Jamal Shah and Waheed Shah (appellants) along with three others, namely , Raja Saim Akhtar , Khurshid Shah and Tauheed Alam Shah were tried by learned Additional Sessions Judge-I, Khanewal in private complaint titled as "Mst. Saima Bashir v. Jamal Shah & 4 others" under Sections 365-B,376 & 109, PPC, which was arisen out of case FIR No. 50/2010 dated 19.02.2010 registered under Sections 365-B & 109 PPC at Police Station Tulamba, Mianchannu. The learned trial Court vide judgment dated 05.01.2012 while acquitting others proceeded to convict and sentence the appellants in the following terms: (1). Jamal Shah (appellant)
(i). Under Section 365-B, PPC to suffer imprisonment for life. He was also directed to pay Rs. 25,000/- and in default whereof to further undergo SI for one year .
(ii). Under Section 376, PPC to suffer rigorous imprisonment for 25-years as well as to pay fine of Rs. 25,000/-and in default whereof to further undergo one year SI.
Both the sentences of were ordered to run concurrently .
(2) W aheed Shah (appellant)
Under Section 365-B, PPC to suffer imprisonment for life. He was also directed to pay Rs. 25,000/- and in default whereof to further undergo SI for one year .
Benefit of sentence 382-B, Cr .P.C. was also granted to both the appellants.
2. Succinctly stated the case of the prosecution as unfolded by Raja Bashir (father of victim) in FIR (Exh.CW .I/A) is to the effect that he is agriculturist by profession; that on 17.02.2010 at about 10:30 a.m., his daughter Saima Bashir left the house for going to the house of his relative Raja Waris; that when his daughter reached the metalled road, suddenly a Suzuki Car stopped near her, out of which four persons, namely , Jamal Shah, Waheed Shah and two unknown persons emerged on the scene and on gun-point took her away in the said car; that when he left the house for the search of his daughter , it was disclosed by Raja Irtza and Rafaqat Shah PWs that they saw Jamal Shah, Waheed Shah and two unknown persons while taking away his daughter in a Suzuki Car; that the Complainant along with Raja Irtza and Raja Rafaqat Hussain approached the heirs of Khurshid Shah and Tauheed Shah for the return of his daughter , who promised that they would return her provided neither the Complainant would approach the police nor adopt any legal recourse; that on 19.02.2010 the accused returned Mst.Saima Bashir who informed the complainant and Raja Habib ur Rehrnan that the accused took her at unknown place where Jamal Shah had been committing her rape and that the incident was commi tted at the abetment of Khurshid Shah and Tauheed Alam Shah.
3. The matter was initially investigated by Iqbal. Hussain SI (CW.3), during which he got medically examined Mst.
Saima Bashir (victim) after getting due permission from the concerned Illaqa Magistrate. He also got conducted DNA test of accused Raja Saim, Jamal Shah and Allah Yar. During the investigation conducted by Muhammad Afzal ASI (CW.4) Raja Saim Akhtar accused was found guilty to the extent of abdu ction of Saima Bashir , whereas all the remaining accused were found innocent.
4. Being dissatisfied with the mode of investigation, Saima Bashir (PW.1) filed private complaint, upon which trial was held. Prosecution in order to prove its case against the appellants produced three PWs, out of whom Mst.
Saima Bibi (PW.1) is the victim and Raja Irtza Ali (PW.2) saw the accused while taking away the victim in a Suzuki car. Trial Court also examined four CWs, out of them, Dr.Rizwana Tabassum (CW.2) furnished the medical evidence, Iqbal Hussain SI (CW .3) and Muhammad Afzal ASI (CW .4) are the Investigating Of ficers of the case.
5. Lady Doctor Rizwana Tabassum. (CW.2) on 19.02.2010 medically examined Mst. Saima Bashir (victim) and gave the following observations: Particulars of injuries: 19 years old lady presented with history of rape two days back. She was unmarried.
Her L.M.P . was 22.1.2010.
General Physical Examination: She was well oriented in time, place and person. Two bruises measuring 2 x 2 cm present in the middle and front of the left leg. No injury except those bruises.
Local Examination: Vulva and vagina healthy . Hymen not intact. Two fingers could pass into vagina with mold tenderness. Uterus was of small size. A small laceration measuring .5 x.5 was present at the fourchette. No bleeding from the site of injury .
Her blood sample and six vaginal swabs were taken for the DNA test and for detection of semen if any .
