TARIQ SALEEM SHEIKH, J. By this consolidated judgment I shall decide Crl. Appeal Nos.81/2012/BWP and 85/2012/BWP as both these matters arise from judgment dated 21.2.2012 passed by the learned Additional Sessions Judge, Chishtian, in private complaint titled "Azharan Bibi v. Zia alias Ziai & 4 others" under Sections 365-B & 376 PPC in case FIR No.120/201 1 dated 8.3.201 1 registered at Police Station City Chishtian, District Bahawalnagar .
2. Brief facts of the case are that on 28.4.201 1 PW-1 Azharan Bibi (the "Complainant") filed a private complaint (Exh.P A) stating that she was residing with her mother at Basti Jamal Shah, Mauza Kaley Shah, Tehsil Chishtian.
About three years back her husband turned her out of his house whereupon she filed a suit against him at Chishtian for recovery of maintenance of her children. About four months ago when she was returning home after attending the Court, Zia alias Ziai and Nazar Muhammad intercepted her near the railway line behind Minhaj Travels and forcibly made her sit on their motorcycle and sped. Muhammad Hussain, Muhammad Tariq and Maqbool Hussain alias Bagga joined them on the way and they took her to Muhammad Hussain' s house. There Zia alias Ziai repeatedly raped her while his co-accused guarded the place. As a result, she got pregnant. The Complainant further stated that about 11/2 months ago she managed to escape from the captivity of the accused and reached home. She told PWs Bashir Ahmad and Atta Muhammad about the occurrence and then filed an application under Section 22-A Cr.P.C. before the learned Additional Sessions Judge, Chishtian, for registration of case which was accepted. After that she appeared before the DPO and produced her medico-legal report and under his orders case FIR No.120/201 1 (Exh.PB) was registered. According to the Complainant, the Investigating Officer connived with the accused and recommended the case for cancellation which constrained her to institute private complaint Exh.P A.
3. The learned Additional Sessions Judg e recorded cursory evidence produced by the Complainant and holding that her complaint had substance summoned all the accused for trial. Nazar Muhammad and Muhammad Tariq did not appear and were declared proclaim ed offenders after due process. Howe ver, Zia alias Ziai, Muhammad Hussain and Maqbool Hussain alias Bagga joined the proceedings. On 23.9.201 1 the learned Court framed charge against them to which they pleaded not guilty and claimed trial.
4. During the trial the prosecution produced two witnesses while one was examined as Court Witness. Complainant Azharan Bibi (PW-1) and Atta Muhammad (PW-2) provided ocular account of the incident while Lady Dr. Shaista Khalid (CW -1) furnished medical evidence.
5. On completion of the prosecution evidence the learned trial Court examined the accused under Section 342 Cr.P.C. They denied the allegations levelled against them and professed innoce nce. They stated that they had taken land on lease from Mudassar which they cultivated along with Saifullah and Muhammad Ashraf. Cattle of Saifullah were stolen and FIR was registered against Complainant' s real brother Irshad alias Shaddi and Falak Sher. The Appellants stated that their brother was a witness in that case and alleged that due to that grudge the Complainant had framed them. They neither got their statements recorded on oath under Section 340(2) Cr.P.C. nor examined any witness in their defence. However , Muhammad Hussain submitted an attested copy of the cancellation report in case FIR No.120/201 1 under Section 376 PPC as Exh.DB/1. The other accused also relied upon it.
6. On the conclusion of the trial, vide judgment dated 6.6.2016, the learned Additional Sessions Judge convicted and sentenced Zia alias Ziai, Muhammad Hussain and Maqbool Hussain alias Bagga as under: Zia alias Ziai: i) Convicted under Section 376(2) PPC and sentenced to imprisonment for life with fine of Rs.100,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under Section 365-B PPC and sentenced to rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of three months.
Muhammad Hussain: Convicted under Section 365-B PPC and sentenced to rigorous imprisonmen t for seven years with fine of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of three months.
Maqbool Hussain alias Bagga: Convicted under Section 365-B PPC and sentenced to rigorous imprisonmen t for seven years with fine of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of three months.
The sentences of imprisonment awarded to Zia alias Ziai were ordered to run concurrently . Benefit of Section 382- B Cr.P.C. was extended to all the convicts.
