KHADIM HUSSAIN TUNIO, J.----Appellants namely Saleem Bhelar , Fardoo @ Farhat Ali Bhelar and Shah Muhammad Bhelar have preferred above captioned Criminal Appeals along with Constitutional Petition No.D-1599 of 2018, filed by the complainant/petitio ner for enhancement of the sentence s, against the judgment dated 31.08.2018, passed by the learned Judge Anti-T errorism Court Khairpur in Special Cases No.81/2014, for offences punishable under section 376/2, 506/2, P.P.C. read with Section 6/7 A.T.A. 1997 in Crime No.78/2014 registered at Police Station Ranipur , Khairpur Mirs, whereby the appellants have been convicted and sentenced as under: i) Appellants namely Saleern 13helar and Fardoo @ Farhat Ali Bhelar have been convicted under section 376/2, P.P.C. read with 149, P.P.C. and were sentenced to suffer R.I for life imprisonment, and to pay compensation of Rs.100,000/- each as contemplated under section 544-A, Cr.P.C, in case of default to pay compensation, they shall further suffer R.I for four months. They are further convicted for the offence punishable under Section 7 ATA, 1997 and sentenced to suffer R.I for life impris onment each and to pay fine of Rs.100, 000/- each, in case of default in payment of fine, they shall further suf fer R.I for four months each. ii) Appellant Shah Muhammad was also convicted for offence punishable under section 506/2, P.P.C. and 'sentenced to suffer RI for seven years and to pay fine of Rs.30,000/-, in case of default in payment of fine, he shall suffer further RI for two months. He was also convicted for offence under section 7 ATA, 1997 and sentenced to suffer RI fur seven years and to pay fine of Rs.30,000/-, in case of default in payment of fine, he shall further suffer R.I for two months. All the appellants were also extended benefit of Section 382-B, Cr .P.C.
2. Precisely the facts as unfolded in the FIR are that on 7.7.2014 at 1830 hours , complainant Raziqdino Bhelar lodged the FIR at PS Ranipur stating therein that on 1.7.2014 he along with his sons while coming back from Ranipur to their house, when they reached at about 9.00 pm near Government Hospital of village Bhelar , they heard cries of lady from hospital, they went towards hospital and saw on electric bulb light and identified the assailants to be Fardoo Bhelar; Saleem, Shahid, Rashid; along with two unidentified assailants who removed their shalwars, tied Mst. Abida with rope (niece of complainant), her shalwar was also removed and Fardoo Bhelar was committing rape with her. On seeing them, all the accused fled away from room of the hospital while leaving Mst.
Abida. Complainant party raised cries which attracted the neighbours to whom they disclosed the facts of the case, thereafter clothes were worn to Mst. Abida and on inquiry she disclosed that all accused forcibly tied her arms with window and after removing her clothes committed rape with her one by one. Then complainant brought the victim to his house and later on approached to the Nekmards of the locality where She relatives of the accused agreed that they will give fesla but they refused later on, therefore complainant along with his son Nigah Ali proceeded towards Ranipur and when they reached their street, Shah Muhammad along with two other persons on the show of deadly weapons controlled upon them and issued threats of dire consequences in case they make any complaint or demand any fesla then they will be murdered. Thereafter complainant appeared at P .S and lodged the FIR.
3. After registration of the FIR and conducting the investigation in the case, the Investigating Officer submitted challan against the accused. After compliance of section 265-C, Cr.P.C, a formal charge was framed to which appellants pleaded not guilty and pleaded their innocence.
4. In order to substantiate the charge, prosecution examined complainant namely Raziqdino, PW Nigah Ali, Dr. Aziza Bano Memon, Jalal Ali Bhelar , ASI Muhammad Hassan Kalhoro, Dr. Hola Ram, Abdul Rahman Dental Surgeon, HC Hoondal Khan Solangi and DSP Altaf Hussain Burdi and they have produced numerous documents through their evidence and thereafter prosecution side was closed.
5. Statements of accused under section 342, Cr.P.C., were recorded in which they denied the allegations leveled against them and claimed that they have been falsely implicated in the case by the complainant due to enmity over landed property . However , neither they examined themselves on oath nor adduce any evidence in their defence.
6. After hearing learned counsel for the respective parties, learned trial Court convicted and sentenced the appellants as supra.
7. Learned counsel for the appellants have argued that the impugned judgment passed by the trial court is against the administration of criminal justice, perverse and shocking; that there are material contradictions in the evidence of PWs which have not been considered; that no independent witness has been cited by the prosecution; that PWs are related and interested witnesses; that the victim lady has not been examined by the prosecution as she was given up; that there was delay of six days in lodgment of the FIR; that the lady was even not produced before police or court to identify the assailants; that the clothes of lady so recovered were not sent to chemical examiner; that the complainant and PWs are chance witnesses; that no any independent person has been cited as witness in this case though several people gathered at the place of incident, even Chowkidar has not been cited as witness in the case; that the statements of PWs under section 161, Cr.P.C. were recorded with delay of six days; that there is no any evidence regarding gang rape and no any repetition of threats has been established; that the case of prosecution is full of material contradictions, discrepancies, infirmities, therefore, they prayed that the impugned judgments may be set aside and appellants/accused may be acquitted. They referred case law reported as 2016 SCMR 1554 , PLD 2011 SC 554, 1993 SCMR 550, 2017 PCr.LJ 244, PLD 1995 Lahore 229, 2010 PCr.LJ 1156 and 1995 SCMR 1345 .
8. Conversely learned DPG for the State has supported the impugned judgments. He has placed his reliance on case law reported in 2020 SCMR 590. However , learned counsel for the complainant has submitted that the delay in lodgment of the FIR has been explained; that no enmity has been established by the appellants on record and the medical evidence supports the ocular version.
