ALI ZIA BAJWA, J. Through this single judgment, I intend to decide above titled three criminal appeals. Fida Hussain son of Fateh Muhammad, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Sabir son of Ahmad Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Saifullah son of Rahim Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Latif son of Rahim Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur through Criminal Appeal No.476/2012, Riaz Hussain son of Imam Bakhsh, caste Pauli, resident of Mouza Dhora Rindan, Tehsil Jampur, District. Rajanpur and Riaz son of Khameesa, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur through Criminal Appeal No.578/2012 whereas Abdul Rasheed son of Fateh Muhammad, caste Pauli, resident of Rakh Peeroo Wala, Tehsil Jampur, District Rajanpur through Criminal Appeal No.492/2012, appellants, have challenged their convictions and sentences recorded by learned Additional Sessions Judge, Jampur vide judgment dated 07.07.2012 wherein, while deciding case FIR No.80/2008, dated 26.03.2008, for offence under sections 364-A, 365-B, 376-11, 452, 148, 149, Pakistan Penal Code, 1860 (`P.P.C.'), registered with Police Station Muhammamdpur, appellants were convicted and sentenced as detailed under:- Sr.#Name of the appellantsConviction and sentence 1) Fida Hussain Sabir Rasheed Saifullah Under sections 365-B/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo simple imprisonment for six months.
Lateef Under sections 376(ii)/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo simple imprisonment for six months. Under sections 452/149, P.P.C., sentenced to undergo rigorous imprisonment for five years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo simple imprisonment for one month. Under section 148, P.P.C., sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in case of default in payment thereof, to further undergo S.I. for one month.
2) Riaz son of Imam Bakhsh Riaz son of Khameesa Under sections 365-B/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. Under sections 452/149, P.P.C., sentenced to undergo R.I. for five years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for one month. Under section 148, P.P.C., sentenced to undergo R.I. for two years with fine of Rs.5,000/- and in case of default in payment thereof, to further undergo S.I. for one month.
However, Farid Bakhsh, Hazoor Bakhsh son of Ali Muhammad, Farooq, Faiz Muhammad, Shabbir, Hameed, Irshad son of Fateh Muhammad, Hazoor Bakhsh son of Ahmad Bakhsh, Irshad son of Khameesa, Ghaffar, Shamla, Rab Nawaz, Falak Sher, Balakh Sher and Ahmad Bakhsh, accused were acquitted of the charges.
2. The prosecution story as portrayed in the FIR (Exh.PA) lodged on the statement of Aziz Ahmed son of Malik Muhammad, caste Bhani, resident of Mouza Islampura (PW-1) is that about 11/12 years prior to the registration of FIR, marriage of his daughter Mst. Taj Mai was solemnized with Allah Bakhsh son of Haji Muhammad, caste Bhani and four boys and three daughters were born out of this wedlock. That, on 22.03.2008, the complainant along with his spouse Mst. Korri went to the house of their daughter. That, Muhammad Akram brother of the complainant, Reham Ali and Jamshed Ahmed relatives of the complainant, were also sitting on the cots in the courtyard of the said house, when at 10:00 a.m., all of a sudden, a FIAT tractor-trolley stopped at the gate of the haveli.
The complainant went towards the gate and saw that 24/25 accused persons armed with firearms were alighting from the trolley. Sabir son of Ahmed Bakhsh, Bahawal son of Ahmed Bakhsh, Rasheed son of Fateh Muhammad, Fida Hussain son of Fateh Muhammad, all Pawli by caste and residents of Islampur armed with guns and rifles forcibly entered into the house of complainant's daughter. Sabir son of Ahmed Bakhsh raised lalkara to teach a lesson for abducting Mst. Sajida daughter of Rasheed, caste Pawli by relative of the complainant namely Rafi Ullah son of Liaqat.
