' MUHAMMAD ASHRAF LEGHARI, J.--- Through this appeal the appellants have impugned the judgment, dated 12-7-1999 passed by Judge, Anti-Terrorism Court No,III, Karachi in Special Case No,176 of 1999 (State v. Rafiullah Kakar and others) under sections 392/377/452/506-B/170/34, 10(3) and 12 of Offence of Zina (Enforcement of Hudood Ordinance), 1979 arising out of Crime No,25 of 1999 of Police Station Darakhshan whereby the appellant Rafiullah Kakar is awarded death sentence under section 392, P.P.C. Read with section 10(4) of Offence of Zina (Enforcement of Hudood Ordinance), 1979 and imposed fine of Rs,1,50,000 in case of failure he has to undergo R.I. For two years. Appellant Osaf Anwar and Naveed were awarded sentence of R.I. For 5 years in view of section 7 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979 and same fine as stated above as both the appellants Nos.2 and 3 were below the age of 16 years.
2. The brief facts as narrated by complainant Mahak Iftikhar Khan in the F.I.R. Lodged by her on 26- 2-1999 that on the night of 23-2-1999 at about 2-00 a.m. When she and her husband were watching T.V. They heard some noise of breaking the door. They came out of their bed room and found that Rafiullah Kakar who had' met them about 15/20 days back and introduced himself as Sub-Inspector of Darkhshan Police Station alongwith his two companions were present inside their house. She asked Rafiullah Kakar as to why he had broken. The. Door but they came nearer and confined her husband in bath room; After that they removed her clothes and all of them forcibly raped her from both sides. At the time of departure they snatched Rs,4,000 from her and threatened her not to lodge report. They due to fear went to the house of her mother and on 26-2- 1999, they went to police station and lodged the report that Rafiullah Kakar alongwith his two- companions whose names she learnt later on to be Osaf Shah and Naveed Mangro.
3. The police took up investigation of the case and made arrest of the appellants. On conclusion of investigation the police submitted challan.
4. At the trial the prosecution examined P.W.1 Dr. Yasmeen Tahira, P.W.2 Dr. Khuda Bux P.W.3 victim lady Mahak Iftikhar, the complainant Exh.20. P.W.4 Muhammad Ejaz Awan S.I.P. Exh.23, P.W.5 Iftikhar Mehmood Khan P.W.6 Investigating Officer Abdul Rehman, Exh.28. The trial Court Ultimately came to the conclusion that prosecution has succeeded to bring home the guilt of accused and awarded sentence against them in terms stated above.
5. It is contended by Mr. I.A. Hashmi learned counsel for appellants that F.I.R. Of this incident is delayed by about 4 days and no plausible explanation is furnished by the prosecution. It is argued that the flat in which this incident has occurred is situated on third floor of the building and is surrounded by other flats in such situation the independent evidence could be available particularly when the allegations are that the door of house was broken but the prosecution has failed to examine any witness from vicinity. It is pleaded that the Mashirnama of Wardat does not indicate that the door was actually broken where from the culprits intruded. The complainant Mahak, the victim lady and her husband have contradicted each other on material aspects of the case. The facts initially narrated in the F.I.R. Have been exaggerated to great extent. The ocular evidence is not corroborated by the medical evidence. It is further asserted that nothing incriminating was recovered from the possession of accused. The learned counsel further stated that the accused was beaten by the police severally and the injuries were allegedly claimed to have been caused by fall on the stone. He urged that the investigation was dishonest and the trial Court has erred to rely upon the testimony of victim lady and her husband. According to him the evidence is misread and misappropriated which caused grave injustice. He placed reliance on PLD 1963 Dacca 908, PLD 1960 SC 325, PLJ 1984 FSC 160, PLD 1983 FSC 200, PLD 1982 FSC 151; PLD 1963 Kar.
