The present appeal calls in question the legality and propriety of the judgment dated 6-6-1983, whereby the learned Sessions Judge, Bhakkar, had convicted the appellant under section 354, P.P.C. And sentenced him to one year and six months' R.I.
2. The brief facts leading to the present appeal are that on 22-11-1982 at 11-00 a.m.. Hidayat Ullah (P.W.1), the complainant in this case, went to Government Primary School, 71/TDA, for the purpose of enquiry about the books of library. When he entered the room of the school he found Master Muhammad Sabir accused/appellant having Mst. Nasreen daughter of Nazir, aged 5/6 years, student of class one, in his lap. Both had put off their Shalwars. Master Muhammad Sabir, accused/appellant, was in a sexual mood and the girl was in a fearful mood. Muhammad Sabir was kissing her. As soon as the complainant entered the room the girl started weeping and Muhammad Sabir got confused. The complainant protested against this act. The other school students who were playing Kubbadi on the western end dunes of the school, also came there. In the meantime Ibrahim and Rashid PWs also came to the school and in their presence Muhammad Sabir confessed his guilt. The complainant and other witnesses took Mst. Nasreen to her house. Her father was not present at the house and that on the next day, taking Mst. Nasreen, the complainant, left for the police station but, on the way, the police officer was found at Nautak Adda, patrolling the Ilaqa, and the complainant made the report there. The police investigated the case and submitted the challan to the trial Court.
3. The accused denied the charge and wanted to be tried. In order to prove its case the prosecution had examined four witnesses. Hadayat Ullah (P.W.1) was the complainant in the case.
He described the occurrence in detail, as given in the F.I.R. And also stated that he had made the report Exh.PA. At Nautak Bus-stand. The second witness of the prosecution is Mst. Nasreen herself.
She stated that Muhammad Sabir accused/appellant intentionally sent the school boys for playing. The accused/appellant asked her to bring the chair inside the room of school. He also asked her to sit in his lap. She did not agree and the accused forcibly made her sit in his lap. He then took off her Shalwar as well as his own. In the meantime Hadayat Ullah P.W. Came and the accused started begging forgiveness. She made it clear that accused besides opening her Shalwar and making her sit in his lap did not do anything else. Ghulam Qasim F.C. (P.W.3) had formally drawn up the F.I.R. Exh.PA./1. On receipt of the statement Exh. PA. Muhammad Ali S.-I. (P.W.4) had investigated the case and had found the accused/appellant guilty. He had recorded the statement Exh.PA. Of the complainant. He prepared the site plan Exh.P.D. And he recorded the statements of the witnesses. He arrested the accused on 28-11-1982 and after completing the investigation he submitted the challan. He stated in cross-examination that though certain witnesses appeared in defence of the accused but it was after the submission of the challan. He denied that any witness appeared in defence during the investigation.
4. The accused in his statement under section 342, Cr.P.C. Denied having committed the offence as alleged. He ascribed the case to enmity with Hadayat Ullah P.W. He stated that there was party faction in the Chak and the complainant Hadayat Ullah and Nazir father of the complainant belonged to his opposite faction. He produced seven witnesses in his defence. Bashir Ahmad (D.W.1) Assistant Education Officer, Bhakkar, deposed that in the beginning of November, 1982 Hadayat Ullah complainant had come to him and wanted transfer of the accused/appellant saying that he belonged to the opposite faction and was not properly coaching his children and that he asked him to make a regular application in this behalf, but the complainant did not return.
The witness denied the suggestion that Hadayat Ullah P.W. Had come to him to give information that after the arrest of Muhammad Sabir the other teacher Muhammad Akram was interfering with the school record and that Muhammad Akram be transferred and record taken in possession. He denied that the complainant made an application in writing in this behalf and Headmaster Government High School Bhel was appointed as an Enquiry Officer. Muhammad Bakhsh (D.W.2) who had remained Headmaster Bhel Centre, from 1-5-1975 to 2-10-1982, also stated that Hadayat Ullah had come to him for the transfer 'of Muhammad Sabir saying that he was his enemy and the witness had asked him to make an application in writing. However, no such application was given.