7. Zia alias Ziai has filed Crl. Appeal No.81/2012/BWP while Muhammad Hussain and Maqbool Hussain alias Bagga have preferred Crl. Appeal No.85/2012/BWP before this Court against their conviction and sentence.
8. In support of Crl. Appeal No.81/2012/BWP Syed Zeeshan Haider , Advocate, contended that the prosecution had failed to prove its case against the Appellant and his co-convicts beyond doubt. The learned trial Court had grossly misread the evidence which had caused serious miscarriage of justice. He argued that, firstly , the prosecution story was unnatural and unbelievable. The Appellant and his co-accused who were statedly not armed, could not abduct the Complainant from a public place in broad daylight and then keep her in their house in the heart of the village for 11/2 months without being caught. Seco ndly, the prosecution case essentially rested on the statement of the Complainant which was not reliable being riddled with contradictions. Thirdly , DNA was necessary to determine paternity of the child but the Complainant refused it. In the absence of that test the conviction recorded against the Appellants could not be sustained. Fourth ly, FIR No.120/201 1 Exh.PB, which the Complainant had lodged before the institution of private complaint Exh.P A, was cancelled. The Investigating Officer of the said FIR was a material witness but he was not examined at the trial which had caused prejudice to the Appellant and his co-convicts.
Lastly , the prosecution case was maliciou s. The Complainant wanted to nail the Appellant, his family and friends for supporting Saifullah. The learned counsel prayed that Crl. Appeal No.81/2012/BWP be accepted and the Appellant be acquitted of the charge.
9. Ch. Imran Ashraf, Advocate, who represented Appellants Muhammad Hussain and Maqbool Hussain alias Bagga in Crl. Appeal No.85/2012/BWP , adopted the arguments of Syed Zeeshan Haider , Advocate, and prayed for their acquittal.
10. The learned Assistant District Public Prosecutor assisted by the learned counsel for the Complainant, Ch. Muhammad Azhar , Advocate, vehemently opposed the appeals. He contended that there was no motive for the Complainant or Atta Muhammad (PW-2) to lodge a false case against the Appellants. The fact that the Complainant got pregnant as a result of the incident and delivered a baby was sufficient to prove the charge. He prayed that the Appellants? appeals be dismissed and their conviction and sentence be upheld.
11. Arguments heard. Record. Perused.
12. The prosecution case is that the Appellants and their two co-accused, Nazar Muhammad and Muhammad Tariq (since P.O.), abducted Complainant Azharan Bibi (PW-1) from near the railway line (behind Minhaj Travels) in Nurpura Chishtian, took her to the house of Appellant Muhammad Hussain in Chak No.52/Fateh where she remained confined for about 11/2 months until she managed to escape. During this period Appellant Zia alias Ziai repeatedly raped her as a result of which she got pregnant. Appellants Muhammad Hussain, Maqbool Hussain alias Bagga and the other accused (since P .O.) protected and facilitated Appellant Zia alias Ziai in the of fence.
13. The Complainant, Azharan Bibi (PW-1), is the prime prosecution witness who deposed in line with the private complaint Exh.P A. In The State and others v. Abdul Khalip and others (PLD 2011 SC 554) the Hon'ble Supreme Court of Pakistan authoritatively held that the principle that sole testimony of the prosecutrix should be accepted is not an absolute rule. Relevant excerpt is reproduced hereunder: "It depends upon the facts and circumstances of each case and has to be assessed by the Court on the basis of the entire evidence on the record whether the sole testimony of the victim should be believed or not, particularly in the light of her cross examination, and the other evidence produced by the prosec ution; if on account of totality of facts the Court is of the view that such a statement should not be believed and for that good reasons are assigned it cannot be said that any illegality has been committed by the Court in this behalf. Thus, rule pressed into service by the learned counsel shall not apply to each and every case of rape, as a matter of routine and course, because it is not the command of any law/statute, that in deviation of the general principles of jurisprudence mentioned above, the accused must be put to the test of strict liability and should be asked to prove his innocence because the prosecutrix's version under all circumstances should be taken as correct."