684, 1976 PCr.LJ 980 = 917, 1976 PCr.LJ 364, 1995 SCMR 1137, 1345, 1995 PCr.LJ 157, 1994 PCr.LJ 327, 1993 SCMR 1628, 1993 PCr.LJ 185, PLD 1983 FSC 204, 1998 PCr.LJ 1250, 1996 SCMR 1910, 1978 PCr.LJ 766 and PLD 1988 FSC 3.
6. Mr. S. Jalil A. Hashmi learned A.A.-G. For the State has supported the impugned judgment and has argued that ample evidence has come on record which implicate the accused and that the evidence of victim lady and her husband is sufficient to sustain the commission awarded to appellants. He however, stated that the death sentence may be modified and be converted into imprisonment for life as it would meet the ends of justice.
7. The perusal of record reveals that the F.I.R. Is delayed by about 4 days. The complainant has deposed in the Court that the culprits threatened them and said that if they raised commotion then they would call some other fellows, waiting outside duly armed with the fire-arm weapons.
The hands and feet of her husband were tied and was confined in bath room. Her testimony further reveals that the accused Rafiullah Kakar put of her clothes and committed Zina-bil-Jabr with her and thereafter, he committed carnal intercourse and she has stated that thereafter Naveed and accused Osaf also committed rape. She stated that Osaf and Naveed had not committed sodomy with her and in the end she stated that Rafiullah Kakar again committed carnal intercourse with her. The lady has further stated that when one accused used to commit Zina the other two used to remain outside. She has further deposed that they threatened her and Rafiullah Kakar informed her that he is Sub-Inspector at Darkhshan Police Station and he would again come to her and she can do whatever she like. She urged that at the time of decamp Rafiullah Kakar has snatched Rs,4,000 from her. She alleged that Rafiullah Kakar was armed with pistol and at the time of leaving they had untied her husband. The complainant has admitted that she was interrogated before recording her F.I.R. She has stated that she do not remember, whether she has stated before police that after hearing noise of breaking the door she and her husband woke up from sleep. The facts as narrated above do not find place in F.I.R. We are conscious of the fact that the F.I.R. Is not substantive piece of evidence. However, the fact remains that this is a version initially set up by complainant, on the basis of which the investigation and the law comes into motion. In her F.I.R. She has not stated that any of the culprit was armed with fire-arm. She has likewise not stated the fact that the culprits had threatened them that some of their armed companions were waiting outside.
She did not state in her F.I.R. That the hand and feet of her husband were tied by a rope. She has stated in her F.I.R. That all the accused committed rape with her from both sides and has not named any particular person, who committed carnal intercourse with her.
8. The evidence of Iftikhar Muhammad Khan husband of victim lady reveals that he brought his wife to the house of her mother as she was feeling pains and he kept her there for about 2/3 days.
He had further stated that the accused were armed with pistols. This witness has stated that the incident had occurred while he and his wife were watching T.V.
9. We have noticed from the deposition of aforesaid two witnesses who are the star witnesses of the prosecution story and we can only regret that the evidence of both these witnesses is exaggerated in such a manner that the abovementioned facts have neither been stated in the F.I.R.
Lodged by complainant nor in the 161, Cr.P.C. Statement of her husband so also his 164, Cr.P.C.
Statement. The Investigating Officer Abdul Rehman has stated that P.W. Iftikhar had stated before him in his 161, Cr.P.C. Statement that at about 2-00 or 2-15 a.m. He and her wife were sleeping in their house and they woke up on noise of breaking of door. The Investigating Officer has admitted that P.W. Iftikhar had not stated in his 161, Cr.P.C. Statement that he was tied and confined in bath room. Similar is the position of deposition of complainant recorded in the trial Court. The Investigating Officer has stated in this respect that she had not stated in her F.I.R. That Rafiullah Kakar or any other culprit was armed with pistols. The Investigating Officer admitted that she had not stated in the F.I.R. That she went to her mother as she was feeling pains and remained there for 2/3 days. She had not given the particulars and specifications of the rape and carnal intercourse as deposed by her in the Court but stated in F.I.R. General terms that all accused committed rape and carnal intercourse.