Thereafter, Sabir son of Ahmed Bakhsh, Rasheed son of Fateh Muhammad entered into the eastern room, dragged Mst. Taj Mai outside and boarded her in the trolley whereas Fida Hussain son of Fateh Muhammad, Bahawal son of Ahmed Bakhsh took Nadia Bibi alias Guddo Bibi aged about 8/9 years and boarded her too, in the said trolley. That, remaining accused persons namely (1) Sher son of Ahmed Bakhsh, (2) Hazoor Bakhsh son of Ahmed Bakhsh, (3) Hameed son of Fateh Muhammad, (4) Irshad son of Fateh Muhammad, (5) Irshad son of Khameesa, (6) Riaz son of Khameesa, (7) Ghaffar son of Khameesa, (8) Saif Ullah son of Raheem Bakhsh, (9) Lateef son of Raheem Bakhsh, all Pawli by caste and residents of Mouza Islampur, (10) Kaura son of Rab Nawaz,
(11) Fareed Bakhsh son of Rab Nawaz, (12) Rab Nawaz son of Bahadur, (13) Jaseem son of Bahadur,
(14) Falak Sher son of Dar Muhammad, (15) Balakh Sher son of Dar Muhammad, all Pawli by caste and residents of Mouza Kotla, (16) Ahmed Bakhsh son of Eisa, (17) Farooq Ahmed, (18) Faiz Muhammad, (19) Hazoor Bakhsh, (20) Shamla and (21) Riaz son of Imam Bakhsh while armed with firearms, in aid to their co-accused, entered into the haveli and started making firing. Upon hearing hue and cry of complainant side, PWs were attracted to the spot. All the accused persons in connivance with each other, kidnapped Mst. Taj Mai and Mst. Guddo Mai.
3. Motive behind the occurrence as alleged in the crime report was that Rafi Ullah, a relative of complainant side, had abducted Mst. Sajida daughter of Abdul Rasheed of accused side and in order to take revenge of her abduction, accused persons had committed instant occurrence.
Proceedings of Investigating Agency
4. After registration of the case, investigation was entrusted to Nazir Abbas, Inspector (since dead), who got conducted medical examination of the victim. He prepared rough- site plan of the place of occurrence and recorded statements of the prosecution witnesses under section 161, Cr.P.C. Said I.O. also arrested Abdul Rasheed appellant, who during the course of interrogation, led to the recovery of gun .12-bore (P-5) along with one live cartridge (P-6). Thereafter, investigation was entrusted to Abdul Shakoor, ASI (PW-7), who on 11.12.2009 arrested Riaz Ahmed, appellant and who on his disclosure on 17.12.2009, got recovered .12-bore (P-1) along with one live cartridge (P-2).
During the course of investigation having found the appellants guilty, Investigating Officer submitted report under section 173, Cr.P.C. against Fida Hussain, Abdul Rasheed, Fareed Bux, Hazoor Bux and Riaz while placing their names in column No.3. Rest of the accused persons were declared were not found involved in the occurrence, by the investigating agency.
Proceedings Before the Trial Court
5. After submission of report under section 173, Cr.P.C, learned trial court only summoned and formally indicted the accused against whom such report was filed. After recording the statement of complainant, rest of the accused who stood the trial were summoned vide order dated 03.03.2010 and charge was framed against them to which they pleaded not guilty and claimed trial. Prosecution in order to establish its case produced as many as nine (9) prosecution witnesses.
6. Azeez Ahmed (PW-1) is complainant and eye-witness of occurrence while Mst. Taj Mai (`prosecutrix') (PW-2) is one of the victims of the occurrence. Dr. Ammara Haider (PW-4) medically examined the prosecutrix. Nazir Abbas, Inspector/Investigating Officer of the case had died prior recording of his evidence and Parvez Ahmad 378/HC (PW-6) appeared to furnish secondary evidence on his behalf. Abdul Shakoor, ASI (PW-7) is also investigating officer of this case.
7. After completion of the prosecution evidence, statements of the appellants and acquitted co- accused, as provided under section 342, Cr.P.C, were recorded by the learned trial Court, wherein they maintained their innocence. Upon completion of trial, the learned trial court found the prosecution case proved to the hilt, thus, convicted and sentenced the appellants as mentioned and detailed above. However, Farid Bakhsh, Hazoor Bakhsh son of Ali Muhammad, Farooq, Faiz Muhammad, Shabbir, Hameed, Irshad son of Fateh Muhammad, Hazoor Bakhsh son of Ahmad Bakhsh, Irshad son of Khameesa, Ghaffar, Shamla, Rab Nawaz, Falak Sher, Balakh Sher and Ahmad Baldish, accused were acquitted of the charges.
