SHAUKA T ALI RAKHSHANI, J.---Appellant Muhammad Usman seeks annulments of the judgment dated 11th of August, 2008 ("Impugned Judgment ") authored by a Judge of Special Court constituted under Juvenile Justice System Ordinance, 2000 ("Trial Court ") in a case bearing FIR No. 254/2004 (Ex.P A/1) dated 18th of May 2004, whereby appellant Muhammad Usman was held culpable of committing zina-bil-jab r with Mst. Yasmin (PW.1) in her house within the precincts of Police Station Saddar , District Narowal and was convicted and sentenced under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 ("Hudood Ordinance ") to suffer 15 (fifteen) years' R.I as well as under section 458 of The Pakistan Penal Code [XLV of 1860] ("Penal Code ") to suffer 5 (five) years' R.1 with fine of Rs.10,000/- (ten thousand) and was also directed to serve four months' S.I further , if fine is not paid by him to the victim whereas under the charge of section 392 of The Penal Code the appellant earned acquittal. All the sentences were directed to run concurrently with the benefit of section 382-B of The Code of Criminal Procedure (Act V of 1898) ("The Code").
2. Geneses of the instant case commences on 18th of May 2004 at about 05:45 in evening on the application (Ex.P A) submitted by complainant Mst. Sughran Bibi (PW.2) with the averments that on 18th of May 2004 at about 1:00 am at night while she was asleep in her house the appellant Muhammad. Usman trespassed by scaling the boundary wall and committed zina-bil-jabr with her daughter Mst. Yasmin (PW.1), receiving injuries on her resistance too. According to her, in the meanwhile she woke up and tried to grip the appellant but was injured by him as well, however , on her clamor , the felon fled away taking gold ornaments consisting of a locket, a pair of ear rings and two rings of her daughter .
Abdul Razzaq SI, (PW.7) got medically examined Mst. Yasmin (PW.1) and after, registration of the case visited the place of occurrence; prepared rough site plan (Ex.PE) and recorded the statements of witnesses under section 161 of The Code. Lady Dr. Fakhar Nazir (PW.4) medically examined Mst. Yasmin (PW.1) on 18th of May 2004 at about 05.10 p.m. and issued Medico Legal Certificate (Ex.PB) and made the following observations:- "1. Clothes were not torn.
2. No signs of violence on her body with the exception of a bruise of about 3 x 2 cm, below left eye.
3. Pelvic Examination. i. No signs of fresh tears/lacerations were on vulva vagina. ii. Hymen torn and healed. iii. Vagina admitted two fingers easily . iv. Two vaginal swabs were taken and sent to Chemical Examiner for detection of semen.
The swabs were sent to the office of Chemical Examiner , Lahore and according to report of said office, the swabs were found stained with semen. So the possibility of rape/ intercourse cannot be ruled out."
Dilawar Hussain ASI, (PW.6) arrested appellant Muhammad Usman on 3rd of June, 2005 and got him medically examined by Dr. Saadat Ali Khan, Medical Officer (PW.5) on 8th of June 2005 at about 4:25 p.m. He opined that appellant is 17 years old and his secon dary sex characters were well developed. According to him, there wits nothing to suggest that he was unable to perform sexual act, thus issued MLC as (Ex.PC).
3. On conclusion of the investigation, the appellant was booked and sent up to the Court of Sessions Judge, Narowal, which after a full dress trial held appellant Muhammad Usman guilty of the charge and recorded conviction and sentence through a judgment dated 3rd of September , 2007. Being aggrieved from the said judgment, a Criminal Appeal bearing No.177- L/2007 was filed before this Court, which on 27th of February 2008 was partly allowed; set aside the conviction and sentence of the appellant for want of jurisdiction and remanded the case for de novo trial by a Court constituted under the Juvenile Justice System Ordinance, 2000 for the appellant being a minor .
4. On 11th of March 2008, the appellant was indicted afresh by means of formal charge, which was denied by the appellant, claiming trial; henceforth, the prosecution to substantiate the indictment produced as many as 10 (ten) witnesses. At last, the appellant was confronted with the allegations and evide nce brought forwarded by, the prosecution as contemplated under section 342 of The Code; he countered the blames and evidence so put forth by the prosecution and pleaded to have been roped in due to some land and water dispute. Neither , he recorded his statement on oath as envisaged under section 340(2) of The Code nor produced any evidence in defence.