10. The case of victim and her husband is that the main gate of the flat was broken wherefrom the culprits intruded. The Mashirnama of Wardat indicate that the door was slightly broken. The fact that the culprits had entered the house after breaking it should show specifically that it was actually broken whereby they had come across their flat. Furthermore, the complainant and her husband have left the house for the house of her mother and in case the outer door was broken it must have been repaired before leaving the flat for 2/3 days. This indicates that neither the door was damaged nor its locking system.
11. The police had visited Wardat and neither secured the said rope nor anything incriminating accused with the crime.
12. So far medical evidence is concerned the victim was examined by Dr. Yasmeen on 27-2-1999 at 1-30 p.m. She found that victim was subjected to fresh act of annal and vaginal intercourse. This report is of no help to prosecution in view of the fact that the doctor has given her opinion that the act of carnal intercourse is fresh. The word fresh does not imply or indicate the act, which had taken place about 5 days back. The doctor does not mention the specific time. Moreover, the annal swa bs were not present nor were preserved by the doctor. The vaginal swabs are of no use because the chentical report is negative. This piece of evidence, therefore, is of no help to the prosecution and does not corroborate the evidence of victim. The other piece of evidence, which was collected by the police, is two trousers of victim, which were stained with semen. The report of Expert is that the trousers contain human semen. The semen of accused is not sent for examination in order to obtain matching report to The seman available on the trousers of victim. There is no other piece of evidence, which could corroborate the version of victim and her husband. The F:I,R.
Of this case is delayed by about 4 days without any reason. The only reason displayed is that the victim was feeling pains. It is no reason for not lodging report for 4 days. This fact has great significance, which could be attributed to consultations, and fabrications, to implicate the innocent persons in the incident ultimately the prosecution might wish to implicate. The unexplained delay with improvements, exaggerations and contradictions made by the witnesses in their statements, make their testimony doubtful and unreliable, which did not inspire confidence. The reference in this context be had to a case of Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 wherein their Lordships have held as under:-- "If Qamaruzzaman was in post haste to reach the police station immediately and had rushed without talking to Abdul Rashid, then there is no explanation why he reached there at 8 p.m.
Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particularly case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. This does not mean that in any other case where the complainant does not mention the names of the accused an adverse inference has to be drawn but in cases where the facts show that in the normal circumstances the complainant could have known or obtained the names of the strong piece of evidence is produced to substantiate the prosecution case. In the present case if the complainant would have reached the police station within 15 to 30 minutes of the incident, one could say that immediately after the incident the complainant having no interest in the matter had rushed to the police station to lodge information so that immediate steps may be taken by the police. Such is not the case here and as discussed above, the delay in particular circumstances of this case has not been explained. This creates doubts on the testimony of Qamaruzzaman."
13. The facts on record are indicative that the accused Rafiullah victim and her husband had some kind of close connections much more than that only acquaintance. This can be reflected from the deposition of P.W. Iftikhar Muhammad Khan who has deposed in the Court as under:-- "Vol. Say that 10/12 days earlier to the present incident alongwith my wife had gone to Delton Store where.I was sitting with my wife in car and the accused Rafiullah Kakar came there and asked me to send my wife with him for half an hour and on such demand of the accused there was confrontation in between me and him and he had threatened me of dire consequences as according to him he was the S.I.P. Of Police Station Darakhshan. It is correct to suggest that I had gone to Police Station Darakhsan after the aforesaid confrontation of accused and me. It is correct to suggest that I do not lodge the F.I.R. Of the confrontation in between me and accused Rafiullah Kakar held 10/12 days prior to this incident. After the incident of aforesaid confrontation there was no meeting in between me and accused or talk prior to present incident. It is correct to suggest that prior to present incident I had mobile telephone having connection No,4321462 of 0321 Code. It is incorrect to suggest that I and my wife were sleeping and both woke up on the noise of breaking of door of my flat."
