FAHIM AHMED SIDDIQUI, J. These appeals are filed by the same appellant and they are directed against the impugned judgment dated 22-06-2019 passed by Additional Sessions Judge-IV Khairpur in Sessions Case No. 1061/2012. Through the impugned judgment, the appellant has been convicted and sentenced for life imprisonment and to pay a fine amount of Rs.50,000/- for an offence under section 365-B, P.P.C. and also convicted and sentenced for R.I for 10 years and was directed to pay a fine amount of Rs. 50,000/- for an offence under section 376(i), P.P.C. read with section 343, P.P.C. In case of default to pay the fine amount the appellant/accused was directed to suffer S.I for three months' more. Since both, the aforementioned appeals pertain to the same crime and filed by the same appellant, as such it would be appropriate to dispose of both of these appeals through this single judgment.
2. Brief facts leading to the filing of these appeals are that on 14-06-2012 complainant Muhammad Jurial Solangi lodged FIR stating that his daughter namely Shakeela aged about 15 years studying in Girls High School Hingorja in 9th class. About one month before registration of FIR his daughter went to school but did not return. He searched for his daughter but could not succeed to locate her.
After passing four days, she herself returned to home. At the time of coming back home, the complainant along with Muhbat, Gul Muhammad, and others was present in the house. On inquiry, she disclosed that after school when she was coming back at about 2.15 p.m. and reached near the old mosque, one white colour car came there and stopped in front of her. Four persons alighted from the Car, amongst them one was identified by her as Teacher Faiz Muhammad alias Faiz son of Abdul Hakeem Sahito armed with TT pistol and one unknown accused was also armed with TT pistol. They forcibly dragged her in the Car and under the show of weapons took her to an unknown place and detained her in a room. All accused forcibly committed rape with her for four days.
Thereafter, the victim succeeded to escape when chance favored her from the custody of accused persons. Subsequent to the said incident, the daughter of complainant was produced before this Court (High Court bench at Sukkur) while called to respond a habeas corpus petition where her statement was recorded. Later on complainant appeared at PS and registered the instant case.
3. After the investigation, a charge; sheet was filed against the appellant. Trial Court framed charge against appellant at Exh.2 under the above-referred penal sections, The appellant/accused pleaded not guilty and claimed to be tried. In order to substantiate the charge, the prosecution had examined seven (07) witnesses, thereafter, the prosecution side was declared closed by the learned prosecutor. Trial Court recorded the statement of accused finder section 342, Cr.P.C. at Exh.18 in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in his defense and declined to record his statement on oath in disproof of prosecution allegations. Trial Court after hearing learned counsel for the parties and assessm ent of the evidence, vide judgment dated 22.06.2019, convicted and sentenced the appellant, as stated above, hence this appeal.
4. The necessary parts of the evidence produced before the trial court is available in the record as such the same may not be needed to replicate here. Nevertheless, the important portions of the depositions may be discussed during further exploration an evaluation in the light of arguments advanced.
