MUHAMMAD FAHEEM WALI, J. This judgment shall also dispose of the connected Criminal Revision No.144-P of 2020, titled 'Jamraiz Khan v. Haroon and others' as both the matters have arisen from. one and the same judgment dated 24.02.2020, rendered by learned Additional Sessions Judge/Judge Child Protection Court, Mardan, whereby the appellant was convicted under section 376(3) of Pakistan Penal Code, 1860, and sentenced to imprisonment for life with fine of Rs.50,000/- or in default thereof, to undergo six months simple imprisonment. Similarly, he was also convicted under section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, and sentenced to imprisonment of ten years and was held liable to pay fine of Rs.100,00,00/- (one million) or in default thereof, to further suffer six months simple imprisonment. All the sentences were ordered to run concurrently, Benefit under section 382-B, Cr.P.C. was extended to the convict/appellant.
2. Brief facts of the case as narrated in the FIR, registered on the basis of murasila, are that on 22.4.2017 at 18:30 hours, complainant Jamrez Khan (PW-9) in the company of Said Wali Khan (abandoned PW), father of Husna Bibi, aged about 6/7 years, reported the matter to Qamar Zaman ASI (PW-5) at Bala Garhi Hospital, to the effect that his afore-named niece had gone to the house of Amir Jamal, situated at Khitab Abad for reading 'Qaida Alif Bay'; that at about 17:00 hours, he was present in his house along with other inmates of the house, meanwhile, his afore-named niece entered into the house while weeping, having Qaida in one hand and her Shalwar in other hand, on query, she disclosed that Haroon son of unknown their co-villager had taken her from a thoroughfare to the vacant house of Miraj, situated at Akhtar Abad and committed rape with her, upon which he (the complainant) called her father and after consultation they brought the minor to the hospital for treatment and report. Hence, the FIR (ibid).
3. On completion of the investigation, complete challan was submitted against the accused before the trial Court, where at the commencement of trial, the prosecution produced and examined as many as twelve (12) witnesses, whereafter, statement of accused was recorded under section 342, Cr.P.C., wherein he professed innocence and false implication, however, neither he opted to be examined on oath in terms of section 340(2), Cr.P.C., nor produced defence evidence. The learned trial Court after hearing the arguments, vide judgment impugned herein, convicted the appellant and sentenced him, as mentioned above, which has been assailed by the appellant through the instant criminal appeal, while the complainant has filed the connected criminal revision for enhancement of sentence awarded to the appellant.
4. We have heard the learned counsel for the appellant, the learned State counsel assisted by learned counsel for the complainant and with their immense assistance, the record as well as the evidence recorded by learned trial Court was scanned from cover to cover.
5. Before discussing merits of the case, this Court is to see the applicability of section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010. For the sake of convenience, the preamble of the ibid Act is reproduced here-under:- "WHEREAS, it is expedient to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the Khyber Pakhtunkhwa".
"Child at risk" has been defined under section 2(1)(e) of the ibid Act in the following words:-
(e) "child at risk" means a child in need of protection who;
(i) is at risk, including an orphan, child with disabilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty;
(ii) is found begging; or
(iii) is found without having any home or settled place of abode or without any ostensible means of subsistence; or
(iv) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or
(v) lives in a brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or
(vi) is being or is likely to be abused or exploited for immoral or illegal purposes or gain; or
(vii) is beyond the parental control; or
(viii) is imprisoned with the mother or born in jail;
(ix) has lost his parents or one of the parents and has no adequate source of income; or
(x) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence; or
(xi) is left abandoned by his parent or parents as the case may be, which will include a child born out of wedlock and left abandoned by his parent;
(f) ...........
(i)...........
(ii)...........
(iii)...........
(g) ...........
(h)...........
(i) ...........
(j) ...........
(k) ..........
(l) ...........
(m) ..........
(n) ...........
(o) ...........
(p) ...........
(q) ...........
(r) ...........
(s) ...........
(t) ...........
(u) ...........
(v) ...........
(w) ...........
(x) ...........
(y) ...........
(2) ...........
6. Section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 is reproduced herein below:- "53. Sexual abuse. Whoever commits an offence of sexual abuse shall be punished with imprisonment for a term which may extend to fourteen years and shall not be less than seven years and shall also be liable to fine which shall not be less than ten hundred thousand rupees".
A bare perusal of the aforesaid section glorifies that the punishment in this section has been made limited to offences involving "sexual abuse" while the term "sexual abuse" has been defined in section 2(1)(y) of the Act, which is reproduced for convenience:- "sexual abuse" means employing, using, forcing, persuading, inducing, enticing, or coercing any child to engage in, or assisting any other person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or stimulation of such conduct either independently or in conjunction with other acts, with or without his consent".
Similarly, the word "child" has been defined in section 2(1)(d), which for the purpose of this Act, means a natural person who has not attained the age of eighteen years.
