2014 PLP 853 (YLR)

SHEIKH AHMAD FAROOQ, J.

Through the instant criminal appeal, the appellant/Syed Talib Hussain son of Syed Ghulam Muhammad has challenged the judgment dated 10-11-2011 delivered by the learned Additional Sessions Judge, Lahore whereby the appellant has been convicted under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty five years'' R.I with benefit of section 382-B Cr.P.C. However, two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, who are real brother and father, respectively, of the appellant /Talib Hussain were acquitted of the charges vide the same judgment dated 10-11-2011.

2. Precisely, the prosecution story as narrated by the complainant/Mst. Hanifan Bibi (P.W.2) in the complaint (Exh.PB) on the basis of which formal F.I.R. No.213 of 2002 dated 20-4-2002 (Exh.PA) was registered at Police Station North Cantt: (Shumali Chowhani) Lahore, is that the complainant is resident of Altaf Colony (Fareed Town) Hussain Road, Lahore Cantt. and a poor lady, having children. Her husband namely Muzammil Hussain is a permanent patient and in order to bear the daily house-hold expenditures, the daughter of the complainant namely Shahzadi, aged about 17/18 years, who is unmarried, used to do embroidery for earning. The complainant had obtained a house on rent of Rs.1000 per month at Khyber Colony, Kachi Abadi, Lahore Cantt. for facilitating her daughter and paid three months advance rent of Rs.3000 along with security of Rs.2000 to Talib Hussain son of Ghulam Muhammad (landlord) although, the owner of the house was Ghulam Nabi, his elder brother, who is a proclaimed offender in a theft case in Police Station North Cantt. Talib Hussain/accused during the period of tenancy, tried to develop relationship with her daughter/Mst. Shahzadi and one day the said Talib Hussain with the help of his brother/Shakir Ali took some photographs of her daughter and started blackmailing her. On 7-2-2002, at about 6/7 p.m., the complainant had gone to `Bazaar for some work when Talib Hussain/accused trespassed into her house and upon his direction, his brother Shakir Ali closed the door of the house from outside by bolting it. Thereafter, Talib Hussain/accused forcibly committed 'zina-bil-jabr' with the daughter of the complainant without her consent. In the meanwhile, complainant came back from "bazaar" and Shakir ran away upon seeing her. The complainant opened the door of the house and saw Talib Hussain present in the room and committing 'zina' with her daughter, who was raising hue and cry. On seeing the complainant, the accused/Talib Hussain also ran away. The inhabitants of "mohallah" were also attracted to spot and they saw Talib Hussain running. The complainant alleged that accused/Talib Hussain gave her threats of dire consequences in case, she reported the matter to police, he would burn down her house and abduct her daughter/Shahzadi. After some time, the accused/ Ghulam Muhammad, Shakir Ali and Talib Hussain started throwing the luggage of the complainant out of the house and not only misappropriated most of it but also forcibly occupied the house. The complainant along with her daughter went to Police Station North Cantt. on the same day but no proceedings were initiated. The police also did not get her daughter medically examined, whereupon she got her medically examined on the orders of Special Judicial Magistrate, 1st Class Lahore Cantt. The complainant requested for initiation of proceedings against the accused persons and for restoration of the possession of the house along with the misappropriated luggage.

3. After completion of usual investigation, a report under section 173 Cr.P.C. was submitted in the learned trial Court against the accused for taking cognizances of the offence.

4. The learned trial Court framed the charges against the convicted accused/ present appellant /Talib Hussain as well as acquitted co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad on 18-9-2004 under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 448/34 and 380/34 P.P.C. The accused did not plead guilty and claimed to be tried.