8. Arguments heard, record perused.
9. Prosecution case mainly hinges upon Ocular account, medical evidence, recovery of firearm weapons and motive. I would like to discuss each piece of evidence to determine its probative value and strength.
Ocular Account
10. Ocular account was furnished through the complainant Aziz Muhammad (PW.1) and one of the victims of occurrence Taj Mai (PW.2). According to prosecution story occurrence took place on 22.03.2008 at 10 a.m. but crime was reported to police on 26.03.2008 at 2:05 p.m. with an extraordinary delay of four days for which no plausible explanation could be furnished. Admittedly, the inter-se distance between the place of occurrence and police station is only 08-KM.
Extraordinary delay in reporting the alleged occurrence to police clearly suggests that possibility of deliberation, consultation and concoction cannot be ruled out. It is an axiomatic principle of criminal jurisprudence that when there is delay in reporting the incident to the police then prosecution is under obligation to explain such delay and failure to do that will badly reflect upon the credibility of prosecution version.[1] Respectful reliance can further be placed upon the decision of august Supreme Court in Mst. Asia Bibi case[2], wherein august Supreme Court has considered the delay in reporting the matter to the police, fatal for the prosecution story. Relevant extract is provided below: "29. ...it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be, fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused..."
11. Appellants were nominated in the crime report despite the admitted fact that they were not previously known to the complainant of this case. Complainant stated during his cross- examination that accused were not known to him prior to occurrence. Prosecution could not furnish any explanation as to how complainant got to know the names of accused persons nominated in the crime report. Victim also admitted this fact during her cross-examination that appellants were not previously known to her. This sole fact leads to the inference that complainant got recorded instant FIR after due deliberation and consultation as alleged by the appellants side.
Implication of all the accused persons by name by prosecutrix is also astonishing because it is admitted by her that accused persons were not known to her before the occurrence. Although she tried to cover-up this deficiency by swing that she came to know about the names of accused persons during her confinement where they used to call each other by their names but this fact is negated from her own statement. She specifically mentioned in her statement before trial court that she was kept there by the accused persons Farid, Rasheed, Sabir, Safiullah, Latif and Riaz and they committed rape with her without her consent. She failed to explain as to how she got to know about the names of the remaining accused persons because she did not allege that all other accused persons also used to visit the place of her captivity. One can easily infer that she did not get her statement recorded at her own rather same was recorded upon the dictation of her father i.e. complainant of this case, as he admitted in his statement as PW.1. Prosecution version qua the escape of victim from the confinement of appellants is also highly unbelievable. According to prosecutrix, when she got herself extricated from the clutches of appellants and ran away from the place of her confinement on 10.04.2008, she met her husband at Adda Charagh Shah and he took her to the police station, where she got recorded her statement and was medically examined thereafter. Relevant portion of her statement is provided below: "However, after finding an opportunity, I came out from the clutches of the accused. I came to Adda Charagh Shah, where my husband met me. My husband took me to the police station, where I made my statement to the Police. Thereafter, I was also medically examined."
On the other hand, in her cross-examination, she stated that at the time of recording her statement, her father Aziz Muhammad, Muhammad Akram, Jamshed and Reham Ali were accompanying her and this fact has also created doubt about her story regarding her extrication and recording of her statement before the local police especially when it is specifically asserted by the complainant that both the abductees were produced by him before the police and statements of both the abductees were also recorded on his dictation. He has specifically stated that at that time he was accompanied by one Malik Jamil Bhani.
12. It is pertinent to mention that surprisingly, whole of prosecutions story is silent about the recovery of Mst. Nadia Bibi alias Guddo daughter of Taj Mai. No prosecution witness uttered a single word regarding the date, place, time etc. of release of aforementioned Nadia Bibi. Astonishingly, she was also not produced as witness in the Court despite the fact that she was a star witnesses of prosecution case being one of the abductees of the occurrence. The silence of prosecution story regarding her recovery and her non-production before the learned trial court has raised serious doubts about the prosecution story. On 06.12.2010 learned DDPP for state gave up Nadia alias Guddo being minor. Giving up a witness as unnecessary or won over is prerogative of prosecution.