7. The brief resume of the aforesaid provisions of law certainly puts the controversy at rest regarding applicability or otherwise of section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, insofar as in unequivocal terms this section of law applies to sexual abuse without any mention of the terms "child" or "child at risk", rather the same encompasses the situation mentioned in the definition of sexual abuse wherein instead of the word "child at risk", the term "child" has been used, meaning thereby, that the notion regarding applicability of section 53 of the ibid Act to be only restricted to those children who come within the definition of "child at risk" is misconceived, though, certain sections of law in the ibid Act especially those enumerated in, but not limited to, Part VI of the Act specifically deal with the children at risk, as defined in section 2(1)
(e) of the Act. In this view of the matter, we hold that section 53 of the Act is applicable to all forms of sexual abuse without any classification between the "child" and "child at risk".
8. Yet we have to re-assess the evidence available on file in order to ascertain as to whether the learned trial Court was justified to convict the appellant and sentenced him as mentioned above.
To begin with, complainant, Jamrez Khan was examined before the trial Court as PW-9. While narrating the story, he stated that on the date of occurrence, he was present in his house, when the victim entered into the house crying, who was having Qaida/Sapara in one hand and Shalwar in other hand, who on query told him that the accused committed rape with her, upon which they went to the house of accused for remorse/"Gilla" where parents of the accused scolded them, whereafter, they went to police station for report but the police refused to register the case, rather directed them for medical examination of the victim. They went to the doctor where the police came where he reported the matter. This witness was cross-examined on material aspects, wherein he stated that he along with mother and grandmother of the victim and some minor children went to the house of accused for remorse/Gila. To the questions regarding time of reaching to the house of accused after commission of the offence, reaching to the police station and thereafter to the hospital, his answers were 10 or 10 to 15 minutes, which on calculation came out to be 45 minutes. These timings and time of occurrence and report, being crucial in nature would play a pivotal role regarding truthfulness or falsehood of the appellant. In the present case, the occurrence allegedly occurred at 16:30 hours, while according to the complainant, he was informed by the victim at about 17:00 hours, while he reported the matter at about 18:30 hours. The total time consumed in reaching to the house of accused by the complainant party and thereafter, to the police station as well as to the hospital, on calculation comes out to be 45 minutes. Now if we take the aforesaid timings according to above deposition of the complainant, the matter should have been reported at about 17:15 hours as according to the complainant, they reached to the house of accused within ten minutes after commission of the occurrence and if we take said timings from 17:00 hours, when the complainant was informed by the victim about the occurrence, then the report should have been made at about 17:45 hours, even then the matter was reported at about 18:30 hours. The version of the complainant is also belied by the medico legal report of the victim for the reason that according to the concerned Medical Officer, she was examined at 6:45 p.m. The complainant further stated that they were three in number when they reached to the police station for the first time and numerous persons accompanied them to the hospital, however, he did not mention the names of those persons. This deposition of the complainant is also belied by the victim and the lady doctor, who examined the victim.
9. Next we re-assess the testimony of the victim, who was examined as PW-11. She narrated the story in the manner that on the eventful day, she was on her way to home from Maddrassa, when accused/appellant was standing in the street, who forcibly took her to the deserted bungalow, removed her shalwar as well as his own trouser and committed rape with her due to which blood came out, whereafter, he decamped from the spot and she came to her home where she narrated the story to her mother and complainant, who brought her to the hospital for checkup, however, she stated in her cross-examination that the occurrence took place after offering Asar Azan. She admitted that near the Maddrassa there is situated a mosque. She stated that the path upon which she was proceeding with the accused is surrounded by different houses. She further stated that she made hue and cries after catching hold by the accused. She was taken to the bungalow within one minute by the accused and she was crying at that particular moment. In the bungalow, the accused spent two minutes with her while performing the illegal act. She further stated that her father and uncle were present with her in the police station wherefrom her mother took her to the doctor in the hospital in Tez Raftar Qingqi, which is belied by the complainant PW-9, who stated in cross-examination that they were three in number. She stated that they stayed in the hospital till Maghrib prayer and thereafter went to their house, whereas the complainant stated to have remained in the hospital for two hours. Keeping in view the above contradictions between the statements of the complainant and the victim, their testimony cannot be believed for sustaining conviction. In addition thereof, PWs Said Wali Khan and Mst. Zar Bibi (parents of the victim) were abandoned by the prosecution being unnecessary. Parents of the victim were the best witnesses to corroborate the depositions of the complainant and the victim, but they were not produced by the prosecution before learned trial Court for reasons best known to it. In this view of the matter, Article 129(g) of the Qanun-e-Shahadat Order, 1984 caters for the situation. The law is settled that when the best possible evidence is withheld then its non-production will react against the prosecution with an adverse inference. In this respect, reliance can well be placed on the case reported as "Lal Khan v. The State" (2006 SCMR 1840).
