2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

This criminal appeal arises from the judgment dated 28.9.2013, whereby the learned Additional Sessions Judge, Gojra, district Toba Tek Singh convicted Fahad (appellant) under section 376, P.P.C. and sentenced him to rigorous imprisonment for ten years and fine of Rs.2,00,000/- or in default thereof to undergo simple imprisonment for three months, with benefit of section 382-B, Cr.P.C., on conclusion of his trial in case FIR No.405/2011, dated 14.7.2011, registered for an offence under section 376, P.P.C. at Police Station Saddar Gojra (Toba Tek Singh).

2. Precisely, the prosecution story as narrated by Qasim Ali (complainant/P.W.6) in the FIR (Exh.PE/1) is that he and his wife Mst. Kausar went to a market, situated nearby Pakka Anna Railway Station, to buy some household articles at about 2.00 p.m. on 12.7.2011, leaving behind their virgin daughter Mst. Farzana, aged 16, alone at home; when they came back, they saw Hakim Ali PW (not produced) and Shaukat Ali (P.W.7) standing in front of the outer gate of their house, who told them that they knocked at the door, but none had opened it; in the meantime, he and his visitors heard screams of a girl, apparently arising from the house of Inayat Jatt, which was situated close to his house; they all drew near the said house and found, as if his daughter Mst. Farzana was crying; they rushed into Inayat Jatt's house and saw Fahad (appellant) lying over his naked daughter, with his Shalwar off the body; his daughter was shrieking then; the accused saw them and made good his escape; he immediately shifted his violated daughter to THQ hospital, Gojra for her treatment and medical examination; the medical officer issued MLR No.916/2011 about medical examination of his daughter. He came across Ali Raza Nadeem SI (P.W.9) at Adda Dawakhri, at 10.55 a.m. on 14.7.2011 and presented a written application (Exh.PE) before him, who despatched it to the police station through Abdul Majeed 301/C for registration of formal FIR, on the basis of which Atif Rizwan ASI/Muharrir (P.W.5) drafted FIR (Exh.PE/I), at 11.30 a.m., the same day.

3. On completion of investigation, report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the accused, Fahad (appellant), who pleaded not guilty and claimed a trial, when indicted.

4. The prosecution produced nine witnesses, namely, Dr. Ijaz Ahmad (P.W.1), Muhammad Arshad 709/C (P.W.2), Muhammad Akhtar 200/C (P.W.3), Dr.Naila Kashif WMO (P.W.4), Atif Rizwan ASI (P.W.5), Qasim Ali (complainant/P.W.6), Shaukat Ali (P.W.7), Mst. Farzana, victim (P.W.8) and Ali Raza Nadeem SI/IO (P.W.9) to prove the charge framed and closed its case on 15.8.2013 by tendering report of the Chemical Examiner (Exh.PK) and that of the Serologist (Exh.PL) in evidence.

5. Thereafter, he was examined under section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. He while answering the question, why this case against him and why the PWs had deposed against him stated as under:- "This is a false case against me by making false, fabricated and concocted story with the mala fide of the alleged PWs. In fact the complainant is my mother's Khala zad brother and he and his brother Hakim Ali and Shoukat Ali PW-7 want to get married Mst. Farzana the alleged victim with me but I and my parents were not willing and agree, so, due to our refusal and due to this grudge the complainant and his brothers Hakim Ali and Shoukat Ali malafidely prepared concocted story and registered this false and fabricated case and deposed falsely against me. The alleged victim Farzana is real daughter of the complainant and PW-6 Qasim Ali son of Eesa is real brother of the complainant while alleged eye-witness, Hakim Ali who is not deposed as PW are real Chacha, Taya (uncles) of the victim, according to her statement as PW-8 on 3rd page of her evidence. So, in these circumstances, the said story is fully fabricated and concocted." He declined to make statement on oath under section 340(2), Cr.P.C. or to lead any evidence in defence. Learned trial court held him guilty of the charge and sentenced him in the mentioned terms through the impugned judgment.