Prosecution is at liberty to produce as many witnesses as it thinks fit to prove its case against the accused. But giving up a witness because she was minor has no legal justification. A child is fully competent to depose before a court of law subject to his/her capacity and intellect to understand what he/she deposes about. Whether a child is a competent witness or not and whether he/she passes the 'rationality test' is something which is to be decided by the court in accordance with Article 3 read with Article 17 of Qanun-e-Shahadat, 1984 after carrying out voir dire i.e. French term- which means speak the truth. The term Voir Dire as defined in various lexicons has been provided hereunder for further elaboration: According to Black's Law dictionary voir dire connotes: "A preliminary examination to test the competence of a witness or evidence"[3] According to Webster's Unabridged Dictionary: "An oath administered to a proposed witness or juror by which he or she is sworn to speak the truth in an examination to ascertain his or her competence."
According to Advance Law Lexicon A rule requiring that a party must call the best evidence that the nature of case will allow.[4] According to Advance Law Lexicon A special form of oath administered to a witness whose competency to give evidence in the particular matter before the Court is in question, or who is to be examined as to some other collateral matter.[5] Voir dire is an inquiry within a trial to decide relevant ancillary issues which are material for just decision of that trial. Without conducting voir dire taking a plea by the prosecution that Nadia alias Guddo cannot be produced as a witness before the trial court being a minor is something unheard of and legally net justified. It is discretion of the trial court to determine the competence of a child witness through putting different questions to him/her and if she/he passes the 'rationality test', she/he is a competent witness. Without opting such process as envisaged under the law, a sheer illegality was committed and damage shall be suffered by none other but prosecution.
In Raja Khurram Ali Khan,[6] apex Court after referring Articles 3 and 17 of Qanun-e-Shahadat, 1984 empathetically held that: "45. A close reading of the above provisions reveals that the essential conditions for a child, or for that matter any person, to appear and testify as a witness, is that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto. This threshold has been referred to as passing the "rationality test", and the practice that has developed with time in our jurisdiction is for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness."
In the circumstances, she could have been the most natural witness of the occurrence and an adverse inference can legitimately be drawn under Article 129(g) of the Qanun-e-Shahadat, 1984 that had she been produced, she would have not supported the case of the prosecution.[7] According to crime report there were three other prosecution witnesses namely Muhammad Akram, Raham Ali and Jamshade Ahmed, who witnessed the abduction of Taj Mai and her daughter Nadia Bibi alias Guddo, but they were not produced before the trial court, hence prosecution withheld their evidence too.
Best evidence rule is one of the vital rules applicable in criminal cases. This rule has great significance in criminal trials. An accused is considered innocent until proven guilty and his guilt should be proved beyond any reasonable doubt which implies that prosecution is duty bound to produce best available evidence to prove his guilt. If duty is cast upon the court to arrive at the truth, it is also obligatory for the prosecution to come to court with the whole truth by making complete disclosure without withholding any substantial evidence. A failure to adduce the best evidence thus makes the prosecution case susceptible, leading to an adverse inference being drawn against it, as such, failure amounts to suppression of actual facts. In the aforementioned circumstances it is abundantly clear that the prosecution withheld the best available evidence and in view of Article 129(g) of Qanun-e-Shahadat, 1984, adverse inference shall safely be drawn that had these prosecution witnesses been produced before the learned trial court they would not have supported the prosecution case. Reliance can be placed on a plethora of judgments of esteemed apex Court.[8] In Muhammad Rafique[9] in para number 33 it was held by the apex Court that 'It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it.'
It was firmly held in Muhammad Asif[10] as under: "In our considered opinion these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution case so set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct."
When there is better evidence available with the prosecution, then it is bounden duty of prosecution to produce that evidence before the court to prove every limb of its case beyond reasonable doubt. In the aforementioned circumstances this Court has no hesitation to hold that best evidence in this case was withheld which adversely affected the prosecution case and benefit shall go to none other but the appellants.
