Rashid Ahmad, appellant along with co-convict Muhammad Rafique (since released from jail after serving out of his whole sentence) and Sagheer Ahmad (since acquitted) was tried by the learned trial Court in a private complaint under sections 376 (ii), PPC emanated from case FIR No. 69 dated 09-04-2011 in respect of an offence under Section 376 (ii), PPC registered at Police Station Piplan, District Mianwali and at the conclusion of trial vide judgment dated 29.01.2015, the learned trial Court while acquitting co-accused Sagheer Ahmad, convicted and sentenced the appellant Rashid Ahmad as under: Under Section 496-B (2), PPC 05 years R.I. along with fine of Rs. 10,000/-; in default thereof to further undergo 01month S.I. Benefit of Section 382-B, Cr.P.C. was extended to the convict.
2. The appellant has filed the titled appeal against his conviction and sentence, whereas, a criminal revision has been preferred by Mst. Rabia Bibi, complainant/prosecutrix for enhancement of sentence of the appellant. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
3. The facts of the case as spelt out from the private complaint (Ex.PC) are that on 07-04-2011 at about 09:00 p.m., Mst. Rabia Bibi, complainant/prosecutrix (PW.4) was going to attend marriage ceremony of the daughter of Master Sadar-ud-Din along with her father and other female members of her family, whereas, PWs Muhammad Munir and Asad Iqbal were behind them at a short distance, when they reached near the hotel of Tauqir Lohar situated at Doaba Chowk, suddenly, Rashid Ahmad, appellant along with co-convict Muhammad Rafique (since released from jail after serving out of his whole sentence) and co-accused Sagheer Ahmad (since acquitted) emerged there from the eastern side on a white colour car and stopped the car near them. All the three accused were armed with fire-arm weapons and they dragged the complainant into the car on gun point and when her father as well as PWs Muhammad Munir and Asad Iqbal moved forward to rescue the complainant, the accused pointed out their fire-arm weapons towards them and threatened that if someone tried to rescue the complainant, he will be done to death and thus due to fear of life, her father and PWs could not rescue her. The accused brought the complainant on their dera at Doaba where the accused Rashid Ahmad and Muhammad Rafique committed Zina-bil-Jabr with her, turn by turn. Firstly, accused Rashid Ahmad committed rape with her while remaining accused kept watching outside the room and then accused Muhammad Rafique committed rape with her and remaining accused watched outside the room. She begged the accused to spare her but in vain. That, father of the complainant told Tariq Mehmood and Sadar-ud-Din about the occurrence and they reached at the dera of the accused while, searching the complainant, they beseeched the accused and got rescued the complainant. The occurrence was witnessed by father of the complainant, PWs Muhammad Munir, Asad Iqbal, Tariq Mehmood and Sadar-ud-Din.
That on the same day father of the complainant moved a written application to the local police but local police did not proceed against the accused, anyhow local police chalked FIR No. 69 dated 09- 04-2011 under Section 376(ii), PPC impleading her as complainant of that FIR, but to favour the accused, police twisted the facts and did not record the true contention of the complainant.
On 09-04-2011, she was medically examined by the WMO, RHC, Hafiz Wala under custody of the police and at the time of medical examination, complainant told the facts to the WMO, which has been narrated in the report. That on 06-05-2011 the complainant was produced in the Court of learned Magistrate where her statement under Section 164, Cr.P.C. was recorded according to the true facts of the case. That complainant moved different applications for recording her true contention to the higher authorities of the police but of no avail and then she filed an application in the Court of learned Additional District and Sessions Judge, Piplan, which was rejected and then she filed writ petition, in this Court wherein it was directed to file a private complaint. That report of the Chemical Examiner (Exh. PR) and DNA Test (Exh. PS) has been received which are positive and fully supports the contention of the complainant. That police had dishonestly and mala fidely conducted the investigation to favour the accused and did not challan the accused Sagheer Ahmad. Hence, the complainant has filed the private complaint (Ex.PC).