5. The learned trial Court on 11th of August 2008 returned a verdict of guilt and thereby convicted and sentenced the appellant in the terms mentioned herein before in the preceding para (supra) in absence of appellant, who subsequently on 4th of April, 2018 surrendered and preferred an appeal on 23rd of April, 2018 before the Hon'ble Lahore High Court, Lahore but on 22nd of March, 2019 the appeal was dismi ssed as withdrawn for want of jurisdiction. The instant Criminal Appeal bearing No.2/L of 2019 was put in before this Court on 15th of April, 2019 wedded with an application bearing C.M.A. No.4/L of 2019 for condonation of delay , which was allowed for the reasons contained in the application, keeping in view the sentence awarded to the appellant.
6. We have minutely and anxiously gone through the entire record cover to cover with the able assistance of Mian Shahid Abbas, Advocate appearing on behalf of appellant and Mirza Usman, learned Deputy Prosecutor General, Punjab representing the State.
7. Criticizing the impugned judgment, learned counsel for the appellant urged that the findings arrived at by the learned trial Court are contrary to the evidence available on record which otherwise suffers from material contradictions as the prosecution witnesses have failed to support the prosecution version narrated in the FIR as well as pleaded by victim Mst. Yasmin (PW.1). He maintained that the complainant Mst. Sughran Bibi (PW.2) and her husband Irshad (PW.3) stated to be the eye-witnesses of the case have resiled from their previous statements but the learned trial Court has failed to take into consideration such aspect of the matter . According to him, the statement of victim Mst. Yasmin (PW.1) is self-contradictory and improbable, which does not get support from any independent evidence including medical evidence as well as the account furnished by her parents, thus the instant case being a case of no evidence makes the impugned judgment nullity in the eyes of law, which deserves to be set aside, culminating into the acquittal of the appellant.
Conversely , learned DPG Punjab for State vehemently opposed the contentions so put forth by the learned counsel for appellant and maintained that the verdict impugned herein has been recorded in accordance with the evidence available on record as the testimony of the prosecution witnesses is confidence inspiring and trustworthy , which prevailed the mind of the learned trial Court while holding the appellant culpable of the charge. He supported the impugned judgment and prayed for dismissal of the appeal.
8. Meticulous recital of the evidence on record suggests that the case of the prosecution leaned upon the solitary testimony of victim Mst. Yasmin (PW.1) and medical evidence albeit the prosecution produced her mother complainant Mst. Sughran Bibi (PW .2) and her father Irshad (PW .3) but both of them were declared hostile.
Ordeal narrative of victim Mst. Yasmin (PW.1) was that on the fateful night, while she was asleep in the courtyard of her house, the appellant entered while scaling over the wall; woke her up and after being threatened not to make noise was taken into a room. She testified that firstly her gold ornaments were removed and then she was subjected to zina and that while the appellant was running away on her clamor , her parents got alerted, however , the accused ran away , who was carrying a pistol in his hand. She maintained that she went to the police station, wherefrom she was referred to hospital and medically examined. During cross-examination, when confronted with her earlier statement regarding being threatened not to raise voice and that the accused firstly removed her ornaments and that the accused was about to run away when she raised alarm; her statement was found not so recorded. Mst Yasmin (PW.1) admitted to be married aback two years of the occurrence and denied to have been divorced but stated to have obtained Tallaq. Victim (PW.1) also admitted that she did not raise any voice at the time when she was being raped albeit she was not allowed to outcry . She replied that within a half minute zina was consumed with her, whereafter the appellant ran away . According to her, the whole episode of the felony took 10
(ten) minutes, commencing from entering and leaving the house. She admitted that she did not raise any alarm during said 10 (ten) minutes. She stated to have handed over her clothes to the police and not to have taken bath till next morning but surprisingly no clothes were secured by the police and sent to the Forensic Science Laboratory ("FSL") for analysis report. According to victim (PW.1), she reached, the police station on the next morning at about 7/8 A.M for registration of the case and that after half an hour of the registration of the case she was medically examined but the record suggests otherwise.
Contents of the FIR lodged by Mst. Sughran Bibi complainant (PW.2) suggests that she and her daughter Mst.
Yasmin (PW.1) were beaten by the appellant and both sustained injuries but neither there is any medical report regarding any injuries on the person of complainant (PW.2) nor victim (PW.1) in her statement suggested to have been beaten, which contradicts the narration incorporated in the FIR. Furthermore, perusal of the FIR nowhere suggests that the victim (PW.1) was taken into a room of the house and was subjected to zina-bil-jabr as stated by victim (PW.1). The presence of Irshad (PW.3) has not been shown by the victim (PW.1) in her statement, contradicting the FIR (Ex.P A/1).