14. There is another important aspect which should not be left unaddressed. The role of trial court is not of merely of a silent umpire or spectator. What if either of the parties withholds any evidence which should be produced to unveil the true scenario and which, if produced, be unfavourable to the party withholding such evidence. In such a situation a question that arises for deliberation is whether the trial Judge should simply overlook the attempt of a party to conceal real facts from the court or is there a legal duty of his own, independent of the parties, to play an intrusive role in the proceedings to find out the truth and administer justice. The purpose behind the entire mechanism of trial is to arrive at the truth and to discover the veracity of allegations levelled against the accused. Under the scheme of law as provided in the Code of Criminal Procedure, 1898 ('Code'), trial court is not left dependent on the prosecution or defense. In order to enable the trial court to do complete and substantial justice various provisions have been provided.
The salutary provisions of section 540 of the Code were enacted where under any court, by exercising its discretionary authority at any stage of enquiry, trial or other proceeding, can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. In the same manner, section 94 of the Code is of vital significance through which a trial court can summon any document which is necessary to arrive at a just decision of the case. Trial court is fully empowered to summon any witness or document which it thinks is available but not produced by the parties in order to conceal the truth and which is important for dispensation of justice. Rendering a judgment on the basis of inchoate, unconvincing and speculative presentation of facts would not meet the ends of justice. It shall also not be out of place to add a line of caution that summoning of already available evidence but withheld by the parties and crafting new evidence are entirely different. Former is within the domain of trial court but later is obviously prohibited, especially in an adversarial system.
15. Moreover, neither the prosecutrix pointed out her place of confinement nor did investigating officer visit the same. According to Taj Mai she and her daughter were taken to the house of some Sauntra but astonishingly he was not joined into investigation by the investigating officer. Not pointing out the place of occurrence, despite the fact that she extricated herself from appellants and came to police station, creates serious dent in prosecution case and makes it highly doubtful.
In the aforementioned circumstances, prosecution story qua the abduction of Taj Mai and her daughter Nadia alias Guddo and how they became free from the clutches of appellants is shrouded in mystery and could not be proved by the prosecution beyond reasonable doubt.
It is an admitted fact that one Bahawal brother of accused Sabir was murdered on the alleged day of occurrence and son in law of the complainant and husband of the victim Taj Mai was nominated as an accused in that case. Relevant part of statement of complainant is reproduced hereinafter: "We have heard that Bahawal Pauli was murdered on the day of instant occurrence. Allah Baksh is my son in law. On the third day of occurrence, I came to know that murder case was registered. I had heard that my son in law Allah Baksh was one of the accused in that murder case."
Ocular account is full of doubts and contradiction qua the manner and mode of occurrence, hence, cannot be relied upon being result of consultation and deliberation. Considering all the aforementioned facts and circumstances, I am persuaded to hold that ocular account qua the abduction of Taj Mai and her daughter Nadia and alleged rape of Taj Mai is not confidence inspiring and not worthy of reliance and possibility of registration of a false case against the appellants to counter the aforementioned murder case of Bahawal cannot be ruled out.
16. It has also been noted by this Court that Pervaiz Ahmed/HC (PW.6) appeared to depose on behalf of Nazir Abbas Inspector (died prior to recording his statement). Where prosecution wants to produce a witness to depose on behalf of investigating officer who is not alive, death of such I.O. has to be proved with plausible evidence. Application of a prosecutor in that behalf shall not be sufficient to allow the production of a witness to depose on behalf of investigating officer who is not alive.[11] There is nothing available on record that trial court ensured the factum of death of aforementioned investigating officer through issuance of process as no statement of process server is available on the record. No death certificate or statement of any concerned official is available on the record to prove the death of Nazir Abbas investigating officer. In Chainchal Singh[12] it was held by the Privy Council that even the accused is not competent to waive his right and the obligation of the prosecution to prove a fact shall remain on its shoulders.