4. It is pertinent to mention here that earlier on the complaint (Ex.DA) of Mst. Rabia Bibi, complainant/prosecutrix (PW.4) FIR No. 69 dated 09-04-2011 under Section 376 (ii), PPC was registered at Police Sarai Piplan regarding the occurrence wherein she (PW.4) stated that on 07- 04-2011, she (PW.4) was present in the house of her relatives in connection with attending marriage ceremony and at about 09:00 p.m. Muhammad Rafique made a phone call to her and asked her that he wants to see her in connection with an important piece of work and as the said Muhammad Rafique was manager of Rashid Ahmad a close relative of the complainant and was in a routine to visit the house of the complainant, so she came out of the house of her relatives and accused Muhammad Rafique came there on a motorcycle and she accompanied him on his motorcycle who took her in the drawing room (Bethak) of Rashid Ahmad and then he made a call to Rashid Ahmed, who also came there in the drawing room (Bethak) and they made an attempt to commit zina-bil-Jabr with the complainant and threatened her that if she raised alarm, she would be done to death and thus due to fear she remained mum and then both the accused committed rape with her one by one. In the meanwhile, factum of absence of the complainant from the house of marriage ceremony came in the knowledge of family members of the complainant and they reached at the house of Rashid Ahmad and on reaching the relatives of the complainant, as well as, their asking about the complainant, the accused get confused and they moved out the complainant from the rear window of the drawing room (Bethak) and accused Rashid Ahmad asked his paternal cousins Malik Munir and Sagheer Ahmad to drop the complainant in the house where marriage ceremony was being celebrated. They managed to cross the wall of the house of their neighbourers and they also allied one of their neighbour, whose name was not known to the complainant but his father's name was Hafiz Muhammad Umar and asked him to drop the complainant at the place of marriage ceremony and then again wall of another house was crossed and she was dropped in the street near the house of marriage ceremony, relatives of the complainant namely Sadar-ud-Din and Haji Tariq Mehmood were present there and complainant told them the whole story. As both the accused have forcibly committed Zina-bil-Jabr with the complainant, so a criminal case was registered against them as well as Sagheer Ahmed.
5. After recording cursory statements of the complainant and PWs the accused were summoned to face trial. Learned trial Court, after observing all the pre-trial codal formalities, framed charge under Section 376 (ii), PPC against the appellant along with his co-accused on 17-12-2011, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 11 PWs and 01 CW. The ocular account of the incident in issue had been provided by Mst.
Rabia Bibi, complainant/prosecutrix (PW.4), Haji Tariq Mehmood (PW.5) and Muhammad Munir (PW.6). Muhammad Ramzan, ASI (PW.3) was the witness of recovery of motorcycle. Abdul Sattar Bosal, learned Magistrate appeared as PW.11, who recorded the statement of the victim under Section 164, Cr.P.C. Abdul Ghafoor, SI (CW.1) being Investigating Officer stated about the various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Humera Qaiser, WMO (PW.7) and Doctor Bilal Ayyub Khan Niazi (PW.9).
The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up Asad Iqbal, Muhammad Ismail, Sadar-ud-Din, Muhammad Bashir 129/C and Muhammad Iqbal 401/C PWs being unnecessary.
6. Thereafter the statements of the appellant and his co-accused under Section 342, Cr.P.C. were recorded wherein they refuted the allegations levelled against them and professed their innocence. While answering to a question, "Why this case against you and why the PWs have deposed against you?, the appellant Rashid Ahmed responded as under: "I am a big landlord of the area and the whole story has been concocted after through consultation and deliberations just to blackmail me.."
The appellant and co-accused neither opted to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against them, nor produced any defence evidence.
7. The learned trial Court vide judgment dated 29-01-2015 found the appellant and co-accused Muhammad Rafiq guilty, convicted and sentenced them, however, acquitted his co-accused namely Sagheer Ahmad of the charge through the same judgment by giving him the benefit of doubt, hence, this appeal.
8. Tripartite arguments heard and record perused.
9. I have observed that after the registration of FIR Mst. Rabia Bibi complainant (PW4) filed a private complaint (Exh. PC) with different facts on 29.07.2011 with the delay of three months and twenty-two days. Prosecution has not given any plausible reasoning qua such delay meaning thereby that the private complaint has been filed after due deliberation and consultation just to fill up the lacunas left in the FIR. I fortify my view from the dictum laid down in case laws titled as Muhammad Mad v.