Astonishingly , Mst. Sugrhan Bibi (PW.2) took a somersault by denying the entire story of prosecution so incorporated in the FIR (Ex.P A/1) lodged by her; therefore, she was declar ed hostile by the prosecution.
Complainant (PW.2) in the witness box testified that 3/4 years ago, while she was asleep in the courtyard of her house, she heard a noise and that someone fled away , whom she did not see. During cross-examination, she denied that she had nominated the appellant in her report (Ex.P A) and voluntarily stated that the contents of complaint (Ex.P A) were not read over to her and that the police had obtained her thumb impression on a blank paper . Complainant (PW.2) categorically denied that she had got recorded her statement in her complaint (Ex.P A) that the accused present in the Court committed zina with my daughter and that he took away ornaments of her daughter . She also denied that her daughter was beaten. Irshad (PW.3) father of the victim in the Court testified that he know nothing about the occurrence, henceforth he was declared hostile. He denied that he had suppressed the real facts and that his statement was got recorded under Section 161 of The Code by the Investigating Officer.
Even he denied the suggestion that he was present in his house at the time of occurrence and frankly denied that the accused present in the Court committed zina with her daughter .
9. We are mindful of the application of Article 150 of the Qanun-e-Shahadat Orde r, 1984 ("Order of 1984"), which deals with the hostility of a witness and opportunity of cross-examination. Mst. Sughran Bibi (PW.2), apparently resiled from her previous statement was cross-examined, after being declared hostile. As per ratio deducted by the august Supreme Court of Pakistan in the cases titled as "Muhammad Boota v. The State" (1984 SCMR 560), reiterated in the cases of "The State v. Abdul Ghaf far" (1996 SCMR 678), "Sarfraz Gul v. The State" (PLD 2004 SC 334) and followed by this Hon'ble Court in case of "Abdul Wahid Bhurt v. Ashraf" (2019 YLR 487) it was held that a witness, who is unfavorable to the prosecution is not necessarily hostile and that the statement of hostile witness and that can be taken into consideration subject to strong corroborative evidence.
As far as Irshad (PW.3) is concerned, we disapprove the action of learned trial Court for declaring him a hostile witness and allowing the prosecutor to cross-examine him for the reason that he was neither complainant nor marginal witness to any recovery memo, having his signature on any of the said documents, which is antagonistic to the dicta expounded in the case of "Muhammad Sarfraz v. The State throu gh P. G. Punlab and another"
(PLD 2013 Supreme Court 386). For convenience, para No.8 of the judgment is reproduced herein below:- The argument that if the prosecution is allowed to confront a witness with his previous statement recorded under section 161, Cr.P.C. during the course of cross-examination after being declar'd hostile, it would amount to using it for corroboration rather than contradiction would be just academic when we are quite clear in our mind that it cannot be used by the prosecution for the purpose of contradicting the witness. We, therefore, hold that the prosecution cannot be permitted to confront a witness with his previous statement recorded under section 161 of the Cr .P.C. for the purpose of contradicting him even after being declared hostile."
10. Of course, earlier the testimonies of hostile witnesses were judged and considered to hold an accused culpable of the crime, while applying the dicta based on the principle of "sifting of the grain from the chaff'. The Hon'ble Supreme Court through numerous judgments ruled out the applicability of the maxim "falsus in uno falsus in omnibus' within the precincts of Pakistan; (See; "Ghulam Muhammad and others v. Crown" (PLD 1951 Lah. 66), "Tawaib Khan and another v. The State" (PLD 1970 SC 13), "The State v. Mushtaq Ahmad" (PLD 1973 SC 418), "Khairu and another v. The State" (1981 SCMR 1136), "Muhammad Nawaz v. The State" (1984 SCMR 190), "Anwar and another v. The State" (2001 SCMR 1518 ), "Umar Hayat v. The State" (2007 SCMR 1296 ), Muhammad Afzal v. The State" (2017 SCMR 1645 ) and "Munir Ahmad and another v. The State and others "
(2019 SCMR 79 ).