5. Mr. Sohail Ahmed Khoso, learned counsel for the appellant, assailed the impugned judgment in a diversified manner. While reciting the evidence, he emphasized certain parts of the depositions of different prosecution witnesses. However, he opens his arguments by avowing of mistaken identification and connecting a wrong person with the alleged offence. He submits that the appellant is Mangnejo by cast while complainant and prosecitrix have levelled allegations against a person of the similar name by cast Sahito. According to him, the entire prosecution case is engulfed under the thick clouds of doubt due to such fact. He submits that the FIR was lodged on the directions of this Court, as such the trial Court has swerved unreasonably antagonistic to the appellant. He points out that the FIR was lodged with a delay of one month, and the explanation for such delay is not adequate. He submits that there are a free-will and Nikah of the alleged victim, which were produced by the person claimant to be her husband in a constitution petition. He submits that in the said constitution petition, the alleged victim appears and after exonerating the said claimant, she levelled false allegations against the appellant. He submits that the complainant of the FIR is not the eye-witness of the incident as such his deposition comes under the category of hearsay evidence. During arguments, he draws attention towards the several contradictions in the deposition of prosecution witnesses. He further submits that the complainant is not the eye-witness of the incident. According to him, it is also surprising that the complainant himself admits that his daughter remained missing for four days but during that period, he did not report this fact and he remained mum until the directions were issued by this Court for lodging of FIR. He submits that even the other witness is not the eye-witness and he admits this fact in his deposition. He continues to go on by submitting that it is alleged that the abductee/prosecutrix was returning from the school but she was not in uniform on the day of recovery but at that time she was wearing domestic clothes. He submits that those clothes of the prosecutrix were not sent for chemical analysis to detect whether the same were stained with semen so that a DNA matching may be done. According to him, this also creates some doubts regarding the prosecution's story. He submits that it is alleged that the appellant is a teacher of the prosecutrix but the fact is that the appellant was a teacher in a private school and not in the government school, where she was studying. He points out that after the arrest of the appellant, he was not medically examined to establish his potency and capability to perform sexual intercourse, which is necessary for such type of offences. According to him, the appellant is a teacher by profession and he was employed as a teacher in a reputed school in the area, as such is cannot be involved in such offence. He continues to argue by raising a plea of alibi by submitting that at the time of the alleged offence, the appellant was available at the school where he is teaching. In this respect, he draws attention towards the certificate issued by the Principal of Mazhar Muslim Model Higher Secondary School. He further submits that no recovery was effected from the appellant while it is alleged that at the time of the incident he was armed with a pistol. He submits that the appellant remained in custody but police could not decipher the names of other co-accused against whom similar allegations of ravishment were levelled by the prosecutrix. He also draws attention to the fact that the prosecution has given up one of the important prosecution witnesses, who is the son of the complainant. According to him, in such a situation an adverse presumption can be drawn against the prosecution. According to him, the alleged abductee is shown as 15/16 years of age, which means that she was at that time of marriageable age but surprisingly no marks of violence were found on her body. In support of his contentions, the learned counsel relied upon the cases of Muhammad Siddique v. The State (2019 SCMR 1048), Muhammad Javed v. The State (2019 SCMR 1920), Ejaz ul Haq v. The State and others (2013 YLR 2563), Muhammad Younas v. The State and others (2015 YLR 2369), Rizwan alias Abu Bakar v. The State (2010 PCr.LJ 1296), Soomer and others v. The State (2018 PCr.LJ 629) Inayatullah v. The State (2002 PCr.LJ 34), Waqar Ahmed v.
Shoukat Ali and others (2006 SCMR 1139) and Karamat Ali v. The State (2016 PCr.LJ Note 16).
6. In contrast to the above, Mr. Manzoor Hussain Lark, advocate for the complainant, while supporting the impugned judgment, prefers his submissions at considerable length. He begins his arguments by submitting that there is no mistake in picking the appellant as the main culprit of the offence. According to him, Mangnejo is the sub-cast of Sahito, as such the complainant and prosecutrix rightly mentioned his surname as Sahito. He submits that the free-will referred by defence counsel is a dubious document as it bears the signature of prosecutrix in English while she used to sign in Sindhi as evident from her signature on deposition recorded before the trial Court.
He submits that the plea of the appellant regarding alibi is also doubtful as the certificate issued by the principal of the school is differing in dates. He submits that only production of a certificate with the statement of appellant under section 342 is not sufficient and he has to produce the said principal of the school as defence witness to establish the veracity of such certificate. According to him, there is no enmity of the complainant or prosecutrix to falsely implicate the appellant and in such type of offences, false involvement is hardly possible. He submits that medical evidence is not necessary to connect the accused so also DNA is not the basis of conviction in such type of offences. In support of his contentions, he relies upon the cases of Shakeel and 5 others v. The State (PLD 2010 Supreme Court 47), Khurram Shahzad v. The State (PLD 2012 FSC 1), Haji Ahmed v. The State (1975 SCMR 69). Hamid Khan v. The State (1981 SCMR 448) and Mukhtar Ali v. The State (1984 PCr.LJ 1438).
7. Learned Additional Prosecutor General, while arguing the case, has drawn attention towards the impugned judgment and submits that the learned trial Court has not considered plenty of documents submitted by the defence and brushed aside those documents by observing that the record reveals that the accused has not led any evidence in his defence. He also submits that the appellant is a private teacher in a leading school and a private teacher cannot be hired in the government schools. He submits that everything, in this case, was done after filing of constitution petition. According to him, there is a presumption that the appellant is responsible for the alleged offence but presumption also goes in favour of the appellant.