Ahmad Ali and two other" (PLD 2003 SC 14) and Mst. Shamim and two others vs. The State and another (2003 SCMR 1466).
10. According to the narration of FIR (Exh. CW-1/A) Mst. Rabia Bibi complainant (PW4) went to the drawing room of Rashid Ahmad, appellant with her own accord on the phone call of co-accused Muhammad Rafiq where she was raped by them turn by turn, whereas, while switching over her stance, she (PW4) has stated in his private complaint (Exh. PC) that on 07.04.2011 at 09.00 p.m. she along with other females as well as her father was going to the house of Master Sadar-ud-Din to attend the marriage ceremony of his daughter, whereas, PWs Muhammad Munir and Asad Iqbal were at some distance, when they reached at hotel Tauqeer Lohar situated at Doaba Chowk, suddenly, Rashid Ahmad appellant along with his co-accused Muhammad Rafiq as well as Sagheer Ahmad and one unknown accused came on a white colour car from eastern side who were armed with fire-arm weapons. They abducted complainant and took her at the Dera of Rashid Ahmad, appellant where the appellant and Muhammad Rafiq committed rape with her.
Complainant's father as well as PWs Tariq Mehmood and Sadar-ud-Din beseeched the accused persons whereupon she was rescued. It has been further averred in private complaint that complainant's father moved a written application at Police Station Piplan but no action was taken against the accused persons. Moreover, the police got registered FIR incorporating her as complainant by changing the real facts. I have observed that supra mentioned stance of Mst.
Rabia Bibi complainant (PW4) has been negated before the learned trial Court when she appeared as a witness. She (PW4) has stated in her cross examination as under:- "My original identity card is before me and my signatures on my identity card are in Urdu and I always use my same signatures. Application addressed to the SHO P.S. Piplan dated 08.11.2011 is before me and I identify my signatures on this application. It is correct that date at the foot of the application is mentioned as 08.11.2011. It is correct that I am complainant of the case FIR No. 69/2011 P.S. Piplan and same was recorded on my written application."
It is noteworthy that Mst. Rabia Bibi complainant (PW4) had recorded her statement under Section 164, Cr.P.C. (Exh. PB) on 06.05.2011 and she has also admitted in her cross examination that she had not told the factum of lodging of erroneous FIR against the facts to the learned Area Magistrate at that time. In this way, I am quite confident to hold that evidence of supra mentioned PW is not trustworthy and confidence inspiring.
11. Insofar as the statements of Haji Tariq Mehmood (PW5) and Muhammad Munir (PW6) are concerned, I have noted that their evidence has already been discarded by the learned trial Court in paragraph No. 16 of the impugned judgment through cogent reasons. It has been further held by the learned trial Court in the impugned judgment that factum of abduction has not been proved and disbelieved the prosecution evidence in this respect.
12. I have noticed that learned trial Court although disbelieved the story of prosecution qua abduction and rape with Mst. Rabia Bibi complainant (PW4) but at the same time convicted and sentenced Rashid Ahmad appellant under Section 496-B, PPC. I am of the view that the learned trial Court while convicting the appellant has travelled beyond his jurisdiction because no complaint was ever filed under Section 203-C' Cr P.C. about fornication.
To batter resolve this controversy, this Court deems it appropriate to reproduce provisions of Section 496-B, PPC as well as Section 203-C, Cr.P.C. as infra:- [203-C. Complaint in case of fornication.--(1) No Court shall take cognizance of an offence under Section 496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction.
(2) The Presiding Officer of a Court taking cognizance of an offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication.
(3) The substance of the examination of the complainant and the witnesses shall be reduced to writing and shall be signed by the complainant, and the witnesses, as the case may be, and also by the Presiding Officer of the Court.
(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused.
Provided that the Presiding Officer of a Court shall not require the accused to furnish any security except a personal bond, without sureties, to ensure attendance before the Court in further proceedings.