5. In order to substantiate the allegations levelled by the complainant and to prove the charges, the persecution got recorded statements of as many as six witnesses including the statements of the complainant and the victim which were recorded as P.W.2 and P.W.3, respectively. The ocular account of the incident was furnished by complainant herself/Mst. Hanifan Bibi (P.W.2) and his daughter namely Mst. Shahzadi/ victim(P.W.3). The medical evidence was tendered by lady Dr.Lubna Nasim /P.W.4, who had medically examined the victim on 13-2-2002. P.W.4 recorded the following observations in her medical report:-- "A young unmarried girl of average built, conscious well oriented in time and space, gave history of sexual assault by one person on 7-2-2002 at about 7.00 p.m. L.M.P 3-2-2002. General Examination. No marks of any recent violence on her body except a scabbed abrasion 1.5 x.2 cm back of left hand. Local examination: (1) No mark of any injury on her external genetalia. (2) No stains of semen or blood or her body or clothes, history of change of clothes, history of bath taken. (3) Hymen torn showing multiple tear around the circumference which were old and completely healed but one tear at 3-0 clock position was in the healing stage showing oxidative edematous red margins which bled to touch. A big tear completely healed at 6-0 clock position. A small laceration 0.8 x 0.5 cm in healing stage tendered to touch and red in colour was present at the fourchette. Vagina admitted two fingers tightly. Three vaginal swabs were taken, sealed and sent to the Chemical Examiner for detection of semen, blood and semen grouping. The opinion will be given after receiving the Chemical Examiner report. The lady doctor/P.W.4 after receiving the Chemical Examiner Report No.228 dated 22-3-2002 opined that the sexual act per vagina had been committed. P.W.5/Ghulam Abbas, S.I, who is I.O. of this case, narrated various steps taken by him during the investigation including the arrest of the accused on 28-10-2002. On completion of investigation, he submitted the challan against the accused in the court. P.W.6/ Dr.Syed Zia-ud-Din examined the accused/ Syed Talib Hussain on 29-10-2002 and did not find anything to suggest that he was unable to perform sexual act/intercourse. The remaining witness i.e. P.W.1, produced by the prosecution, is formal in nature.

6. After the closure of the evidence of the prosecution, the statement of the convicted accused/present appellant was recorded under section 342, Cr.P.C. on three different dates of hearing i.e. 5-12-2006, 19-10-2011 and 2-11-2011, wherein he denied the allegations levelled against him by the complainant. Accused/Talib Hussain, in response to a crucial question as to "why this case and why the P.Ws. deposed against you" replied as under during his examination under section 342, Cr.P.C. on 19-10-2011: "Hanifa, P.W.2 came to me for obtaining a house on rent and told me that her husband was dealing in narcotic and she wanted a separate residence. Hence, I handed over the key of my house in Khyber Colony to Hanifa/P.W.2, She promised that she would bring her I.D Card after three days. After three days when I went to the house of Hanifa/P.W.2, I saw that other women were also present in her house hence I stood outside the house. Upon her insistence I went inside the room where she offered me tea, which I took. In that tea some intoxicant was present. I became semiconscious upon which some girls sat with me and my pictures were taken which were distributed in the area. I became conscious at 11/11-30 midnight when I was lying in the courtyard and one Shaukat picked me up. I moved an application in Police Station North Cantt. which I would produce in defence evidence. When no proceedings were initiated I moved an application before S.P. Cantt. An inquiry was conducted by Ashraf Khichi, A.S.-I. and Ashraf Khichi A.S.-I. in report dated 10-3-2002 elaborated that I did not get myself medically examined and neither the victim Shahzadi/P.W.3 got herself medically examined and both the applications of the complainant and my application were the result of fact that the possession of my house was disputed and both the parties were trying to occupy the same. Applications are for vacation of the disputed house. When Ashraf Khichi A.S.-I. on 10-3-2002 has reported that the Shahzadi victim/P.W.3 had not got herself medically examined then how can her medical examination be held on 13-2-2002. We had given 60,000 dollars to Tahir Rasool son of Ghulam Rasool stamp vendor who at present is in USA. Ghulam Rasool and Tahir Rasool misappropriated the said amout. We demanded the return of money. In retaliation he not only lodged the in hand F.I.R. but also F.I.R. No.459/2002 Police Station North Cantt. an F.I.R. of dacoity and an F.I.R. of murder against us. Apart from the F.I.R. a civil suit was also filed by him. Hanifa Bibi had illicit relationship with said Ghulam Rasool stamp vendor and they had relationship with each other since 1987. In fact in the year, 1987 Hanifa Bibi had lodged an F.I.R. under Hudood case against Zahid Rasool son of Ghulam Rasool as well and both parties entered into compromise later on. Ghulam Rasool and Hanifa Bibi helped each other in different civil and criminal litigations which shows their deep link with each other. Even the services of the summons issued in the in hand case were effected by said Ghulam Rasool. On account of this grudge a false F.I.R. was lodged by Hanifa Bibi/P.W.2, all the witnesses are false". The convicted accused/present appellant also made a very lengthy statement on oath in disproof of the allegations/ charges as envisaged under section 340(2) Cr.P.C. The accused also produced three witnesses in their defence. Additionally, the convicted accused/present appellant placed on record documents/Exh.D-1 to Exh.D-113 in his statement under section 342 Cr.P.C. dated 2-11-2011 as well as while appearing as his own witness on 28-10-2011.