8. I have heard the argument and scanned the entire material in the light of the valued submissions of either side.
9. It is a case of serious allegations and no doubt, it is a painful case as a student girl is the victim of the alleged offence. However, at the same time, it is painful that not only the family of the victim has caused a delay in reporting the incident and the said incident came under the fold of law on the intervention of this Court during the hearing of a petition filed by a person claiming to be the husband of the victim. Even after the lodgment of FIR, the miseries of the victim and family continues as the investigation was not conducted professionally. Everything was taken by the investigator in a cursory and perfunctorily manner. I am of the view that the investigation in the instant matter is a case study of pathetic affairs of investigation in our criminal justice system, where the investigator has collected evidence in a hit-or-miss style. The investigator did not bother to trace the clues of the alleged incident from the germinating point of the offence to the place where the victim was ravished. Even, the person who has claimed to be the husband of the victim was not questioned by the investigator to portray a proper picture of the alleged offence. If the person, who tiled a C.P. to assert as the husband of the victim, would be grilled under questioning by the investigation officer, some concrete results may also come on the record.
10. Nevertheless, if we analyze the entire case we come to a story that the victim, while she was returning from school, was kidnapped by the accused persons amongst them only the appellant was identified by the victim. She was taken away in a car from a busy road in broad daylight. She was kept at an unknown place for four days where all the kidnappers sexually assaulted her repeatedly. Anyhow, she escaped and came to her parents house while wearing domestic clothes.
Victim family members remained silent for a considerable period of time. The victim first time vocalized the facts before this Court when a person claimed himself as her husband by filing a constitution petition and then the incident was reported to the police. In all these episodes the appellant is the only person, who is nominated by the complainant as one of the authors of the offence and the prosecutrix in her statement also levelled such allegations. It is alleged by the prosecutrix that she identified only the appellant as one of the accused who have taken part in her ravishment. She has used the word 'Ustad' with his name while referring to the appellant in her statement recorded before the trial Court. The complainant also admits that the appellant is a teacher but he also admits that he is not teaching in a government school. Now, a question arises that how the prosecutrix came to know that the appellant was a teacher if he is not teaching her.
The entire case was unfolded when a person namely Manthar Ali has filed a petition of habeas corpus before this Court for production of the prosecutrix for whom he claimed that he had married with her. The complainant and prosecutrix have denied the existence of one Manthar as her husband. Both in their deposition have stated that the said Manthar is also one of the playmates of the appellant in the incident. A similar claim was also made by PW Muhabat Ali (brother of prosecutrix) in his statement. The said Manthar has appeared before this Court and has filed a petition and being petitioner his whereabouts is very much available on the record but the prosecution did not associate him in the instant case as accused and even he was not interrogated by the investigators during the investigation. This aspect of the case requires consideration and when the same is looked into in the backdrop of the defence plea taken by the appellant in his statement under section 342, Cr.P.C. a different story may be presumed by placing the prosecution case in juxtaposition with the defence plea.
11. In his statement recorded under section 342, Cr.P.C., the appellant has defended himself by stating that the prosecutrix has entered into marital bond with one Manthar Ali Chandio on her own free-will and accord. In this respect, the appellant has placed copies of certain documents like affidavit of free-will duly signed and having thumb impression of prosecutrix which was sworn before a Justice of Peace at Gambat, an application filed by the said Manthar Ali Chandio of the nature of habeas corpus, order sheet dated 08-06-2012 and statement of the prosecutrix recorded before this court in the aforementioned application. In the application of habeaous corpus, the claimant as husband of the prosecutrix, levelled allegations that his wife (prosecutrix) was taken away by some unknown persons after beating him while he was kept hostage from 01-05-2012 to 05-05-2012 and subsequently he was released. It is also alleged in the said application that those unknown persons while releasing him have threatened for not to pursue his wife and they informed had that his wife had been handed over to his father. It is worth noting that not only the proper address of Manthar Ali Chandio is available in the application of habeas corpus but a copy of CNIC is also annexed with the said application. In these circumstances, none associating of the said Manthar Ali Chandio in the investigation, itself opens the venue of doubt regarding the prosecution case.