(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.
(6) Notwithstanding the foregoing provisions or anything contained in any other law for the time being in force no complaint under this section shall be entertained against any person who is accused of Zina under Section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979) and against whom a complaint under Section 203-A of this Code is pending or has been dismissed or who has been acquitted or against any person who is a complainant or a victim in a case of rape, under any circumstances whatsoever.] 496-B. Fornication (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
Although Mst. Rabia Bibi Complainant (PW4) being dissatisfied from the police investigation had filed private complaint (Exh. PC) under Section 376 (ii), PPC against the appellant and his co- accused but, the same cannot be considered as competent under Section 203-C, Cr.P.C. for offence of fornication.
In the light of supra mentioned reproduced provisions of law, I have no hesitation to hold that for convicting a person in the offence of fornication, complaint in terms of Section 203-C, Cr.P.C. is mandatory. Moreover, a male alone cannot be convicted in the offence of fornication and the consenting female could not be believed as a witness against the male. It is noteworthy that in the instant case although the learned trial Court has held in its impugned judgment that Rashid Ahmad, appellant and his co-accused Muhammad Rafiq had committed sexual intercourse with the complainant but from the facts and available record it appears that all has been done with her consent because she herself went to the drawing room (Baithak) of the appellant in the company of Muhammad Rafiq co-accused and afterwards when her relatives noticed her absence from the house of marriage ceremony, they started search of her and reached in the drawing room (Baithak) of the appellant, whereupon, she (PW4) was moved out from the rear window of the drawing room (Baithak) and thereafter was dropped at the house of marriage ceremony, after crossing walls of different houses but she remained cooperative and even she did not raise any alarm when her relatives reached at the place of occurrence which indicates her consent till last moment. It will not be out of place to mention here that learned trial Court despite giving above mentioned verdict has not convicted and sentenced Mst. Rabia Bibi complainant (PW4) in the offence of fornication. In the eventuality of abovementioned circa, I have no hesitation to hold that conviction of Rashid Ahmad appellant under the offence of fornication (496-B, PPC) is not sustainable in the eye of law.
13. Another intriguing aspect of this case which cannot be lost sight of is that statement of Mst.
Rabia Bibi Complainant (PW4) is not synchronized with the medical evidence because Dr. Humera Qaisar WMO (PW-7) has stated in her examination-in-chief as under:- External Examination.
No loose hair was found. No signs of violence was found. On monspubis and labia majora and labia minora.
Internal Examination.
Hymen completely ruptured. Birth canal loose and lax allowing three fingers loose. Uterus empty, OS close. On USG uterus was empty, UPT was negative. For more expert opinion patient was referred to DHQ Hospital, Mianwali to exclude pregnancy. One external and two internal vagina- swa bs taken, dried and sealed in two separate bottles and sent to Chemical Examiner.
Opinion In my opinion act of intercourse has been taken place.
Similarly, after going through the report of Centre of Excellence in Molecular Biology (Exh. PS), it manifests that DNA profile from Sperm fraction of item 2.1 sample form bed sheet, found from-the crime scene matches with the DNA profile of the Rashid Ahmad appellant. It is noteworthy that on external examination of Mst. Rabia Bibi complainant (PW4), Dr. Humera Qaiser (PW7) has not found any mark of violence on the body of the complainant (PW4), similarly ocular account is not supported by forensic evidence because vaginal swabs of Mst. Rabia Bibi complainant (PW4) item No. I.O were not found matched with item No. 4.1, i.e. blood sample of Rashid Ahmed, appellant.
However, matching of semen stains taken from the bed sheet from the place of occurrence which was admittedly was a drawing room of Rashid Ahmad, appellant was matched with blood sample of Rashid Ahmad, appellant is not sufficient proof to hold that the appellant has committed sexual intercourse with the complainant.
14. Insofar as the contention of learned counsel for the complainant that the learned trial Court has not passed any specific order of acquittal of Rashid Ahmad, appellant in the offence under Section 376(ii), PPC but it has been declared that offence committed by accused comes within the ambit of Section 496-B, PPC and not under Section 376(ii), PPC. In this way, it cannot be construed that the appellant was acquitted of the charge under Section 376(ii), PPC.