7. Upon conclusion of the trial, the learned trial Court vide judgment dated 10-11-2011 while acquitting the co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, convicted Talib Hussain/present appellant as mentioned in paragraph-1 of this judgment.

8. Mrs. Fakhr-un-Nisa-Khokhar, Advocate, learned counsel for the appellant submitted that there is an unexplained delay of about 2-1/2 months in the registration of the case as the occurrence took place on 7-2-2002 whereas the F.I.R. was lodged on 20-4-2002. She further submitted that not only the medical examination of the alleged victim namely Mst. Shahzadi was got conducted privately after five days of the occurrence i.e. on 13-2-2002 but also the report of the lady Dr.Lubna Naseem (P.W.4) was false and maneuvered. In fact, the learned counsel for the appellant alleged that another woman was produced before the lady Dr.Lubna Naseem/P.W.4 for medical examination as is evident from the incorrect entries regarding the name of the father of Mst. Shahzadi as well as her age. She clarified that the name of the father of Mst. Shahzadi as admitted by the complainant/Mst. Hanifan Bibi, is Sher Khan, who divorced her and the second marriage of the complainant took place with Muzammil Khan about 25/26 years ago. She claimed that in view of the duration of the second marriage of Mst. Hanifan Bibi/ complainant/P.W.2, the age of Mst. Shahzadi, who was born out of the wedlock of Mst. Hanifan Bibi with Sher Khan, could not be less than 27 years. She also challenged the genuineness of the application filed by Mst. Hanifan Bibi before the Magistrate, Police Station, North Cantt. Lahore dated 11-2-2002/Exh.PC as well as the orders passed thereon by the learned Magistrate. She maintained that neither the semen of convicted accused was obtained for its grouping by the I.O. nor DNA test was got conducted despite the request made by the accused to the learned trial Court in this regard through an application. She submitted that the previous enmity of the parties for false implication of the present appellant is proved from the record. She emphasized that the two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, who are real brother and father of the present appellant, respectively, have been acquitted by the learned trial Court while relying on the same set of evidence and as such, the conviction of the present appellant cannot be maintained. She pointed out that there is no eye-witness of the commission of "zina" by the convicted accused/Syed Talib Hussain with Mst. Shahzadi and the statement of the victim is neither confidence inspiring nor supported by the medical evidence. She highlighted various discrepancies, contradictions and improvements in the statements of the witnesses of the prosecution, which, had created doubt regarding the genuineness of the prosecution story. She asserted that the benefit of doubt should be given to the accused. While concluding her arguments, she argued that the prosecution story is highly improbable and the complainant/ P.W.2/Mst. Hanifan Bibi and victim/Mst. Shahzadi/P.W.3 are not reliable witnesses in view of their antecedent. She pleaded for setting aside the impugned judgment dated 10-11-2011 and acquittal of the appellant from the charges. In support of her arguments, learned counsel for the appellant has relied upon the following reported judgments:-- (1) 2007 PCr.LJ 1792 (2) PLD 1985 FSC 120 (3) 1986 PCr.LJ 1794 (4) 2007 PCr.LJ 50(FSC) (5) 2005 PCr.LJ 1722 (6) PLD 1987 FSC 25 (7) 1993 PCr.LJ 1842 (8) 2010 SCMR 584.