Medical Evidence
17. The most important and crucial evidence against the appellants and in favor of prosecution, was medical evidence. Medical expert was in a better position to confirm the allegation of Mst. Taj Mai regarding her alleged rape by the appellants. Perusal of the statement of medical expert i.e. Dr. Ammara Haider, WMO (PW.4) delineates that although she observed two abrasions on upper side of left thigh and three fresh abrasions on the upper side of right thigh but she has specifically stated that she neither saw any suspected spots or stains nor any marks of injury or violence on the body and the pubic area. Further, three vaginal swabs were taken by the lady doctor and were sent to Chemical Examiner for forensic examination. After receiving the report of chemical examiner, medical expert had opined that no fresh act of sexual intercourse was done with Mst. Taj Mai. Chemical examiner had not observed any semen (spermatozoa) on the vaginal swabs despite the fact that Mst. Taj Mai had alleged that accused persons committed rape with her regularly for consecutive seventeen days of her confinement. Though learned law officer has tried to justify the absence of semen by contending that as she was medically examined after a considerable span of time as she went to the police station first to get her statement recorded and thereafter got herself medically examined, therefore, seminal material could not be detected from the vaginal swa bs but I am not inclined to accept this argument because it is provided by Modi in his book on medical jurisprudence[13] that Motile Spermatozoa can be found for as long as 100 hours and Non-Motile for as long as 17 days. Relevant excerpt is provided below: "...the presence of spermatozoa does not indicate that intercourse was recent, as motile spermatozoa can be found for as long as 100 hours and non-motile for as long as 17 days."
Further, Modi, on page 929 of 23rd Edition of his book titled, "Modi's Medical Jurisprudence and Toxicology", has stated that: ".........the presence of Spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by Morrison (1972) up to 9 days in the vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period."
Similarly, Parikh in his book on Medical Jurisprudence[14] has stated that sperms remain motile in the vagina for about two to three hours and non-motile forms are detectable for about 24 hours and that the sperms remain motile in the uterine cavity for 3-5 days. Relevant extract is reproduced infra: "Presence of Spermatozoa and other microorganisms: Normally, sperms remain motile in the vagina for about two to three hours and non-motile forms are detectable for about 24 hours.
Motility persists longer at body temperature. The sperms remain motile in the uterine cavity for 3- 5 days. Non-motile forms may be found in the female genital tract for about 3 weeks to 3 months or more after death."
In view of the above, absence of any motile and immotile sperm on vaginal swabs and opinion of medical expert has negated the version of prosecutrix regarding her alleged gang-rape.
Prosecutrix Taj Mai also stated in her testimony that her clothes were fully stained with sperms (spermatozoa) of appellants who allegedly committed rape with her for continuously seventeen days. Astonishingly those clothes of the prosecutrix Taj Mai were neither produced before the investigating officer nor sent for DNA test. Such aspect of the case further adversely hits the veracity of prosecution case and benefit of such doubt shall go in favor of none else but the appellants.
Recovery of Weapons of Offence
18. Regarding recovery of alleged crime weapons, suffice is to say that no crime empty was taken into possession by I.O. from the alleged place of occurrence. It is surprising that not a single crime empty could be recovered from place of occurrence despite the fact that it is alleged by the complainant that accused persons made indiscriminate firing for about half an hour. Alleged recovery of firearms on the pointing out of appellants during the investigation remained legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the occurrence in issue.[15] In these circumstances, recovery of crime weapons is of no avail to the prosecution. Even otherwise, it is settled law that recovery of crime weapon is only a corroborative piece of evidence and same is valueless in. the absence of credible direct evidence. It was held in Naveed Asghar's Case[16] that recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case.
Acquittal of Co-accused
19. In the present case, twenty-two (22) persons were indicted and stood the trial. Seven accused were convicted and rest of fifteen (15) accused were acquitted. It is an established law by now that where same set of witnesses was disbelieved qua number of accused persons implicated in the case, it cannot be made foundation for conviction of rest of the accused persons in absence of strong and independent corroboration, which I am afraid is conspicuously missing in this case.
Reliance can be placed on Altaf Hussain v. State - 2019 SCMR 274 wherein it was pronounced that: "It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration."
20. All above discussed important aspects of this case have escaped the notice of learned trial court despite the fact that learned trial court was burdened with the responsibility to apply its judicial mind and to make threadbare examination of each and every piece of evidence available on the record which, unfortunately, has not been done. Guidance is sought from a recent decision of august Supreme Court of Pakistan in Naveed Asghar's Case (supra), where august Court has restrained to haphazardly appreciate the evidence in order to reach at a desired or popular decision. Relevant extract is provided below: "10. ...No Matter how heinous the crime, the constitutional guarantee of fair trial under Article 10A cannot be taken away from the accused. It is, therefore, duty of the court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow."