14. I have carefully read Complainant Azharan Bibi's deposition and found that it does not inspire confidence for a number of reasons. Firstly , she stated that when the occurrence took place she had strained relations with her husband and was living with her mother at Basti Jamal Shah, Mauza Kalay Shah, Tehsil Chishtian. However , she did not produce her mother during the trial to prove this fact. Secondly , Azharan Bibi testified that she had filed a suit against her husband in the Family Court at Chishtian for recovery of maintenan ce of children and was returning home after attending a hearing when the Appellants and their co-accused abducted her. However , she neither gave the precise date of the alleged happening nor furnished any evidence to prove the fact that she had filed a family suit and it was fixed for hearing on the fateful day. During cross-examination she could not even tell the judge's name in whose court it was pending. Thirdly, the prosecution case, as already discussed, was that during the days when the occurrence took place she was residing with her mother . Atta Muhammad (PW-2) was her real maternal uncle and he deposed that he lived only two houses away from the Complainant's house. It is intriguing that although Azharan Bibi remained missing for about 11/2 months, neither her mother nor PW Atta Muhammad reported the matter to the police. Fourthly , the prosecution alleged that the Appellants and their co-accused abducted the Complainant from near the railway line in Nurpura Chishtian and took her to Chak No.52/Fateh and while doing so they also passed Dharanwala Adda. Although the precise distance of their travel has not come on record, it cannot be denied that they went through some rushy areas. There is no explanation why Azharan Bibi did not ask for help if she was being abducted. Fifthly , during investigation the motorcycle used in the commission of offence was not recovered. Sixthly , there is no evidence that during investigation the Complainant showed that house to the police where she was confin ed. Lastly , there must have been some unusual movements in the house in question. It is not understandable how they went unnoticed over such a long period of time.
15. Scientists and lawyers agree that DNA identification is capable of producing reliable results. In Salman Akram Raja and another v. Government of Punjab through Chief Secretary , and others (2013 SCMR 203), the Hon'ble Supreme Court highlighted utility of the DNA test as follows: "In this regard it is to be noted that the administration of DNA test in order to determine the truthfulness of the allegation of crime is not new. Initially the DNA was not so reliable, therefore, the Courts often excluded it from the evidence and did not base the conviction on it. However , in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling has revolutionized forensic science. Now DNA test provides the Courts a mean of identifying perpetrators with a high degree of confidence. By using the DNA technology the Courts are in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused. (sic) Reference may be made to the case of United States v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results."
In the same judgment the apex Court ruled that consent of the accused was not required for conducting DNA test or any blood test to determine veracity of the allegations levelled against him. However , the victim could not be forced for it as that would lead to "infringement of personal liberty".
16. In the instant case, Complainant Azharan Bibi specifically alleged that Appellant Zia alias Ziai impregnated her and, according to her learned counsel, she delivered a baby who is still alive. DNA test was vital for determination of paternity of the child - and consequently the fate of the case - but it was not conducted. During cross- examination the Complainant admitted that the Investigating Officer asked her to have that test but she refused. It is true that in view of the Hon'ble Supreme Court's judgment in Salman Akram Raja's case , supra, she could not be forced for it but this Court can legitimately draw an adverse presumption against her under Illustration (g) of Article 129 of the Qanun-e-Shahadat, 1984. Reliance is placed on Muhammad Siddique v. The State and others (2019 SCMR 1048 ).
17. The prosecution seeks corroboration of its case from Atta Muhammad (PW-2). However , his testimony is of no help to it because it is all hearsay . He is neither the eye-witness of the alleged abduction nor rape nor any other relevant fact. In his cross-examination he admitted that - "With regard to the occurrence all the episode was told by the Complainant to me and except this no one else told anything. It is correct that whatever was told to me by the Complainant, the same is being deposed in this court today . In my personal knowledge, with regard to the occurrence, I do not know . Neither do I know the date of occurrence, nor the date of coming back of the Complainant to her home, because I am illiterate."
18. The learned trial Court summoned Dr. Shaista Khalid as CW-1. She deposed that on 9.3.201 1 she examined Azharan Bibi at the THQ Hospital, Chishtian. She did not notice any marks of violence on her body but found that she was 14 weeks pregnant. Medical evidence is also of no avail to the prosecutio n because it only indicates that the Complainant was subjected to sexual intercourse. It neither shows that it was against her will nor that Appellant Zia alias Ziai had perpetrated it. In somew hat similar circumstances, the Hon'ble Supreme Court extended benefit of doubt to the accused in the case reported as Muhammad Javed v . The State ( 2019 SCMR 1920 ).