6. Learned counsel for the appellant has submitted that the prosecution has brought forth a false and fabricated case against the appellant for the sole reason that his parents had rejected hand of the complainant's daughter Mst. Farzana (P.W.8) for their son; medical evidence as tendered by Dr. Naila Kashif WMO (P.W.4) is inconclusive, as she did not record any opinion as to commission of sexual intercourse with the examinee; the reports of the Chemical Examiner (Exh.PK) and the Serologist (Exh.PL) also lent no support to the prosecution case being incomplete; the evidence of the alleged victim Mst.Farzana (P.W.8) is discrepant in many ways to the evidence of her father Qasim Ali (P.W.6) and her paternal uncle Shaukat Ali (P.W.7), which rendered the allegation of rape a baseless affair; the impugned judgment has been passed merely on conjectures and surmises, therefore, it may be set aside and the appellant may be acquitted of the charge.

7. Learned counsel for the complainant has argued that the ocular account is well-supported by the evidence of the victim Mst. Farzana (P.W.8) and the medical evidence, as furnished by the woman medical officer (P.W.4); the defence itself admitted during examination of the eye-witnesses that the accused/appellant had raped the victim at his house, where he took her on a false excuse qua illness of his mother; the impugned judgment is well-reasoned and compatible with the evidence on the record, therefore, it may be sustained at the cost of the appellant's appeal.

8. Learned Deputy Prosecutor General Punjab endorsed the submissions of the complainant's learned counsel and added that the appellant did not deny to have committed sexual intercourse with the victim-girl, who was his Mamunzad: the impugned judgment did not suffer from non-reading or misreading of the evidence, so it may be sustained, being a flawless pronouncement.

9. Learned counsel for the parties have been heard at length and relevant record has minutely been gone into with their assistance. It would be essentially good, if statements of the eye-witnesses, Qasim Ali (P.W.6), real father, and Shaukat Ali (P.W.7), real paternal uncle (Taya) of the victim, are taken up first, together with the testimony of Mst. Farzana (P.W.8), so as to adjudge veracity of the allegation against the appellant. The house of the victim was at a distance of about 100 feet from the house of the appellant, where she had allegedly been taken to and violated by the appellant. Qasim Ali (P.W.6), who is complainant, contended in his testimony that he along with his wife returned to his house from Pakka Anna Railway Station at about 2.00 p.m. and found his brothers Shaukat Ali (P.W.7) and Hakim Ali PW (not produced) standing in front of his house, where they all heard shrieks of his daughter emerging from the house of Inayat, real father of the appellant, so they went to the said house and found it locked from inside. According to him, his brother Hakim Ali went upstairs and jumped into the house to unlock the outer-door. On his opening the gate, he and his co-witness (P.W.7) also got into the house and saw Fahad accused (appellant) committing rape with his daughter, who cried being semi-unconscious. Her Shalwar was not on her body. The accused ran away after picking up his trousers from the bed. Shaukat Ali (P.W.7) did not find the outer-door of the appellant's house locked nor did he contend in his testimony that the given-up PW Hakim Ali had climbed the staircase to get into the said house and open the door. What he said was that, on hearing shrieks, he and his companions, Qasim Ali (P.W.6) and Hakim Ali PW (not produced) entered into Inayat Ali's house, where they found the appellant entering into Mst. Farzana (P.W.8), who cried in a semi-unconscious condition. He did not tell, if Mst. Farzana was half-naked or in full. He, however, contended that the accused picked up his clothes and ran away from the spot. He further said that they all entered in the appellant's house through its outer-door, which was not locked or bolted from inside. The discrepancies in the statements of Qasim Ali (P.W.6) and Shaukat Ali (P.W.7) are of massive nature and not to be ignored easily. Hakim Ali PW, who allegedly got into the house of occurrence through a staircase to open the locked outer-door, did not appear during trial and he was probably given up by the prosecution, though, no such statement of the public prosecutor is available on the record. The entry of witnesses in the said house and position of clothes of the rapist has been mentioned so discrepantly by both the witnesses that it is enough to doubt the veracity of their depositions, as to having witnessed the occurrence.

