2014 PLP 2116 (YLR)

RIZWAN ALI DODANI, J.

Through this appeal, complainant Mst. Sajida Bibi d/o Manzoor Ahmed has challenged the impugned judgment dated 12-6-2003 delivered by learned Additional Sessions Judge, Haroonabad, Camp at Fortabbas whereby accused/respondents Mukhtar Ahmed son of Muhammad Sadiq and Muhammad Amin son of Muhammad Murad were acquitted of the charge under section 10 (3) of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979.

2. Brief facts of the prosecution case are that complainant/victim P.W.2 Mst. Sajida Bibi through complaint Exh.PA stated that she was a virgin girl and on the fateful day i.e. 4/5 days prior to the registration of this case, her father had gone to Bahawalpur for the purpose of labour. She along with her mother Mst. Kareem Khatoon was present in her house. At about 8.00/9.00 p.m. she went out of her house to answer the call of nature. The accused persons namely Mukhtar Ahmed armed with .12 bore gun and Muhammad Amin empty-handed were standing outside the gate of her house. Mukhtar Ahmed accused forcibly took her in the house of Muhammad Amin accused. The accused Muhammad Amin caught hold her arms and Mukhtar Ahmed accused committed zina-bil-jbr with her after removing her shalwar. She raised alarm whereupon the P.Ws. Allah Wasaya and Kabeer Ahmad attracted to the spot and witnessed this occurrence. On seeing the P.Ws., both the accused fled away. She narrated the above said occurrence to her mother and her father was intimated about this occurrence. The accused tried to patch up the matter but was refused.

3. Investigation was carried out by P.W.5 Bashir Ahmad and report under section 173 of the Code of Criminal Procedure vas submitted before the trial Court against the aforementioned accused/respondents for trial. The learned trial Court formally charge-sheeted them on 16-10-2002 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII to which they pleaded not guilty and claimed to be tried.

4. During the trial, the prosecution in order to prove its case examined in all five prosecution witnesses, gist of which is given herein below for the sake of convenience.

5. P.W.1 is Dr. Hamid Akhtar, Medical Officer, R.H.C, Marot,who medically examined accused/respondent Mukhtar Ahmed and conducted the potency test Exh.PA. P.W.2. is Mst. Sajida Bibi complainant/appellant/victim who narrated the same story as mentioned in the crime report. P.W.3 is Kabeer Ahmed, who is witness of the occurrence. P.W.4 is Dr. Farzana Yasmeen, Medical Officer. THQ Hospital, Fortabbass, who conducted the medical examination of Mst. Sajida Bibi and issued a Medico-legal Certificate Exh.PB and report of Chemical Examiner Exh.PB/1. Bashir Ahmed, S.I. P.W.5 is Investigating Officer of this case. Mst. Sajida Bibi submitted an application (Exh.PA) before him and he drafted the F.I.R. Exh.PA/1. He inspected the place of occurrence and prepared rough site plan of place of occurrence Exh.PC.

6. The prosecution gave up Shabbir Ahmad, Inspector/F'W as being un-necessary.

7. The prosecution has closed its evidence on 21-5-2003.

8. After close of prosecution evidence the learned trial Court recorded statements of the accused under section 342, Cr.P.C. on 28-5-2003. They denied the allegations levelled against them and claimed their innocence. The accused did not opt to record their statements under section 340(2) Cr.P.C. nor did they produce any evidence in their defence.

9. The learned trial Court after completing the legal formalities of the trial, returned the verdict of the acquittal of the respondents from charge under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).

10. We have heard the learned counsel for the parties, examined the evidence and scanned the impugned judgment with their able assistance.

11. It has been observed that the F.I.R. was lodged on 15-2-2002 and admittedly after 4/5 days of the occurrence, wherein the allegation of rape was attributed to respondent No.1 Mukhtar Ahmed while respondent No.2 Muhammad Amin has been assigned with the role to have facilitated the respondent No.1 Mukhtar Ahmed in commission of that crime. The medical was conducted on 16-2-2002 i.e. after 5 days of the incident. The doctor who, conducted the medical examination of the victim Mst. Sajida Bibi opined that the alleged rape was committed within 56 hours of the occurrence, this aspect cast serious doubt on the prosecution story of alleged incident of rape inasmuch as admittedly the medical examination was conducted after 5 days i.e. 144 hours and according to the doctor the rape was committed within 56 hours, which is a material contradiction let alone the delay in lodging the report of the incident.