14. There was some annoyance between the parties but the victim lady and her husband have suppressed the facts and have not come with clean hands. On the contrary the accused has examined himself on oath and examined a witness in his defence. The story that husband of lady borrowed some money from accused and he refused to repay on demand may have some truth in it. We are sure that incident in the manner as narrated by the complainant and her husband has not taken place. They have tried their best to conceal the true facts and distort the story, which has caused a reasonable doubt in our mind. Even a single circumstance, which creates doubt in the mind of Court, is sufficient to disbelieve the prosecution case. It is not necessary there should be so many circumstances for creating doubts. The reference can be made to a case of Tariq Pervaiz v.
The State 1995 SCMR 1345 wherein their Lordships have held as under:- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right."
' The same view was earlier taken by the apex Court in the case of Muhammad Islam v.
Government of N.-W.F.P. 1998 SCMR 1993.
15. The rest of the evidence is that of Investigating Officer which is of no importance as nothing incriminating was recovered from the Wardat or from the possession of accused.
16. The appellants had sustained so many injuries on their various part of bodies. The case of police is that they sustained injuries by fall on stones when they tried to decamp. Three accused had sustained 11 injuries on their person. The accused were examined by Dr. Khuda Bux on 27-2-1997 and the duration of said injuries was different as some of them were caused 2 to 3 days before and some of them had duration of 12/24 hours. The accused have examined them on oath and stated that they were arrested on 25-2-1997. This fact gets support from defence witnesses as well as from medical evidence. This all is suggestive of the fact that police came in motion before lodging the F.I.R. And made arrest as stated above. They caused torture to teenager accused but yet could not discover anything incriminating in this situation, we cannot approve such type of dishonest investigation. The complainant has stated that she was interrogated by the police before her F.I.R.
Was recorded. The suggestions in the case are indicative that the S.H.O. Of concerned police station was acquainted to the complainant and he was in contact with the police before lodging the F.I.R. The complainant and her husband have told lies to the Court. Such situation destroys the case of prosecution as these are basic Foundations and are uprooted in the entire structure. Such lapses on the part of prosecution entailed miscarriage of justice. It is really deprecated situation so far the part of police is concerned. The reference can be made to a case of Mst. Muhammadia v.
Zari Bacha and another PLD 1982 Pesh. 85 wherein his Lordship has held as under:- "The police station lies at a distance of four miles from the spot yet no effort was made by anybody to rush to the police station for lodging the report. The testimony of Mst. Muhammadia that she has asked her maternal-uncle Hassan Gul to go and see the police has gone uncorroborated as Hassan Gul has not been produced at the trial by the prosecution to support the above submission of Mst. Muhammadia. Then as luck would have it all of a sudden police party reached the house of the deceased where the report was lodged after an hour of the incident. The statement of Abdul Qadoos Khan, A.S.-I. That he received the information while on Gasht, went to the spot and thereafter to the house of the deceased where Mst. Muhammadia disclosed the source of information nor recorded that information it not writing. We would, therefore, be justified to infer that the Investigating Officer was fully informed outside the village of the incident, he did not reduce it into writing but instead reached the house of Mst. Muhammadia and recorded the report at the spot after having made the investigation. In this respect reference may be made with advantage to the admission of Mst. Muhammadia who at the trial stated that on arrival, the S.H.O.
Inspected the dead body, recovered the empty shell and packed the same into a parcel and thereafter her report was recorded. It means that the report was recorded after preliminary investigation of the case and, as such, the alleged F.I.R. Has completely lost its sanctity."
17. For the foregoing reasons the implugned judgment and the sentence connot be sustained. The appeal is allowed and sentence is hereby set aside.The appellant be released forthwith if not required in any other case.
18. The reference forwarded for confirmation of death is hereby dismissed.