Section 496-A, P.P.C. was got registered at Police. Station Saddar Sargodha. Later on, the police recovered the abductee and according to her statement, Muhammad Anwar appellant along with Muhammad Aslam, Noor Din, Nazir, Siddiq and Yousaf co-accused (since acquitted) committed zina bil jabr with her and also got her thumb impression on different papers.
4. After proceedings under section 202, Cr.P.C., learned trial court summoned the accused persons to face trial.
5. Prosecution/complainant examined Muhammad Nadeem, complainant as PW.1, Muhammad Munir (PW.2), Kishwar Sultana, abductee (PW.3), Ghulam Nabi, A.S.I. (PW.4), Mukhtar Ahmad C-898 (PW.5), Abdul Majeed, S.I., Investigation Officer (PW.6) and Lady Doctor Misbah Abubakar, SWMO (PW. 7).
6. The complainant gave up Muhammad Akram, Dr. Muhammad Khalid, Dr. Muhamamd Yousaf being unnecessary and after tendering into evidence copy of judgment and decree of Judge Family Court dated 30.04.2009 (Exh. PE) and that of learned appellate court dated 30.09.2009 (Exh.PF), closed the prosecution evidence.
7. The appellant/convict, namely, Muhammad Anwar was examined under section 342, Cr.P.C. wherein he pleaded false implication. The appellant neither opted to make his statement on oath under section 340(2), Cr.P.C., nor produced any defence evidence.
8. The learned trial court after evaluating the evidence and considering the merits of the case held the appellant guilty as mentioned above, convicted and sentenced him as detailed above. Now this appeal.
9. Learned counsel for the appellant contends that there was unexplained delay of about three months in lodging the FIR; that all family members of the appellant along with the female were nominated in the FIR being accused, which smacks mala fide on the part of the complainant/ victim; that all the co-accused of the appellant were declared innocent during the investigation; that private complaint was filed by the complainant after about 9/10 months of the occurrence which makes the prosecution story doubtful; that the alleged occurrence took place in a village having population/ six thousand people but no independent witness was cited by the prosecution despite the fact that Akhtar and Shabbir, during the investigation, also claimed to have witnessed the occurrence; that the version of the complainant was improbable and unbelievable; that no number, colour or make of the car or motorcycle finds mention in the FIR or even in the private complaint; that no mark of violence was observed by the Medical Officer during medical examination of the victim; that she was the consenting party and have not denied her thumb impression on Exh.DA and Exh.D.B; that the victim was not recovered from the appellant; that no cross matching of the semen was conducted in this case; that co-accused of the petitioner with similar role have been acquitted by the learned trial court on the same set of evidence and as no independent evidence was forthcoming on the record thus, the appellant was to be treated alike; that compromise have also been arrived at between the parties; that the case of prosecution was full of discrepancies/ doubts which is always resolved in favour of the accused. Concluding his arguments, learned counsel submitted that the prosecution miserably failed to prove its case, thus, he is entitled to acquittal.
10. Learned Additional Prosecutor General opposed this appeal with vehemence and submitted that the offence under section 365-B, Cr.P.C. was not compoundable; that the civil suit filed by the appellant against the victim and her husband for declaration was dismissed by the civil court; that delay in such like matters does not adversely affect the case of prosecution and as the victim was recovered at a belated stage, thus, no mark of violence was observed by the Medical Officer, no fatal to prosecution.
11. I have considered the points raised at the bar and have gone through the record.
12. A review of the record demonstrates that the occurrence in this case took place on 7/8th May, 2008 at Fajarwela. The victim was going to fetch milk. She was intercepted by the accused, who forcibly pushed her in a car and went away. This occurrence was witnessed by Muhammad Akram and Muhammad Munir. They were closely related to the complainant being his paternal cousin whereas, all the accused also closely related to the appellant. Nasreen Akhtar and Nusrat were his real sisters, Din Muhammad alias Dalal was his real father and Muhammad Siddique and Nazir (PWs) were his "behnoi". The motive behind this occurrence was that the complainant forbade the accused persons not to move in front of his house.
All the accused were allegedly armed with weapons at the time of abduction and raised lalkara that whosoever would come to rescue the victim, would be done to death.
At this stage, another aspect of the matter cannot be lost sight of that the accused were given chase by Akram (given up PW) on his motorbike for about two hours. He was educated/ literate. It was in the evidence that the accused emerged at the crime scene on a car and two motorbikes but none of the witness including the victim mentioned the numbers of those vehicles. The occurrence was reported to the police after more than two months. No plausible explanation for the registration of FIR at such belated stage was offered either by the complainant or the prosecution witnesses. No such explanation finds mention even in the FIR and the private complaint (Exh.PB) was also filed after nine months of the registration of FIR. The complainant, admittedly, was not the eye-witness. He was told about this occurrence by Muhammad Akram and Muhammad Munir. Their conduct at the crime scene was also improbable/ unnatural.
The victim allegedly was abducted by the accused and lifted/shifted from one place to the other but all of them were declared innocent during the investigation except the appellant. The male co-accused were not medically examined. Their potency test was not conducted. The victim levelled the allegation of committing gang rape against the male members of the appellant's family but no cross matching of the semen was conducted and available on the file to determine the charge or to saddle the accused with their responsibility of committing the crime. The appellant though has taken the plea of contracting marriage with the victim, disbelieved by the learned trial court but the victim has not denied the filing of the private complaint before the Illaqa Magistrate against her parents for causing criminal intimidation. Her statement recorded by the learned Illaqa Magistrate (Exh.DB) is also available on the file, however, she stated that her thumb impression on those documents were result of duress/ coercion.
13. Admittedly, the victim was medically examined on 15.07.2008 at 04:30 p.m. after more than two months of the occurrence. The Medical Officer observed no mark of violence on any part of her body. She observed old torn and healed hymen which admitted two fingers easily. In her cross-examination, the Medical Officer admitted that the victim was habitual prior to her examination and she also has not ruled out the possibility that the victim was consenting party. No report of the semen grouping was procured by the prosecution or produced during trial which is a valid piece of evidence in such like cases when there are allegations of more than one person of committing rape. Ref: "The State and others v. Abdul Khaliq" (PLD 2011 SC 554). Apart from the victim there was no eye-witness of the occurrence. Undoubtedly conviction can be awarded on the basis of sole testimony of the victim if it inspires confidence, rings true and corroborated by other pieces of evidence which is not forthcoming in this cake.
At this stage, it may be mentioned that the co-accused of the appellant have been acquitted by the learned trial court on the same set of evidence and he is thus also to be treated alike as no corroboration is forthcoming on record. The appellant was disable as he has got only one arm. The swab sent to the Chemical Examiner was found to be stained with semen but there is no semen grouping to connect the appellant with this crime. The date, time and place of committing rape is not suggested by record. The version of the complainant appears to be improbable and result of consultation/ deliberation as the FIR was registered with unexplained delay of three months.
Now it has been settled by the Hon'ble apex Court that benefit of doubt can be extended on the basis of a single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused not as a matter of grace/ concession - but as a matter of right. Reliance is placed on "Muhammad Akram v. The State" (2009 SCMR 230).
15. In view of the above, instant Criminal Appeal No. 565 of 2011 is accepted. The judgment dated 03.03.2011 rendered by the learned trial court is hereby set aside. The appellant is acquitted of the charges, He is in jail and be released forthwith if not required in any other criminal case.