Through this criminal appeal, Khuda Bakhsh appellant has challenged his conviction and sentence. He was tried by learned Additional Sessions Judge, Chiniot in case FIR No. 58 dated 07.03.20 17 registered at Police Station Muhammad Wala District Chiniot. On conclusion of trial, appellant was convicted vide judgment dated 23.11.2019 and sentenced as under:-- Convicted under Section 376(i), PPC and sentenced to undergo rigorous imprisonm ent for ten years alongwith fine Rs. 50,0001- or in default, to further undergo simple imprisonment for six months.
(ii) Convicted .under Section 337-L(2), PPC and sentenced to pay daman to the tune of Rs. 10,000/- to injured Zubaida Bibi.
Benefit under Section 382-B, Cr .P.C. was extended to the appellant.
2. FIR was registered on the basis of complaint moved by Noor Muhammad (PW-2), who alleged that on the night falling in-between 4th and 5th of March, 2017, he was sleeping in his house alongwith his family members. He woke up at 04:00 a.m. and on hearing hue and cry, he went towards room and saw the appellant committing rape with his wife Zubaida Bibi (PW-3) by removing his shalwar . A 12-bore gun was kept by appellant near him.
Complainant raised hue and cry, whereupon appellant intended to fire on him but complainant hurriedly caught the gun. Thereupon, appellant scuffled with the complainant, started biting his hand and ultimately succeeded to escape. Aman-Ullah Bhatti and Ihsan-Ullah Bhatti (since given up PWs) attracted to the spot hearing noise.
3. On completion of investigation, appella nt was sent up to face trial. He was charg e sheeted by learned trial Court.
He pleaded innocence and claimed for trial. After completing prosecution's evidenc e, statement of appellant under Section 342, Cr.P.C. was recorded. He again pleaded innocence. On conclusion of trial, appellant was convicted and sentenced as mentioned in opening paragraph of this judgment. Hence, this appeal.
4. I have heard learned counsel for the appellant and learned Deputy Prosecutor General at length and perused the record with their able assistance.
5. Occurrence took place in complainant's house at night when all the family members were sleeping there.
Trespass at night by a stranger in a house where a young male is present alongwi th his other family members and commission of rape forcibly with a married lady who is mother of three children, is the factum much hard to believe.
Therefore, I would scrutinize the evidence in order to analyze authenticity of the story put forth in FIR. It has been claimed in the FIR that complainant and his family members were sleeping in his house. However , whether they were sleeping in Courtyard or any room of the house, has not been clarified. It was complainant's version that a gun .12-bore was kept by appellant near him when he was committing rape with his wife. Investigating Officer, however , opined that the gun was owned by complainant and not by the appellant. Admittedly , an FIR for the offence under Section 13 of Arms Ordinance was registered against complainant. Occurrence as alleged in the FIR took place at 04:00 a.m. on the night falling in-between 4th and 5th of March. Pertinent to note here is that alleged victim (PW-3) was medically examined on 06.03.2017 at 12:50 p.m. FIR was registered on 07.03.2017. Prosecution's case is silent as to such inordinate delay in medical examination of the victim as well as reporting the matter to police. Another relevant fact to note here is that alleged victim (PW-3) asserted before Woman Medical Officer that three persons trespassed into her house and one of them committed rape with her. However , in the FIR only one person's name is mentioned whereas remaining two have not been described therein. Also relevant to note here is that this aspect of the case remained un-probed. Swabs obtained by Woman Medical Officer were sent to Punjab Forensic Science Agency (PFSA) for DNA analysis. As per Report of PFSA, DNA profile was mixture of at least two unknown individual. Prosecution's case remained unexplained as to origin of DNA profile of second individual. No investigation was conducted on this aspect also.
6. For the above reasons, I am of the considered opinion that complainant intentionally suppressed actual facts of the case, which have not been brought on record either by prosecution or by defence. Evidence produced by prosecution in this case was not of the standard that it could be made basis for awarding conviction and sentence.
As such, findings of conviction and sentence recorded against appellant in the impugned judgment are not sustainable, which are set aside allowing this criminal appeal. Resultantly , appellant is acquitted of the charge. He is in jail. He be released forthwith if not required in any other case.