However , the Hon'ble Supreme Court of Pakistan in a notice case of false statement of Police Constable Khizar Hayat reported in (PLD 2019 Supreme Court 527), while elaborately discussing the judgment supra, over ruled the application of the principle "sifting of the grain from the chaff' and got resurre cted the demised rule based on the maxim "falsus in uno falsus in omnibus",making applicable by observing that Mohammad Munir , HCJ in Ghulam Muhammad's case ibid had built an argument around the tendency in witnesses in the Province of Punjab, who mix the truth with falsehood; ignoring the tendency of the witnesses of other parts of the country . Referring to later cases; it was remarked that the observation made by Mohammad Munir , HCJ was extended as a matter of course, without any discussion at all. Quoting various Verses from Holy Quran and traditions of Holy Prophet (PBUH), it was held that in Islam giving testimony its due importance and weight is an obligatory duty and those who stand firm in their testimonies are among the people of righteousness and faith, even if against oneself or a relative and Islam forbids concealing the evidence because giving false testimony has many evils for it supports falsehood against truth and promotes injustice and aggression against justice.
On the above touchstone, the narration got recorded in the FIR by complainant Mst. Sughran Bibi (PW.2) and denied by her during cross-examination, when confronted in the court, has made her statement unreliable, distrustful and unworthy of reliance, pursuing us to rule out her statement from consideration, more particularly when she testified that police had obtained her signature On a blank paper and that the report was not read over to her.
11. Strict scrutiny of the testimony of victim Mst. Yasmin (PW.1) as discussed hereinabove in view of the deposition made by Mst. Sughran Bibi complainant (PW.2) and her father Irshad (PW.3) has firmly persuaded us to conclude that the statement of victim Mst. Yasmin (PW.1) is improbable, unconvincing and contradictory with reference to the factum of her being taken into a room without making any resistance in the prese nce of her parents 'and siblings and having been subjected to forcible sexual intercourse within a spell of half minute. Her statement also does not reconcile even with the narration incorporated in the FIR; wherefrom her mother complainant Mst. Sughran Bibi (PW.2) resiled. Even-so, her father Irshad (PW.3) denied the entire occurrence of victim Mst. Yasmin (PW.1) being subjected to zina-bil-jabr as well as taking away the gold ornaments.
Finding of acquittal under Section 392 of the Penal Code has not been assailed by victim Mst. Yasmin (PW.1) or by complainant Mst. Sughran Bibi (PW.2), endorsing the testimony of complainant Mst. Sughran Bibi (PW.2) and father of the victim Irshad (PW .3) that appellant was not the culprit.
12. Admittedly , neither the pistol having been used in the crime nor the plundered gold ornaments have been recovered from the appellant to corroborate the solitary statement of the Mst. Yasmin (PW.1), which otherwise does not inspire confidence, truthful and trustworthy .
13. In so far as the medical evidence is concerned, it may be observed that it has never been considered to be corroborative piece of evidence rather held to be only confirmatory in nature. Undeniably , Mst. Yasmin (PW.1) was married two years aback the alleged occurrence, thus, rupture of hymen, old and healed; admitting two fingers easily is natural whereas no sign of tears and laceration on vagina did not add anything to the case of prosecution as signs of struggle figures nowhere. MLC (Ex.PB) reflect no sign of violence on her body with the exception of a bruise of about 3 x 2 cm below left eye, which is also of no help to the prosecution's case as it has never been the case of victim Mst. Yasmin (PW.1) that she was beaten by the appellant, causin g injury below her left eye. The testimony of Lady Dr. Fakhar Nazir (PW.4) opined that the swabs were sent to the office of Chemical Examiner , Lahore and according to report (Ex.PK) of the said office, the swabs were found stained with semen. It is also not worthy of reliance firstly because grouping of the semen were not done to match the semen of the appellant.
Potency of the appellant with regard to sexual intercourse is immaterial and inconsequential in the attending circumstances of the case.
Delay in the FIR of about 16 hours and 45 minutes in registration of the case has not been explained by the prosecution, giving rise to suspicion that the FIR was lodged after consultation and deliberation to cook up a false story and implicate the appellant.
14. Succinctly , the prosecution has miser ably failed to prove the culpability of the appellant and the verdict of guilt recorded by the learned trial Court was found by us to be based on the reasons alien to the prevalent law and evidence; thus we felt it just to set at naught the impugned judgment dated 11th of August 2008 and record acquittal of the appellant of the charges by means of our short order dated 12th. of November 2019, following the reasons mentioned herein before.