9. Conversely, Ch. Muhammad Mustafa, learned D.P.G. appearing on behalf of the State claimed that the prosecution has fully proved its case against the appellant. He submitted that the delay in the registration of the case is fully explained as the police was not taking cognizance of the offence despite the information of the occurrence vide Rapt No.15 dated 12-2-2002. He further submitted that the medical examination of the victim namely Mst. Shahzadi was conducted by P.W-4/Lady Dr.Lubna Nasim in compliance with the orders of the Magistrate. He maintained that the allegation of `zina' against the present appellant is fully established from the statements of the complainant/ P.W.2/Mst. Hanifan Bibi and Mst. Shahzadi/P.W-3 as well as from the report of the lady Dr.Lubna Nasim ,who appeared as P.W-4. He denied the chances of appearance of another woman instead of Mst. Shahzadi before the lady doctor/P.W.4 as well as issuance of a false report by the said P.W.4. He refuted the contention that the complainant had a motive for false implication of the present appellant. Lastly, he supported the impugned judgment and requested that the same may be upheld.

10. We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor-General Punjab at length. We have also minutely examined the oral and the documentary evidence available on the record in addition to evaluating the impugned judgment.

11. First of all, we would like to discuss the inordinate delay in the lodging of the F.I.R. The alleged occurrence took place on 7-2-2002 at about 6/7.00 p.m. whereas the F.I.R. No.213/2002 was registered in Police Station North Cantt. Lahore on 20-4-2002 i.e. after a delay of 2 months and 13 days. No doubt, the complainant reported the incident to the police on 9-2-2002 (Exh.D/74) which was registered as Rapt No.15 dated 12-2-2002 (Exh.D/80) according to Police Rules No.24.4. However, the Police suspected the information and as such, proceedings were conducted under section 157 Cr.P.C. Thereafter, the complainant/Mst. Hanifan Bibi moved an application to the Special Judicial Magistrate North Cantt. Lahore on 11-2-2002 (Exh.PC/1) in order to get her daughter/Mst. Shahzadi medically examined. The medical examination of the victim/Mst. Shahzadi was conducted by Lady Dr. Lubna Naseem/P.W.4 on 13-2-2002 and Mst. Hanifan Bibi/ complainant submitted another application to S.H.O North Cantt./Exh.PB on 11-4-2002 whereupon the present F.I.R. No.213/2002 was registered on 20-4-2002. There is no explanation as to why complainant/Mst. Hanifan Bibi submitted the second application on 11-4-2002 i.e. after a lapse of about two months, for registration of F.I.R. when her daughter namely Mst. Shehzadi was medically examined on 13-2-2002 and carbon copy of M.L.C, according to P.W.4, was delivered to the victim soon after the examination. No doubt, the complainant/P.W.2 and Mst. Shahzadi/victim (P.W.3) had tried to explain in their respective cross-examination that they got the medical report/carbon copy of M.L.C. on 20-4-2002 after a lapse of 2 months and 13 days but this contention of the complainant is totally belied not only by the P.W.4/Lady Dr. Lubna Nasim as well as from the M.L.C. itself, wherein it is clearly mentioned that Mst. Shahzadi received a signed carbon copy on 13-2-2002 but also from the application of the complainant herself dated 11-4-2002 (Exh.PB) with which the medical report was attached. Even otherwise, there are dishonest improvements/additions in the second application dated 11-4-2002 i.e. Exh.P.B whereupon, the F.I.R. No. 213/2002 was registered in Police Station North Cantt. Lahore on 20-4-2002 when compared to the earlier Rapt No.15 dated 12-2-2002 (Exh.D/80). In the second complaint/Exh.PB dated 11-4-2002, the complainant/ Mst. Hanifan Bibi not only claimed to have seen Talib Hussain/accused committing "zina" with her daughter, which did not find mention in Rapt No.15 dated 12-2-2002 (Exh.DD/80) but she also added one more accused namely Ghulam Muhammad, who is father of the remaining two co-accused namely Talib Hussain and Shakir Ali in order to throw a wider net. Hence, it is established there is an inordinate delay in the registration of the case and explanation advanced by the complainant for the said delay does not appear to be cogent or plausible. In this regard, the Federal Shariat Court of Pakistan in its judgment in the case of Khan Muhammad v. The State reported as 1986 FSC-262 has held that in cases of "zina", the delay in registration of the case makes the prosecution story highly doubtful. This court in another judgment pronounced in the case of Saeed Ahmed and another v. The State reported as 2006 PCr.LJ 1311 has considered the delay of even 24 days in lodging the F.I.R. as fatal to the prosecution case. A similar view has been expressed by the Hon'ble Supreme Court of Pakistan in a judgment reported as 2010 SCMR 584 wherein it has been laid down that inordinate delay in reporting the matter to the police and recording the evidence of the witnesses by the police adversely affects the prosecution case.