To meet with the supra mentioned argument of learned counsel for the complainant, I would like to have a glance over the provisions of Lahore High Court Rules and Orders, Lahore Volume No. III Chapter 25-E, Rule 5 which is hereby described below for the purpose of facilitation:- *[5. High Court can alter the conviction from Sections 304 to 302 only when Government appeals.--In this connection it should be noted that ***[...] when a person is tried for an offence under Section 302, Pakistan Penal Code, but is convicted under Section *1318] of *[the said Code] and sentenced to a term of imprisonment, the Sessions Judge's order amounts to acquittal under Section 302. On application to a High Court for revision of sentence, the High Court has no jurisdiction in view of the provisions contained in clause (4) of Section 439 Criminal Procedure Code, to alter the conviction to one under Section 302 and sentence the accused to death. in such cases an appeal by the Provincial Government or by an aggrieved person under Section 417 of the Code is required to give the High Court jurisdiction, if it is desired to alter the conviction.
After going through the above mentioned provision, I am constrained to hold that supra mentioned argument of learned counsel for the complainant has no legal worth because it has clearly been held by the learned trial Court that offence committed by accused do not come within the domain of offence under Section 376W), PPC. I am of the view that supra mentioned observation of learned trial Court amounts to acquittal in the offence under Section 376(ii), PPC.
15. Learned counsel for the complainant has vociferously argued that the complainant (PW4) has challenged the vires of impugned judgment through criminal revision filed under Sections 435/439, Cr.P.C. with the following prayer:- "Under the circumstances, it is respectfully prayed that the revision petition may kindly be accepted and the sentence awarded to Respondents No. 1 and 2 may kindly be enhanced while awarding the same under Section 376 (ii), PPC and sentenced to death."
It is the contention of learned counsel for the complainant that when she (PW4) has challenged the impugned judgment through criminal revision with the prayer of enhancement of sentence while awarding punishment under Section 376(ii), PPC to death then the same can be converted into appeal against acquittal. I am of the view that contention of learned counsel for the complainant is not tenable because specific remedy in the shape of appeal against acquittal under Section 417(2- A), Cr.P.C. was available to the complainant but the same remedy has not been availed.
Moreover, no criminal revision is competent against the GI acquittal of any accused in any offence in the light of Section 439(5), Cr.P.C. To resolve this issue, it is necessary to go through Section 439, Cr.P.C. which is hereby described as under:
439. High Court's powers of revision: (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court, may, in its discretion, exercise any of the powers Conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence and, when the Judges Composing the Court of Revision are equally divided in. opinion, the case shall be disposed of in manner provided by Section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the First Class.
(4) Nothing in this section shall be, deemed to authorize a High Court-- (a) To convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision, with respect to an order made by the Sessions Judge under Section
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled at so to show cause against Ns conviction.
16. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, well established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Reference is made to the cases titled as "Tajamal Hussain Shah v. The State and another" (2022 SCMR 1567) and Kashif Ali alias Kalu vs. The State and another (2022 SCMR 1515).
Furthermore, an Hadith relevant on the subject described in Jami at-Tirraidhi 1424 along with its translation and elucidation./ explanation by Imam Abu Isa Muhammad at-Tirmizi are reproduced herein below:- English "Narrated Aishah: that the Messenger of Allah (SAWW): Avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way, for if the Imam makes a mistake in forgiving it would be better than making mistake in punishment."
17. In view of the analysis and combined study of the entire evidence and careful reappraisal of the same, this Court led to an inescapable conclusion that the prosecution case is full of improbabilities, legal and factual infirmities of fatal nature and is pregnant with bristling doubts of grave nature. Thus, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. Resultantly, I accept appeal filed by Rashid Ahmad appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt. The appellant is on bail, his bail bonds and sureties shall stand discharged.
18. As a natural corollary, criminal revision filed by Mst. Rabia Bibi, complainant for enhancement of sentence of respondent stands dismissed.