10. So far as the evidence of Mst. Farzana (P.W.8) is concerned, it lent a perceivable impression that she, most probably, did sex with the accused/appellant, being a consenting partner. She claimed to have been administered some intoxicating syrup by the accused and she was raped by him in a state of trance. If she had drunk an intoxicating drink, how could she raise a loud hue and cry despite being semi-unconscious, is a crucial question, which may also nullify her father's and paternal uncle's claim to have entered the accused's house and seen the occurrence of her violation by him. She claimed to have been rendered stark-naked by the accused, who also made himself completely naked before leaping over her. She also stated that she did not raise any noise when outer-door of the house was bolted by the accused from inside. The door of the room, wherein she was raped by the accused was not bolted from inside and it was merely shut at that time. If it was all true, as narrated by Qasim Ali (P.W.6) and Mst. Farzana (P.W.8), the accused, under no circumstance, could run away from the place of occurrence, firstly, for the reason of being completely naked and, secondly, being pitted against three maternal uncles including father of the victim, right at door step of the said room. Besides, sudden appearance of his three maternal uncles at the spot, might have unnerved and psychologically shattered him at that time. It was literally impossible for him to flee in this situation. It again reflected on veracity of the claim of the eye-witnesses that they had witnessed the occurrence. If Mst. Farzana (P.W.8) was found semi-unconscious at the time of the occurrence, why were not samples of her blood and stomach contents taken by the woman medical officer (P.W.4) for its chemical analysis, so as to verify the said allegation. Her clothes were not handed over to the investigating officer, Inspector Ali Raza Nadeem (P.W.9). The sheet (P1) of the bed, whereon she was allegedly raped, was not transmitted to the lab for its forensic analysis. It did not bear any stains of semen or blood when taken into possession through memo of recovery Exh.PF. The victim's statement did not seek corroboration from any independent source, including the medical evidence tendered by Dr.Naila Kashif WMO (P.W.4), who medically examined her, through Medico-legal Report (Exh.PD), at about 5.00 p.m. on 13.7.2011, about twenty-seven (27) hours after the alleged occurrence and she found no tear at her perineal region and introitus, despite she found bleeding in that area. Although, the examinee told the woman medical officer about her menstrual-period to have started or ended on 1.7.2011, yet, her bleeding vagina gave a lie to the said contention, as no wound or injury had been found by the lady-doctor in or around the perin(a)eum. The woman medical officer (P.W.4) contended that a girl done sex with, maidenly, might continuously bleed for about eight to ten hours, if wound not stitched, but in the instant case, bleeding even after twenty seven (27) hours might suggest that it was, but a cyclic emission. Medical evidence ruled out the probability of the examinee's first exposure to such an experience.

11. According to the victim (P.W.8), she wore no dress at the time of occurrence, having her clothes been removed by the accused, still her Shalwar, regarding which no memo of recovery is available, was found stained with semen by the Chemical Examiner vide Report Exh.PK, but grouping thereof could not be done by the Serologist, being too small in quantity, as is manifest from the report, Exh.PL. The report of the Chemical Examiner (Exh.PK) revealed that the swabs taken from perineal region, introitus and vagina by the woman medical officer were not found stained with semen. It is why the woman medical officer did not record any opinion, as to commission of rape with the examinee, in the medico-legal report (Exh.PD) nor did she depose about it in her testimony, that she recorded before the learned trial court.

12. All the facts, enumerated hereinabove, categorically established that the prosecution has badly failed to prove its case against the appellant, hence, a couple of ill-advised positive suggestions, made to Qasim Ali (P.W.6) and replied by him in affirmative, would not matter much. The appellant, when examined under section 342, Cr.P.C. categorically declined to have committed the offence and contended to have been falsely involved herein in the backdrop of his parent's denial to accept the hand of the complainant's daughter. This plea of the accused may be wholly baseless, but it is hard to believe that it was a case of rape, as defined by section 375, P.P.C. The impugned judgment did not entail a single good ground, which may essentially render it sustainable. It certainly suffered from non-reading and misreading/ misappraisal of evidence, hence, it is liable to be set aside. Done accordingly.

13. The present appeal is accepted, the conviction/sentence of the appellant is set aside and he is acquitted of the charge. He is directed to be released from the prison forthwith, if not required in any other case. WA/F-21/L Appeal allowed.