19. As already noted, Complainant Azharan Bibi initially got registered FIR No.120/201 1 Exh.PB in respect of the occurrence but that was cancelled. (The cancellation report is Exh.DB). During the trial conducted in criminal complaint Exh.P A the prosecution produced two witnesses while one was examined as Court Witness. The Investigating Officer was not summoned. The learned counsel for the Appellants contend that this has prejudiced the Appellants.
20. In a complaint case, generally speaking, the Complainant has no interest in examining the Investigating Officer.
This is for obvious reasons. However , Section 540 Cr.P.C. empowers the trial Court to summon him. The Hon'ble Supreme Court had the occasion to consider this section in detail in Muhammad Azam v. Muhammad Ipbal and others (PLD 1984 SC 95). It observed that the provision is divided into two parts: one where it is only discretionary for the court to summon a Court Witness suo motu or on application, and the second part where it is mandatory for the court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned should appear to the Court to be essential for the just decision of the case. The apex Court added: "The use of the expression appears to it' in the second part of Section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet it must in any case at least appear' to the Court that it is essential, before taking action under the said part of Section
540. And for that matter as observed earlier , it would not be necessary for the trial Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference from the material including that which is already available to the Court in any form - admitted evidence or material otherwise lying on the judicial and other files before it."
Muhammad Azam' s case was reaf firmed in Mehrzad Khan v . The State ( PLD 1991 SC 430 ).
21. In a recent case, Allah W asaya v . The State etc. ( 2018 MLD 489 ), this Court held: "The main purpose of judicial proceedings is to find out the truth. Section 540 Cr.P.C. also seeks to achieve that object. It enables the Court to get to the truth and to arrive at the correct and just conclusion and thus obviates the possibility of miscarriage of justice. This argument has not only been accepted but reiterated in a number of cases, inter alia including Maulvi Hazoor Baksh v. The State (PLD 1985 SC 233), Abdul Salam v. The State (2000 SCMR 102), The State v. Muhammad Yaqoob and others (2001 SCMR 308), Muhammad Murad Abro v. The State, through A.G. Balochistan (2004 SCMR 966), Shahbaz Masih v. The State (2007 SCMR 1631 ) and Nawabzada Shah Zain Bugti and others v. The State (PLD 2013 SC 160). This power can be exercised even where a person is not cited as a witness in the challan case, or as the case may be, in the private complaint. The only condition is that he should be a material witness and his decision should be imperative for the just decision of the case."
22. The Investigating Officer is an important witness in criminal cases inasmuch as he investigates the matter , records the statements of the witnesses, goes to the spot for objective findings, prepares the case diary , receives documents during the probe and after collecting the evidence submits his report for or against the prosecution. The effect of not examining the Investigating Officer has been considered in a number of cases. In Mominuddin SK. and others v. Crown (5 DLR 141) the Dacca High Court held that failure to examine the Investigating Officer had deprived the defence of a very valuable opportunity to impeach credibility of the prosecution witnesses. Such a serious defect could not be cured by a direction to the jury that they are to make strong presumption against the prosecution on account of the omission. Consequently , re-trial was ordered. A.K.M.Reza and others v. The State (PLD 1958 Dacca 1 11) and Muhammad Ramzan v . The State (2000 PCr .LJ 1241) follow the same view .
23. On the other hand, in Muhammad Sharif and another v. The State (1972 PCr.LJ 1259), the Court held that the Investigating Officer was an essential witness and, in view of the fact that the accused had suffered the agony of trial for three years, declined to order a re-trial and reduced their sentence to what they had already undergone.
In Muhammad Yaqoob v. The State [PLJ 1980 Cr.C. (Lahore) 98], the Investigating Officer was given up. The Court remanded the case holding that this had left the entire investigation unproved and caused prejudice to the defence. However , in view of the confession of the accused it upheld his conviction but reduced sentence of 10 years to five years. Similarly , in Muhammad Inayat v. The State (1989 MLD 4074 ) the Court held that ordinarily non-production of Investigating Officer would cause prejudice to the accused and the case should be remanded.