9. We have heard learned counsel for appellants, learned DPG for State and learned counsel for complainant.
Perused the record carefully with their assistance.
10. The perusal of record has revealed several important aspects needing clarific ation in the present case. It is a matter of record that the incident was a night time incident on the night of 01.07.2014 at 09:00 p.m. Per the complainant party's own depositions, they were passing by the area when they heard the cries of the victim and when they reached near, they had witnessed the incident. Therefore, undoubtedly , this makes them witnesses by "chance". With regard to chance witnesses in cases involving capital punishment, the Hon'ble apex Court has been pleased to observe in the case of Mst. Anwar Begum v . Akhtar Hussain alias Kaka (2017 SCMR 1710 ) that:- "It is well settled by now that in order to maintain conviction of a convict on capital charge on the basis of testimony of chance witnesses the court has to be at guard and corroboration is to be sought for relying upon such evidence."
11. From the above, it is crystal clear that the testimonies of chance witnesses, in order for them to be considered, need independent corroboration and support and need to also find support by the medical evidence. However , such was again not the case as in the present one. The complainant party stated that they were returning from work and were on their way home when they heard screams of a woman coming from the hospital and upon further investigation, they found the victim allegedly being raped by the appellants. Their testimonies are merely word of mouth and have no independent corrobor ation, as even the medical evidence is not in line with the ocular account provided. It is a matter of record that the victim was not produced in court to testify against her assailants nor was she produced before the police to identify c her assailants there. Per depositions of P.W-1, he stated in his cross- examination that "The victim is fit." and again on a later stated he testified that "Victim is sound mind, however , she cannot "talk frequently ." P.W-3, Dr. Aziz Banu, in her examinations in chief had deposed that "The victim was talking at the time of her examination." Such depositions suggest that the victim was very much capable of talking for herself as she had even disclosed her name by herself before the lady doctor , so admitted by her in her deposition.
The complainant also deposed that she had positively stated on the place of scene that she was collectively being raped by all the appellants and accused. Prosecution witnesses even deposed that she was actively able to identify her parents and relatives. Such a person can be called sane and able to depose against their assailant and the prosecution's excuse that she was unfit to depose does not sit well with this Court.
12. Nevertheless, the victim was produced before the medical examiner after almost 7 days and was wearing fresh clothes. The prosecution has failed to provide a justification for such delay besides the excuse that the decision was placed before the Nek mards of their community for judgment, however the said Nek mud was not even examined before the court. Moreover , even the clothing articles of the victim were given to the police after a delay of 7 days. No marks of semen were found on the clothing, nor were the same saved for the chemical examiner . At the time of the medical examination of the victim, vaginal swab was not taken eithe r whether to ascertain if indeed the crime had been committed in the manner so disclosed by the witnesses. The rope with which the victim was allegedly tied was also not recovered nor is the lightbulb on which the appellants and accused were identified by the complainant party was shown in the site plan. Nor were any marks of violence found on the body of the victim which would have suggested use of force against the victim. To sum up, no medi cal evidence is available in the, present case that would connect the appellants with the commission of rape which the victim allegedly went through.
13. The hon'ble apex Court, in the case reported as Haider Ali and others v . The State (2016 SCMR 1554 ) that:- The alleged victim had failed to receive any support from the medical evidence inasmuch as despite an allegation that three accused persons had committed' rape with her nine times over she had not received any mark of violence on any part of her body . - - - - - All this indicated that the real story could have been totally different from that which was being alleged.
14. Similarly , in the present case, no test identification parade was conducted tither so as to ascertain that the appellants were indeed the ones who had committed rape with the victim. Moreover , as already stated no semen sample was taken from the clothing of the victim nor any DNA tests were conducted to ascertain the claims of the prosecution. Also, there is a delay in the recording of 161, Cr.P.C., stateme nt for which no explanation is furnished. Coupled with the delay in the lodging of FIR, the chance of due deliberation before lodgment of FIR cannot be ruled out which ultimately can justify false implication. In this respect, reliance is placed on the case reported as Saira Bibi v . Muhammad Asif ( 2009 SCMR 946 ), wherein it has been held that:- "As far as medical evidence is concerned, it reveals about sexual intercourse and does not lead to the person who did it especially in the absence of any D.N.A. test or grouping test of semen."
15. In a more recent case and similar case, the hon'ble apex Court, while extending benefit of doubt to the appellant, reported as 201.9 SCMR 1920 (Muhammad Javed v . The State) that:-
5. As already mentioned above, the alleged victim had not made any statement before the trial court for whatever reason. The medical evidence showed no sign of commission of rape and we have found that the above mentioned eye-witnesses produced by the prosecution were quite capable of making any statement to suit their convenience. For all these reasons it could not be concluded by the courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. This appect is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
16. The above aspects have led us to believe that the prosecution has failed to establish its case beyond shadow of doubt and miserably failed to discharge its duty in that regard. Keeping the assertion of the FIR in juxta position of evidence led by the prosecution. Suffice is to say that froth material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony . It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. There are so many circumstances, discussed above are creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to the golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. It is well established principle of criminal administration of justice that no conviction can be awarded to the accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy causing some doubt in the veracity of prosecution story as disclosed by the prosecution casting some doubt over the veracity of prosecution story as disclosed by the prosecution. We are of the humble opinion that prosecution could not establish the guilt of appellants at home without reasonable doubt.
17. For what has been discussed above, the Criminal Appeals No.D-104/2018 and D-97/2018 were allowed and the appellants were acquitted from the charge with direction that they may be released forthwith, if not required in any other custody case, however , C.P. No.D-1599 of 2018 for enhancement of sentence was dismissed vide short order , dated 19-8-2020.
These are the reasons for the same.