12. Adverting to the ocular account of occurrence, we are of the view that as a matter of fact, no one had seen the present appellant committing "zina-bil-jabr" with the daughter of the complainant Mst. Shehazdi as the complainant/P.W.2 specifically mentioned in her first application dated 9-2-2002 whereupon Rapt No.15 dated 12-2-2002 was recorded by Police (Exh.D/80) that when she opened the door of the house, Talib Hussain/present appellant fled away from the scene of the crime and story of commission of "zina" was told to her by her daughter Mst. Shehzadi. On the contrary, Mst. Hanifan Bibi/Complainant (P.W.2) in the second complaint/Exh.PB, dated 11-4-2002 and while making her statement in the trial Court as P.W.2, deposed that she saw Talib Hussain committing "zina-bil-jabr" with her daughter/ Mst. Shehzadi, who was raising hue and cry. The version of the complainant is that when Talib Hussain/ present appellant was committing "zina-bil-jabr" with Mst. Shehzadi, his elder brother namely Shakir Ali/acquitted accused had bolted the door from the outside. The complainant/Mst. Hanifan Bibi (P.W.2) during her cross-examination admitted that Shakir Ali/accused ran away after unbolting the door from the outer side on seeing her. In this connection, it is significant to mention that learned trial Court in para 28 of impugned judgment dated 10-11-2011 has disbelieved the involvement of Shakir Ali, who is real brother of present appellant/Talib Hussain, in the commission of the offence. The said co-accused/Shakir Ali has been acquitted by the learned trial Court vide judgment dated 10-11-2011. Meaning thereby that no one had bolted/locked the door of the house from the outer side wherein the occurrence took place. Similarly, Mst. Shehzadi/P.W.3 admitted that Talib Hussain/present appellant only closed the door with his foot but did not bolt the same. Furthermore, P.W.5/Ghulam Abbas, S.I, who is the I.O. of this case, admitted that at least 20/25 houses were in existence in the street (galli) where the occurrence took place. No man of ordinary prudence would try to commit "zina-bil-jabr" with a woman without locking/bolting the door of the room/house which is situated in a narrow thickly populated street. The version/story of the complainant seems to be improbable.

13. It is also in the prosecution evidence that inhabitants of mohalla gathered on the spot immediately after the occurrence on hearing the hue and cry of the complainant/P.W.2 and Mst. Shehzadi/ P.W.3 but surprisingly, none of them had appeared in the trial Court in order to support the allegations of the complainant. In these circumstances, we have come to the conclusion that there is no eye-witness of the commission of alleged "zina-bil-jabr" by Talib Hussain/present appellant with Mst. Shehzadi/P.W.3.