6. After the conclusion of prosecution evidence, the learned trial Court also examined the appellants under Section 342, Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all such questions while pleading their innocence and false involvement in the case. Appellants neither made statement under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore- stated, hence the instant appeal.
7. It is contended on behalf of the appellants that the case in hand is arising out of a crime report which was registered with unexplained delay of two days; that in the crime report the allegation of abduction was pointed towards two unknown persons, whereas at latter stage, a private complaint was filed by the victim Saima Bashir in which the allegation of abduction was evelled against unknown persons; that the victim Saima Bashir levelled allegation of rape against Jamal Shah appellant, Raja Saim Akhtar and Allah Yar but latter two were acquitted, whereas the appellants were awarded conviction; that due to acquittal of Raja Saim deposition of Saima Bashir cannot be used for upholding the conviction of the appellants unless strongly corroborated and supported from other independent circumstances; that the prosecution case is based upon the conflicting versions, thus is to be discarded; that the evidence of important witnesses was withheld by the prosecutio n during trial and that too for no good reason; that no report of chemical examiner was tendered during trial, whereas DNA report brought on record during investigation was inconsequential in nature and that in the foregoing circumstances the conviction awarded to the appellants is liable to be set-aside.
8. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that though there is some delay in the registration of FIR, however , the same has no consequence keeping in view the reluctance of the family for reporting such matter due to fear of being humiliated in the vicinity; that the victim of the case specifically held the appellants responsible for the commission of crime and more importantly Jamal Shah (appellant) was burdened with the allegation of committing rape; that the allegation of rape is well supported from the medical evidence furnished during trial; that the guilt of the appellants was established from the deposition of independent witnesses having no enmity with them and that since the prosecution successfully proved its case, hence the conviction awarded to the appellants needs no interference.
9. Arguments heard. Record perused.
10. From the perusal of the record, it unveils that the incident which lies at the root of the case occurred on '17.02.2010 at about 10:30 a.m. within the territorial jurisdiction of Police Station Talamba, District Khanewal.
During this Incident Saima Bashir was statedly abducted by the appellants and two unknown persons while she was on her way to the house of a relativ e. The law was set into motion through written application (Exh.CW .3/A) moved by the father of the victim Raja Riaz (given up as unnecessary) on 19.02.20 10 at about 4:00 p.m. In the FIR (Exh.CW .1/A), Khursheed and Tauheed Ahmad were arrayed as accused with the allegation of having abetted the crime in question. During, investigation one Raja Saim Akhtar was also implicated in the case with the blame of having committed the rape of victim Saima Bibi (PW.1). During investigation declaration of innocence was pronounced by the police against all the accused except Raja Saima Akhtar (since acquitted) which prompted Saima Bibi (PW.1) to file private complaint (Exh.P A) on 12.04.2010. The private complaint was filed against Jamal Shah (appellant), Waheed (appellant), Raja Saim Akhtar (acquitted), Khursheed Shah (acquitted) and two unknown persons.
11. During trial, the tale of incident was brought on record mainly through victim Saima Bibi (PW.1) and Raja Irtza (PW.2). The victim Saima Bibi (PW1) while appearing in the dock levelled the accusation of abduction against Jamal Shah and Waheed Shah (appellan ts), So far as, the accusation of rape is concerned, it was pointed towards Jamal Shah (appellant), Raja Saim (acquitted) and Allah Yar (not tried). It is important to mention here that Raja Saim was the only person found guilty during investigation, whereas all other accused were found innocent and their names were placed in Column No. 2 of report under Section 173, Cr.P.C. So much so, appellants were not even arrested during investigation by the police. As regards, Allah Yar despite being burdened with the allegation of having committed rape of Saima Bibi, he was not even arrayed as accused either in the FIR or in the private complaint. With this anomaly , Saima Bibi was specifically confronted during trial but no explanation worth mentioning was narrated by her .
There is no cavil to the proposition that the allegation of rape is always placed at the ebb of immorality but even then the fate of such cases is to be decid ed by the Courts in accordance with the settled principles laid down for the appraisal of evidence without having resort to with oversentimental approach. This is well embedded principle of appraising evidence that if a witness is disbelieved to the extent of an accused, then his deposition cannot be used for awarding conviction to a similarly placed culprit unless strongly corroborated and supported by some circumstances of unimpeachable nature. In this regard reference is being made to the case reported as Muhammad Asif v. The State (2017 SCMR 486), wherein the Hon'ble Supreme Court of Pakistan has observed as under: "Once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature."