In doss-examination he admitted that he could simply forward applications for transfer with his recommendations to the higher authorities and that he himself could not make any transfer. He denied that he was supporting his colleague by making wrong statement. Muhammad Akram (D.W.3) deposed that no such occurrence, as reported, had taken place and Hadayat Ullah had never visited the school on the alleged day of occurrence. He admitted that he had been working as a colleague of the accused/appellant for about nine months. However, he denied that he was supporting his colleague falsely. He admitted that on a complaint by Hadayat Ullah, Ghulam Rasool, Naib-Headmaster Bhel had conducted an enquiry into an allegation against him that he had been tampering with the record. He denied that he was absent from the school on the day of occurrence. He admitted that the complaint of Hadayat Ullah was that generally the witness remained absent and the enquiry be made for his absence. Ghulam Haider (D.W.4) was Chowkidar of Chak No.71/TDA. He stated that about a year back he made a complaint against Nazir father of Mst. Nasreen PW for having cut and misappropriated the Government Shisham trees and that in an enquiry by a Qanungo Muhammad Sabir accused/appellant had appeared as a witness against him. He also stated that Muhammad Sabir had falsely been involved in this case. In cross- examination he admitted that Muhammad Sabir accused/appellant belonged to his brotherhood.
However, he denied his relationship with him, but in the next sentence he admitted that he was real uncle of Rab Nawaz, sister's husband of Muhammad Sabir accused/appellant. Ibrahim (D.W.5) and Akbar (D.W.6) who were actually cited as witnesses in the F.I.R. Before whom the accused/appellant had confessed his guilt, deposed that no such occurrence had taken place. Admittedly these witnesses were cited as prosecution witnesses. They were given up by the prosecution as having been won over. Raja Akbar (D.W.7) deposed that the accused was a gentleman and no occurrence as reported had taken place and that Hadayat Ullah complainant had a dispute with Muhammad Sabir because the latter's maternal uncle had contested an election of Zakat Committee against Hadayat Ullah and that Muhammad Sabir had supported his maternal uncle.
The learned counsel for the appellant and the State have been heard at length and the record of the case perused with their assistance.
The learned counsel for the appellant submitted that in the instant case there is no independent witness to corroborate the version of the complainant. Further submitted that P.W.1 is inimical to the appellant and it has been so established by the testimony of the prosecution itself and that; therefore, no reliance can be placed on his testimony and the same needs to be discarded. Further submitted that in the instant case the delay of hours in lodging of the F.I.R. Is fatal to the case. In this respect, submitted that although an attempt has been made to explain the same by stating that the victim/child's father was not available on the day of occurrence and that, therefore, the F.I.R. Was lodged a day later when he became available, yet the said father of the victim/child has not been produced as a witness to prove the said assertion and explanation on behalf of the prosecution, and furthermore, strangely the father did not accompany the victim/child and the complainant for lodging of the F.I.R. Further submitted that the present case is of such a nature that no conviction can be sustained on the solitary statement of the alleged victim/child, for tutoring having taken place cannot be ruled out. Further submitted that the offence charged is such that by itself it does not corroborate the statement of the victim/child. To elaborate it further submitted that in case the offence was such in which the medical evidence was available to corroborate the offence charged, there may have been the possibility of basing the conviction on such corroborative evidence supporting the allegation of the victim/child. Further submitted that in the instant case defence evidence cannot be brushed aside summarily and that due weight has to be given to the same and contended that the failure of the learned trial Court to do so, has resulted in great miscarriage of justice.
Learned counsel for the State opposed the present appeal but failed to controvert the contentions raised on behalf of the appellant.
There is a great deal of force in the arguments advanced in support of the present appeal. It is most relevant to note that the prosecution had failed to produce the father of the victim/child P.W.2, Mst. Nasreen, to support its assertion that the delay in lodging of the F.I.R. Had taken place as her father was not in the house immediately after the alleged occurrence and that, therefore, the F.I.R. Was ~ lodged a day later when he became available. It is even more intriguing to note that the father never accompanied the victim---his own daughter---to the police station. The failure of the prosecution to produce the father has resulted in a vital link missing from the instant case, and that, therefore, the delay in lodging of the F.I.R. Raises legitimate suspicion about the F.I.R. Having been lodged after due deliberation, and therefore, the possibility of the P.W.2 Mst. Nasreen, the victim/child, having been tutored cannot be ruled out.
Therefore, in keeping with the principles of safe administration of criminal justice, the doubts so arising have to be resolved in favour of the appellant. Furthermore, it stands established by the evidence of the prosecution itself, as stated above, that P.W.1 Hadayat Ullah, eye-witness of the alleged occurrence, was inimical to the appellant, therefore, no reliance can be placed on his testimony under the facts and circumstances stated above. Resultantly in pursuance to the above discussion, it is hereby held that the prosecution had failed to prove its case beyond reasonable doubt against the appellant. Therefore, the present appeal is allowed and the impugned judgment is hereby set aside and the appellant is acquitted of the offence charged. He is on bail, his bail bonds stand discharged.