14. Consequently, we are left with the solitary statement of Mst. Shehzadi/P.W.3 regarding forcible commission of zina-bil-jabr with her by Talib Hussain/present appellant. No doubt, the Superior Courts in innumerable judgments have held that the statement of the victim alone is sufficient for convicting an accused for the commission of offence of "zina-bil-jabr", if the same is trustworthy and confidence inspiring. The Hon'ble Supreme Court of Pakistan in the case of Shehzad alias Shaddu and others v. The State reported as 2002 SCMR 1009 has held that the trustworthy statement of the prosecutrix needed no corroboration. Corroboration is not a rule of law but that of prudence. Acid test of veracity of the statement of the prosecutrix, no doubt, is the inherent merit of her statement. But unfortunately in this case, the solitary statement of the victim/ Mst. Shehzadi (P.W.3) is neither trustworthy or confidence inspiring nor supported by medical evidence. Mst. Shehzadi, (P.W.3), who according to her mother/Mst. Hanifan Bibi/P.W.2 was born out of latter's wedlock with one Sher Khan, who divorced the said Mst. Hanifan Bibi about 25/26 years ago prior to her marriage with Muzammil Khan. Admittedly, Mst. Shehzadi/P.W.3 is the daughter of Sher Khan/former husband of Mst. Hanifan Bibi and as such, the age of Mst. Shehzadi/ P.W.3 at the time of her medical examination on 13-2-2002 could not be less than at least 27 years, whereas Mst. Shehzadi got recorded her age as 18 years. Mst. Shehzadi also got recorded the name of her father as Muzammil Hussain not only during her medical examination but also while appearing as a witness in the trial Court as P.W.3 whereas from her I.D. Card issued by NADRA/Exh.D-119, it is revealed that the name of the father of Shahzadi/P.W.3 is Sher Khan. Hence, Mst.Shahzadi/P.W.3(victim) alone cannot be relied upon for recording conviction of the present appellant. The Federal Shariat Court of Pakistan in its judgment, reported as 1993 PCr.LJ 1842 and 2005 PCr.LJ 1722 has held that conviction based on evidence which is not convincing, trustworthy and confidence inspiring could not be sustained.

15. Insofar as the medical evidence furnished by the prosecution during the trial is concerned, the same also does not prove the commission of "zina-bil-jabr" by the convicted accused/Talib Hussain with Mst. Shahzadi beyond reasonable shadow of doubt. We cannot ignore the fact that neither any police official accompanied Mst. Shehzadi/victim to the lady doctor/ P.W.4 who conducted her Medico-legal examination nor any independent person identified her during the said examination. In this backdrop, it is shrouded in mystery that whose medical examination was conducted by P.W.4/Lady Dr. Lubna Naseem on 13-2-2002, particularly, when neither the name of the father nor the age of the victim has correctly written. It is also not believable that Lady Dr. Lubna Nasim/ P.W.4 could have handed over the Medico-legal Report to a private person i.e. complainant or the victim and that too after two months and 13 days of the medical examination. The convicted accused/present appellant had also produced the copies of the attendance register (Exh.D/84, D/85 and Exh.D/93), which makes the presence of the lady Dr. Luban Naseem/P.W.4 in the Police Dispensary Neela Gumbad Lahore on 13-2-2002 highly doubtful. The lady Dr. Lubna Naseem/P.W.4 was not able to give any opinion regarding the commission of zina prior to receipt of report of the Chemical Examiner. The Chemical Examiner, though found the vaginal swabs of Mst. Shahzadi/victim stained with semen but he did send one swab to the serologist for semen grouping vide his report Exh.PC/3 and the Serologist vide his report dated 4-10-2006/PC/4, opined that the grouping is not possible due to insufficient material. It is also an admitted fact that no sample of semen of the present appellant was either taken by the doctor or sent to the Serologist for semen grouping. Further-more, no DNA test of the present appellant was got conducted by I.O. in this case despite the application moved by the accused on 26-9-2006 (Exh.D-98) before the learned trial Court. In this connection it would be advantageous to reproduce here a part of para-No.26 of the impugned judgment of the learned trial Court dated 10-11-2011:-- "As far as the medical evidence in shape of report of Chemical Examiner Exh.PC/3 and Serologist report Exh.PC/4 are concerned, though these reports substantiate that the swabs taken from the victim were stained with semen but as the semen was not cross matched with the DNA of the accused despite the insistence of the accused, hence, these documents are not read against the accused." (Emphasis supplied) In this regard, we would like to refer to the case of Abid Javed alias Mithu v. The State reported as 1996 PCr.LJ 1161 wherein it has been held that semen found on vaginal swab was of no evidentiary value where the semen of the accused was not sent to the Serologist for semen grouping. The Federal Shariat Court of Pakistan in the case of Muhammad Shahid Sahil v. The State reported as PLD 2010 FSC 215 has laid great emphasis on the administration of DNA test in rape cases and observed as follows:-- "

10. In criminal cases the identity of the actual accused is an element of primary importance. A lot of pre-meditated improvements and tactical delays on the part of complainant party can be checked if scientific analysis is resorted to. Apart from saving time and ensuring quick disposal of cases particularly of sexual assault, such an exercise can act as a deterrent in future. Many genuine complaints remain unresolved due to stereotype method of investigation. From the point of view of a new born it is his right to be born with known paternity. The law, be it enacted or judge made, must come to the rescue of the aggrieved.