12. It is also noteworthy that the, complainant and alleged prosecutrix have taken a stance before the trial Court that said Manthar Ali is one of the accused who has committed rape with the prosecutrix. Surprisingly, when the police after the investigation have not forwarded the said person as accused, the complainant party did not assert before the trial Court for joining the said Manthar as an accused in the trial. This aspect" of the case also creates doubt regarding the prosecution's story and has given way to the defence theory of false involvement and the narratives of the defence regarding the free-will marriage of Manthar and prosecutrix.
13. It has come to the light during the course of arguments that the complainant party has not tried to falsify the alleged marriage of prosecutrix with Manthar by filing a suit for jactitation of marriage. In the circumstances, although claimed it false by the complainant party but the said registered marriage certificate (Nikhanama) is still intact, which is also sufficient to throw the clouds of doubt upon the prosecution's story regarding the involvement of the appellant in the alleged offence. In these circumstances, it is evident that there is sufficient material available within the record which creates doubt regarding the prosecution case. It is alleged by the complainant party that the appellant is a teacher but it has come on the record that he was not teaching the prosecutrix as admitted by the complainant in his statement that the appellant/convict was not an employee of a government school. Now question arises, how the prosecutrix came to know about the name of the appellant with his profession but the same remains undeciphered during the trial.
14. It is also not out of place to mention several other deficiencies in the prosecution case, which has hindered in bringing the guilt of the appellant at home. After going through the entire deposition recorded before the lower forum, several contradictions were observed. So far as the victim is concerned, there are three different statements of hers on the record. The foremost statement of the victim was recorded before this Court in the habeas corpus petition filed by Manthar Ali. Her second statement was recorded by police during investigation under section 161, Cr.P.C. while the third statement was recorded during the trial when she was also subjected to cross-examination. In her statement before this Court in habeas corpus petition, she has levelled allegation that the accused persons used to say that they would sell her in Punjab but such fact was not mentioned by her in her subsequent statements. It is mentioned by the complainant in FIR as well as in the statement of prosecutrix under section 161, Cr.P.C. that the accused persons were armed with pistols but nothing of the sort was stated before this Court in habeas corpus petition nor the same was uttered by her before the trial Court. It is also noteworthy that, the complainant and investigating officer are not in agreement regarding the date, time, and mode of inspection of the place of incident. Even they are not in agreement regarding the surroundings of the place of the incident from where the victim was allegedly kidnapped. The PW Mohabat, who is the brother of the victim, has stated that his father went to lodge FIR on the next day of the order of this Court passed on 08-06-2012 but the fact is that the FIR was lodged with another additional delay of several days on 14-06-2012.
15. There are several other shortcomings in the prosecution case, which are also required to be elaborated. Allegedly, the victim was taken from the highway in the broad daylight but none from the surroundings was examined or produced before the trial Court as a witness of the incident. It is alleged that the victim was abducted while she was returning from school but the last worn clothes of the victim were not uniform of the school but at that time she was wearing domestic clothes.
Although, the investigator has collected those clothes but the same were not sent to the chemical analyzer for ascertaining traces of human semen, and no reason for the same was given during the trial. The appellant/convict is a young man and a plea of impotency was not taken by him but for such type of offences, he must be medically examined to establish his ability to perform sexual intercourse. It is alleged in the FIR that the accused persons were armed with lethal weapons but no such thing was recovered from the appellant while he remained in police custody for a considerable period. It is alleged that the victim was ravished by the appellant and his teammates at an unknown place but during the investigation, the investigator, despite custody remand of the appellant, could not be able to get lead from the appellant up to that place, which was allegedly used by them for detaining and ravishing of the victim. It is also strange that the investigator could not be able to get information about the other unknown culprits from the appellant.
16. The above deficiencies in the entire prosecution case are sufficient to say that the pearls of doubts are scattered in the entire prosecution case while it is settled law that a single doubt is sufficient to create a serious dent in the prosecution case. The outcome of the entire discussion is that the prosecution could not establish the case against the appellant beyond a reasonable doubt, as such he was acquitted from the charge through a short order dated 19-11-2020 and these are the reasons for the same.