21. It is settled law that even in cases of rape or gang-rape, standard of proof will be the same and conviction cannot be based upon mere surmises. Reliance is placed upon the decision of august Supreme Court in Abdul Khaliq's case (supra), wherein it was held by august Supreme Court of Pakistan that there are certain salutary principles of the criminal justice system which should be adhered to by the courts, in letter and spirit and there is no exception to these rules, even in gang rape cases for otherwise, due to departure therefrom, the innocent person may suffer. Court further held that: "17. Anyhow, before proceeding further with the matter, it may be observed with emphasis, that violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which is considered abhorrent in any civilized society; any language falls short of vocabulary to condemn such heinous act and cases of this taxonomy must be strictly construed and dealt with. However, at the same time under criminal jurisprudence for the safe administration of criminal justice, the courts are required to follow certain settled principles, such as the innocence of the accused must be presumed, till he is proved to be guilty; sifting "the grain out of the chaff"; the defence may take a number of pleas and even if all are' shown to be false, yet it is the duty of the prosecution to prove its case to the hilt;..."
Although, in the said case it was also observed by august Supreme Court of Pakistan that in such a class of cases, usually independent ocular evidence is not available, therefore, due weight should be attributed to the statement of the victim buttressed by medical evidence, and strong attending circumstances, shall suffice to warrant the conviction but in the instant case the statement of victim, as discussed above, is not trust worthy and medical evidence has also negated the version of Mst. Taj Mai, thus, present case does not warrant conviction of appellants.
22. Further, it is also an axiomatic principle of law that it is better to acquit a guilty person than to punish an innocent person. In Ayub Masih case[17], august Supreme Court has expounded this principle in following words: "10. ...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"............ 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."
It is an established proposition of criminal justice system that a single circumstance creating reasonable doubt in a prudent mind regarding guilt of an accused is sufficient to extend such benefit to accused person(s) not as a matter of grace and concession but as a matter of right without slightest of hesitation.[18]
23. All the above narrated facts and circumstances, when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has absolutely failed to prove beyond shadow of reasonable doubt that appellants have committed the alleged occurrence and learned trial court was not justified to convict them, therefore, while allowing all three appeals i.e. Criminal Appeal No.476/2012, Criminal Appeal No.492/2012 and Criminal Appeal No.578/2012, convictions and sentences recorded by the learned trial Court against all the appellants are set aside and the appellants are acquitted of the charges while extending them benefit of doubt.
Appeals allowed.
1. The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others - 2021 SCMR 873, Khair Muhammad and another v. The State through P.G. Punjab and another - 2021 SCMR 130 and Mst. Asia Bibi v. The State and others - PLD 2019 Supreme Court 64.
2. PLD 2019 SC 64
3. Black's Law Dictionary Tenth Edition
4. Advance Law Lexicon 4th edition Page 527
5. Advance Law Lexicon 4th edition Page 5069
6. Raja Khurram Khan v. Tayya b Bibi - PLD 2020 SC 146
7. Muhammad Jabran v. The State - 2020 SCMR 1493
8. Muhammad Asif v. The State 2017 SCMR 486, The State and others v. Abdul Khaliq and others - PLD 2011 SC 554, Shahbaz Masih v. The State 2007 SCMR 1631, Riaz Ahmed v. State -- PLJ 2010 SC 877 and Lal Khan v. The State - 2006 SCMR 1846
9. Muhammad Rafique and others v. The State and others - 2010 SCMR 385
10. Muhammad Asif v. The State 2017 SCMR 486
11. Allah Ditta v. The State - PLD 1958 SC 290
12. Chainchal Singh v. Emperor AIR 1946 PC 1
13. Modi's A Textbook of Medical Jurisprudence and Toxicology, 24th Edition, published by LexisNexis at Page-676
14. Parikh's Textbook of Medical Jurisprudence and Toxicology 5th Edn, on pg. 444
15. Muhammad Azhar alias Ajja v. The State - 2016 SCMR 1928
16. Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600)
17. Ayub Masih v. The State (PLD 2002 Supreme Court 1048)
18. The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others - 2021 SCMR 873, Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar and another v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State and others (PLD 2019 SC 64), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Gul Dast Khan v. The State (2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and another v. The State (1992 SCMR 196) and Tariq Pervez v. The State (1995 SCMR 1345).