12. Article 164 of Qanun-e-Shahadat Order, 1984 has resolved the problem by enacting that in such cases that the Court may consider it appropriate it may allow to be produced any evidence that may become available because of modern devices or techniques." The Hon'ble Supreme Court of Pakistan in a recent judgment reported as 2013 SCMR-203 has declared that DNA test provides the courts a mean of identifying perpetrators with a high degree of confidence. By using DNA technology the courts were in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused.

16. There are few other aspects of this case which must be taken into consideration in order to arrive at a just conclusion. The learned trial Court did not properly appreciate the statement of the accused/present appellant, which he made on oath in disproof of the allegations/ charges made against him as provided under section 340(2), Cr.P.C. in juxtaposition with the evidence of the prosecution. The statement of the accused/ present appellant which was supported by a number of documents was more convincing as compared to the evidence of the complainant which was not only contradictory but also not worthy of any credence. Furthermore, the learned trial Court also de-exhibited all the documents which were produced by the accused while making his statement under section 340(2), Cr.P.C. while delivering the impugned judgment without giving any notice to the accused. The convicted accused/present appellant moved an application against the complainant party to S.H.O Police Station North Cantt. Lahore as well as to S.P Cantt. Lahore (Exh.D-61 and Exh.D-62) on 5-2-2002 and 16-2-2002 respectively i.e. prior to the registration of the F.I.R. by the complainant, whereupon Muhammad Ashraf, A.S.-I. Chowki Gul Gasht Town, Lahore conducted an inquiry and submitted a report on 10-3-2002 (Exh.D-66) wherein it is clearly mentioned that the real dispute between the parties is regarding vacation of the house in possession of Mst. Hanifan Bibi as a tenant and there is no substance in the allegation of Mst. Hanifan Bibi as she did not get her daughter medically examined. It is pertinent to mention here that the said report was compiled by a police official on 10-3-2002 whereas the victim/Mst. Shahzadi allegedly got herself medically examined on 13-2-2002. The convicted accused/present appellant has also proved his enmity with Ghulam Rasool Stamp Vendor and the relationship of the said Ghulam Rasool with Mst. Hanifan Bibi/complainant, therefore, the chances of false implication of the present appellant by the complainant cannot be ruled out. Hence, it is held that the learned trial Court misread the evidence available on the record, which has resulted in miscarriage of justice and an erroneous judgment.

17. It is also worth-consideration that the learned trial Court disbelieved the evidence of the complainant to the extent of the presence and participation of the two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad but has convicted the present appellant on the same set of evidence which is not permissible under the law. The learned trial Court also did not convict the present appellant/Talib Hussain as well as the remaining two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad for the alleged commission of offences falling within the mischief of sections 380 and 448 P.P.C., meaning thereby, that the whole occurrence as narrated by the complainant in the F.I.R. was not believed. This fact alone has created a serious dent in the veracity of the prosecution story.

18. As observed above, there are material contradictions, discrepancies and improvements in the statements of the witnesses of the prosecution which has made the case of the prosecution highly doubtful. Needless to mention here, that it is axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervaiz v. The State (1995 SCMR-1345) that for giving the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.

19. For the foregoing reasons, we are of the considered view that the prosecution could not prove the charges against the present appellant beyond reasonable shadow of doubt and the learned trial Court erred in law while recording the conviction and awarding sentence to the present appellant vide judgment dated 10-11-2011 and as such, the same cannot be maintained. Resultantly, the instant appeal is allowed and the impugned judgment dated 10-11-2011 is set aside and the present appellant is acquitted of the charges. He shall be released forthwith, if not required in any other case. These are the reasons of our short order dated 12-11-2013. HBT/41/FSC Appeal allowed.