10. The case was investigated by Fazli Malik Khan S.I., who was examined as PW-12. On reaching to the spot, he prepared site plan Ex. PB at the instance of complainant, took into possession one blood-stained shalwar and one Dupata, upon which semen stains were present, two boxes containing swa bs of the victim sent by the doctor. He took into possession swabs of the accused and sealed the same into parcel. Vide his application, the articles in parcels were sent to the FSL and placed the result of FSL Ex.PK and Ex.PK/1 on file. Vide his application, statements of Javed Akhtar, Khadim Hassan, Sakhi Taj and Sarni ur Rehman were recorded under section 164, Cr.P.C. He recorded statements of PWs as well as of the accused under section 161, Cr.P.C. During cross- examination, he stated that after FIR was handed over to him at 19:20 hours, he straightaway proceeded to the spot accompanied by two constables and one driver where the complainant was summoned on mobile phone, which is contradictory to the statement of complainant, for the reason that as discussed earlier, the complainant during cross-examination stated that they remained in the hospital for two hours. He admitted that nothing was penned down upon the bottles except signature of the doctor. He was unaware about the fact that any mosque was situated near the spot and he also did not record statement of any independent person regarding the occurrence. He stated that clothes of the accused were handed over to him by brother of the accused after four days of the occurrence, which were already washed out. He contradicted the complainant as well as the victim by stating that as per his investigation, the victim was taken to the hospital by her father and uncle and none else accompanied her.
11. Now we would like to discuss the medical evidence, which is always considered as a vital piece of evidence in such like cases. In this respect, lady doctor Gul Rukh was examined as PW-3, who stated that on 22.4.2017 at about 6:18 p.m., the local police produced victim minor Husna Bibi, aged about 6/7 years. She found the victim oriented and stable, however, observed bleeding from vagina and fresh blood on thigh. She found no bruises or laceration on body of the victim. She found the clothes with blood and semen stains and handed over to the local police. During cross- examination, she stated that the victim was accompanied by her mother and none else was present with her. She admitted that there were no marks of violence, however, there were bite marks in her neck area and admitted that this fact was not mentioned in her report. She stated that neither the victim nor her mother stated anything about the occurrence. She stated that the victim and her mother left her office at about 6:45 p.m. She stated that at the time of examination the blood of the victim had not yet coagulated and it was still fresh, however, she was unable to specify the exact time of injury received by the victim. Ex.PK is the FSL report regarding blood- stained blue shalwar and dupatta of the victim and her two suspected swab. The Forensic Expert opined human blood on articles in parcel No.1 i.e. shalwar and dupatta of the victim. Ex. PK/1 is the FSL report according to which semen of human were found, but surprisingly no grouping of the semen/blood on shalwar of the victim with that of the accused was conducted by the Forensic Expert in order to confirm that the semen stains on shalwar of the victim were that of the accused.
Though forensic testing is neither mandatory nor self sustainable to rest conviction and shall always be used as a corroborative piece of evidence which in the present case, along with other lacunae, is unfortunately lacking despite availability of the means and facilities in peculiar facts and circumstances of the case, such omission could not have been taken so lightly to award conviction to the appellant. In this view of the matter, no reliance could be made thereupon for safe dispensation of justice. In this respect reliance is placed upon cases reported as "Atif Zareef and others v. The State" (PLD 2021 Supreme Court 550) and "Ali Haider alias Papu v. Jameel Hussain and others" (PLD 2021 Supreme Court 362).
12. There is no two opinion about the fact that the cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. Reliance is placed on cases reported as 'Muhammad Akram v. State' (2009 SCMR 230), 'Muhammad Zaman v. State' (2014 SCMR 749), 'Hashim Qasim v. The State' (2017 SCMR 986), 'Muhammad Mansha v. State' (2018 SCMR 772) and 'Mst. Asia Bibi v. State' (PLD 2019 SC 64).
13. The cumulative effect of what has been discussed above is that this Court reaches to an inescapable conclusion that the prosecution has miserably failed to bring home guilt against the appellant, therefore, this appeal is allowed, conviction and sentences recorded by learned trial Court are set aside. The appellant is acquitted of the charges levelled against him and he be set free forthwith, if not required in any other case. Since we have set aside the impugned conviction and sentences by allowing appeal of the appellant, therefore, the connected criminal revision for enhancement of sentence stands dismissed for having become infructuous.
14. Above are the reasons of our short order announced on 24.02.2022, which is reproduced herein below:- "For reasons to be recorded later, this appeal is allowed, conviction and sentences recorded by learned Additional Sessions Judge/Judge Child Protection Mardan, vide impugned judgment dated 24.02.2020 in case FIR No. 255 dated 22.4.2017, Under sections 376, P.P.C./53, CPA, Police Station Shahbaz Ghari, Mardan are set aside. The appellant Haroon son of Wajid Ali is acquitted of the charges levelled against him and he be set free forthwith, if not required in any other case".