In the above backdrop, the record of the case is meticulously scanned from which it emerges that the FIR was registered on the complaint of one Raja Bashir who was none other the father of the victim. Likewise, in the FIR Raja Rafaqat and Raja Habib were cited as witnesses of the crime and out of them former was brother-in- law/Behnoi of the victim but none out of three persons appeared as witness during trial. The withholding of afore- mentioned three witnesses without assigning any reason gives rise to an inference which is in consonance with Article 129 illustration (g) of Qanun-e-Shahadat Order 1984, which reads as under:
129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
Instead of blindfoldly following the inference arising out of the above-mentioned provision of law, the record of the case is perused with utmost circumspection to find out the actual reason. It is noticed that in the crime report (Exh.CW .1/A) it is mentioned that after being released from the captivity of the abductors, Saima Bashir (PW.1) claimed to have been subjected to rape only by Jamal Shah (appellant). However , subsequently the prosecution improved its case during trial by pointing allegation of rape towards Jamal Shah and all other accused. The evidence of witnesses nominated in the crime report was intentionally withheld with sinister design of making improvement in the prosecution case. Before dilating upon the deposition of Saima Bibi (PW.1), it is considered essential to mention here that the conviction in the charge of rape can be awarded on the sole testimony of victim provided it inspires confidence and is free from all legal lacunas. In the instant case, it is noticed that even after having saddled Raja Saim with the allegation of committing rape the Complainant even bothered not to file an appeal against his acquittal. The most damaging aspect discemable from the prosecution evidence is the levelling of allegation of rape against Allah Yar, who was not even arrayed as accused either in the FIR or in the private complaint. Before dilating any further upon this aspect of the case, a pressing need is felt to reproduce an excerpt from the cross-examination of Saima Bashir (PW.1) hereunder: "During investigation Allah Yar was also roped by me in the case whose DNA was also conducted. I don't know why I had not implicated said Allah Yar in my complaint case."
Even during arguments, the afore-mentioned anomaly remained unaddressed and no answer about it was found from the scrutiny of record. It is further noticed that in the private complaint (Exh. PA), the allegation of abduction was pointed towards two unknown persons only, whereas during trial the appellants were also held responsible for it. Admittedly , the detail of occurrence furnished by Saima Bibi (PW.1) during trial was in conflict with the contents of the FIR. The difference in two versions gains more importance when seen in the context that Saima Bashir admitted in unequivocal terms that application (Exh.CW .3/A) was presented by Raja Bashir (father of the victim) in the police station and she was accompanying him and other witnesses. For clarity of proposition, relevant extract of her cross-examination is reproduced hereunder: "When the application for registration of case was moved by my father to local police I was along with him. The said application was drafted in my presence."
In such circumstances the version brought on record during trial should have been reported to the police through application (Exh.CW .3/A).
As regards the deposition of Raja Irtiza (PW.2), he deposed that Saima Bashir was abducted by four persons including the appellants. Needless to mention here that stance of Raja Irtza is in conflict with the version of Saima Bashir (PW.1) embodied in the private complaint (Exh.P A). wherein it is mentioned that only two persons participated in the abduction incident. In such an eventuality , the case of the prosecution as far as it relates to the abduction of Saima Bibi is essentially required to be discarded out of consideration.
12. It also spells out from the meticulous review of record that according to report of DNA (Exh.CW .2/B) issued by Centre of Excellence in Molecular Biolog y since vaginal swabs of victim Saima Bashir did not generate any male DNA profile, hence no comparison could be made. Therefore, DNA report is also of no help to the case of the prosecution.
13. The discrepancies, omissions and conflicts, mentioned above, are giving rise to a doubt which derives a prudent legal mind to lean against the version advanced by the prosecution. Even otherwise, it is well settled that the benefit of every reasonable doubt is to be extended to an accused which can best be provided through the judgment of acquittal. As per saying of the Holy Prophet (P.B.U.H.), the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v . The State (PLD 2002 SC 1048 ), wherein, it was observed as under: ".... It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
In supra mentioned case of Ayub Masih , the Hon'ble Supreme Court was also pleased to observe as under: "... The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"...."
14. In the light of what has been discussed above, while allowing Criminal Appeal No. 63 of 2012, this Court extends benefit of doubt to Jamal Shah and Waheed Shah (appellants), set aside their conviction and sentence and in consequence thereof acquit them of the charge. They are on bail and as such their sureties stand discharged from the bail bonds.