Muhammad Ali (appellant) was tried by the learned Addl. Sessions Judge, Hafizabad in case FIR No. 387 dated 22.5.2015 offence under Section 496-A, P.P.C. (Sections 365-B and 376(i), P.P.C. were added later on) registered at Police Station City Hafizabad District Hafizabad for the abduction of Mst. Sajida Perveen sister of complainant and committing rape with her vide judgment dated 10.03.2016 passed by the learned trial Court, the appellant has been convicted under Section 365-B, P.P.C. and sentenced to rigorous imprisonment for ten years, with fine of Rs.
50,000/- (rupees fifty, thousand only) and in default whereof to further undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C. was extended to the appellant. However , he was acquitted of the charge under Section 376(i), P .P.C. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story , as set out in the FIR (Ex.PJ) registered on the written application (Ex.PB) of Mst. Sughran Bibi (PW.3) is that she was resident of Karachi. She had visited Hafizabad along with her family members. On 10.04.2015, her son Sajjad Ali along with Sajida Perveen sister of complainant went to Hafizabad Station, who had to leave for Karachi. At about 11.00 a.m. after boarding of Sajjad Ali on train, Sajida Perveen came to wagon Adda Vanike but till 11.30 a.m. she neither returned home nor reached the house of any of her relatives. The appellant was implicated in this case through supplementary statement of the complainant.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Hafizabad to face the trial. Copies of relevant documents were provided to the appellant, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 365-B and 376(i), P.P.C. was framed against him on 30.09.2015, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 07.03.2016, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However , after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal.
4. Learned counsel. for the appellant in support of this appeal contends that the appellant has falsely been implicated in this case; that there is a delay of about forty one days in reporting the matter to the police without there being any satisfactory explanation; that the appellant is not nominated in the FIR; that there are material contradictions in the statements of Sugh ran Bibi complainant (PW.3) and Sajida Parveen (PW.4); that charge of rape has not been proved against the appellant; that both the above said PWs while appealing before the learned trial Court, in order to strengthen the prosecution, made dishonest improvements, they were confronted with their previous statements and the improvements were brought on the record; that motive has not been proved against the appellant; that viewing from all angles, prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Law Officers have vehemently opposed this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that presence of both the witnesses of ocular account on the spot at the time of incident is quite natural and probable; that ocular account is fully supported by medical evidence; that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
6. Hearkened. Record perused.
7. The occurrence in this case allegedly took place on 10.04.2015 whereas the matter was reported to the police on 22.05.2015. The distance between police station and the place of occurrence is 11/2 Kilometers. There is a delay of about forty one days in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Muhammad Mst. Sughran Bibi complainant (PW.3) and Mst. Sajida Parveen (PW.4) did not utter even a single word about the above said delay . Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State " (2019 SCMR 274 ).
8. Ocular account in this case consists of Mst. Sughran Bibi, complainant (PW.3) and Mst. Sajida Parveen (PW.4).
It was the case of prosecution that Muhammad Ali (appellant) abducted Mst. Sajida Parveen (PW.4) on 10.04.2015 and thereafter committed rape with her but the learned trial Court has observed in Paragraph No. 18 of the impugned judgment that charge of rape has not been proved against the appellant by holding as under: "18. The second allegation on the accused was that he raped Sajida Parveen. In this respect, there is solitary statement of the victim on the record. In the medial evidence, there were no marks of violence on her body nor was the report of Forensic Science Agency on the record. The doctor has also opined that there was no evidence of seminal staining. As there was no evidence of Forensic DNA examination the evidence of the victim was not corroborated. Although solitary statement of the abductee is sufficient for conviction but when corroboration in the shape of medical reports is not available it would be unsafe to convict the accused under Section 376 (i), P .P.C."
As apprised by learned Law Officer, neither the complainant nor the State has challenged the above said findings of the learned trial Court meaning thereby the same are in field. The appellant was merely convicted in this case in offence under Section 365-B, P.P.C. but no solid/convincing evidence qua the above said charge was produced by the prosecution during the trial. The appellant is not nominated in the FIR. Munir Ahmad (PW.5) has stated in his examination-in-chief that the appellant was implicated in this case through supplementary statement of the complainant but Sughran Bibi, complainant (PW.3) has stated in her examination -in-chief that Munir I.O. told her that someone from Karachi named Muhammad Ali had abducted her. There is nothing on record as to on which date the complainant recorded her supp lementary statement nominating the appellant in this case. Complainant (PW.3) has stated in her cross-examinat ion that 'I had not recorded any supplementary statement before police nominating Muhammad Ali and Shoukat infact they told us their names from which we came to know about the accused ". Moreover , Sajida Parveen (PW.4) has stated in her cross-examination that 'I do not know Muhammad Ali accused present in the Court'. Moreover , Sajida Parveen (PW.4), while appearing before the learned trial, in order to strengthen the prosecution case made dishonest improvements, she was confron ted with her previous statement recorded under Section 164, Cr.P.C. and the improvements were brought on record. Therefore, I hold that the evidence of above two witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
9. As far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same.
10. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to Muhammad Ali (appellant) vide judgment dated 10.03.2016 passed by the learned Addl Sessions Judge, Hafizabad are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail, he shall be released forthwith if not required to be detained in any other case.