Nevertheless, on the request of the counsel, while maintaining the conviction reduced his sentence from one year R.I. to six months R.I. In Suleman and others v. The State (1991 PCr.LJ 1341) the Court held that serious prejudice had been caused to the accused and the irregularity could not be cured. It did not order re-trial as he had undergone major part of sentence and suf fered rigour of trial for a considerable time.
24. In another set of cases, which inter alia include Mian Muhammad and 5 others v. The State (1990 PCr.LJ 1331) , Panjo v. The State (1991 PCr.LJ 247), and Muhammad Razzaq v. The State (1996 PCr.LJ 616), the Courts held that non-examination of the Investigating Officer by the trial court had seriously prejudiced the accused as he was deprived of his right of cross-examination and confronting him with material contradictions and inconsistencies in the statements of the PWs. They further held that the irregularity was not curable, quashed the conviction and sentence and acquitted the accused. In Muhammad Riaz v. The State (2008 MLD 1568 ), it was ruled that the Investigating Officer was not a formal witness as several aspects of the case which prosecution witnesses try to conceal from the Court could be brought out from his statement. Omission to examine him puts the accused to serious handicap in defending himself. In Muhammad Javed v. The State (2019 SCMR 1920 ), the Hon'ble Supreme Court considered it as one of the grounds for acquittal.
25. In contrast, two judgments of the Supreme Appellate Court, Ijaz Mehmood alias Nanna v. The State (1992 SCMR 305) and Abdul Majeed v. The State (1992 SCMR 329), which were delivered in appeals from the cases decided by the Court of Special Judge for Speedy Trials took the view that there was overwhelming evidence against the accused so omission to examine the Investigating Officer did not prejudice him. In Muhammad Mansha v. The State (1992 SCMR 273) it was also held that the prosecution case would not be adversely affected if the Investigating Officer was not examined. In Abdul Sattar v. The State through Advocate-General N.W.F.P.
(2008 SCMR 684) the Hon'ble Supreme Court ruled that "the importance of evidence of Investigating Officer depends upon the fact of each case and it is not necessary that non-production of Investigating Officer as witness is always fatal to prosecution. In the present case, prosecution mainly placed reliance upon the official documents and examination of the documentary evidence would show that the non-appearance of Investigating Officer in Court has caused no prejudice to the appellant as he was given full opportunity to cross-examine relevant witnesses of the concerned department but he has not been able either to question the credibility of the documentary evidence, or discredit the oral evidence produced by the prosecution."
26. The Supreme Court of India has also considered the above-mentioned issue in a host of cases. The following excerpt from Lahu Kamlakar Patil and another v. State of Maharashtra [(2013) 6 SCC 417] summarizes the legal position in India: "It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317], this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially , when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153], it has been opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused."
27. The statement of law that emerges from the above discussion is that the Investigating Officer is an important witness. The effect of not examining him differs from case to case and it is not fatal for the prosecution unless it has caused prejudice to the accused. Where there aren't any serious contradictions or omissions in the prosecution case, his non-examination is of no consequence. If the Court decides to set aside an accused's conviction and sentence, it may order re-trial or acquit the accused as the circumstances may warrant.
28. In the instant case, since the police had thoroughly investigated it before makin g a cancellation report Exh.DB, it was by all means necessary to exam ine the Investigating Officer. The trial Court was, therefore, required to invoke Section 540 Cr.P.C. to summon him as Court Witness and in order to enforce his attendance it could even take coercive measures. The inaction on the Court's part has indeed prejudiced the Appellants.
29. The Appellants had taken a defence in their statements under Section 342 Cr.P.C. that they had taken land on lease from Mudassar which they had cultivated along with Saifullah and Muhammad Ashraf. Cattle of Saifullah were stolen and FIR was registered against Complainant's real brother Irshad alias Shaddi and Falak Sher.
According to them, their real brother was a witness in that case which angered the Complainant and she involved them in this false case. However , they did not lead any evidence to establish their plea. Nevertheless, since I have held that the prosecution has failed to prove the charge, this has no legal consequence.
30. In view of the foregoing, Crl. Appea l Nos. 81/2012/BWP and 85/2012/BWP are accepted . The impugned judgment dated 21.2.2012 is set aside and the Appellants are acquitted of the charge. Their sentence was suspended by this Court vide consolidated order dated 23.5.2012 passed in Crl. Misc.Nos.1 107/2012 & 1/2012 and they were released on bail. Their sureties are discharged.