12. The reasons for belated F.I.R. have been attributed to the father of the prosecutrix, who was allegedly away from the town and took time to come back. The argument of learned counsel for the appellant/victim Mst. Sajida Bibi in this context was that father of the prosecutrix was in Bahawalpur at the time of incident that is why the F.I.R. could be lodged after 4/5 days of the occurrence when her father came back to the town. Conversely, it was contended by the learned counsel for the respondents that no plausible reason was shown in this regard, he vehemently submitted that Bahawalpur is situated hardly at 2/3 hours journey's distance from the town and as such his coming back to the town from Bahawalpur in 4/5 days is absolutely not justifiable, when admittedly he has immediately been informed of the alleged incident of rape. We are convinced with the arguments of the learned counsel for the respondents that there was no point to take such a considerable time of 4/5 days by the father of the appellant/victim Mst. Sajida Bibi particularly after hearing about such harsh incident. The significant aspect to mention here is that father of the victim Mst. Sajida Bibi has not been produced as a witness before the learned trial Court, which is more astonishing, in such circumstances where daughter has been subjected to zina-bil-jbr. This state of the matter creates serious ambiguity into the prosecution case when no justified reasons available on the record.

13. The further noticeable fact on record is that per statement of the victim Mst. Sajida Bibi she got no injury during the alleged incident of rape, the medical report also opined that there was no mark of violence or injury found on the person of victim Mst. Sajida Bibi. This very fact cast serious doubt in mind when the manner in which alleged offence of rape said to have been committed.

14. The testimony of P.W.3 Kabeer Ahmad, who gave ocular account in respect of the incident, in cross-examination his presence at the place of incident was made convincingly doubtful as he admittedly is resident of Chak No.312/HR, Tehsil Fortabbas, which is about three (3) K.Ms. away from the town of the victim. The explanation in this regard as given by him was that he along with Allah Wasaya (P.W not produced) used to keep their cattles in the ihatta which was located near the house of respondent No.2 Muhammad Amin where the incident of rape took place and the said ihatta is owned by a Murad Channar. He admitted in his cross-examination that two/three criminal cases are registered against him. In view of these pieces of evidence of P.W.3 Kabeer Ahmed, his presence at the time and place of the occurrence becomes very much doubtful, when admittedly he is resident of other town and no evidence has been brought to corroborate his plea of being present at the Ihatta such as the other P.W. Allah Wasaya who has not been produced as witness nor the owner of ihatta Murad Channar was produced.

15. It was contended by the learned counsel for appellant/prosecutrix that during cross-examination a suggestion was put to Kabeer Ahmed P.W.3 that instead of respondent No.1 Mukhtar Ahmed, the father of respondent Muhammad Amin in fact, has committed rape with the prosecutrix, which was although denied by the victim Mst. Sajida Bibi but the vehement emphasis of the counsel was that this very suggestion amounts to an admission of offence by the respondents. In our view, though such astonishing suggestion has been put to the witness P.W.3 by the counsel for acquitted respondents but such suggestions while cross-examination of witnesses may be in nature of admissions of some incriminating fact or guilt, but could not be construed as an admission of fact or a guilt unless proved by some independent evidence, inasmuch as these may at the most be said to be the result of an inarticulate, or inappropriate art of cross-examination and as such cannot be given that much significance.

16. That some more material facts which have been observed as being detriment to the prosecution case, that the prosecution did not bother to produce the clothes of victim Mst. Sajida Bibi she was wearing at the time of incident, which could play a major role in such like cases of rape, particularly when the same was said to have been stained with semen and blood as per the statement of victim. It was also found on record that the victim Mst. Sajida Bibi has recorded her statement before the Magistrate under section 164, Cr.P.C., but strangely Magistrate was not examined before the Court to substantiate such statement therefore, this Court has been restrained to ponder such substantive piece of evidence. Moreso, no recovery of weapon was effected from the accused persons.

17. In view of above discussion, we are of the considered view that the prosecution could not make out the case against the respondents and under this state of the matter even the sole testimony of prosecutrix cannot be believed inasmuch as it depends upon the facts and circumstances of each case and has to be assessed by the Court on the basis of the entire evidence on the record. Therefore, the respondents are extended benefit of doubt. Hence, impugned judgment of acquittal passed by the learned trial Court is upheld as does not warrant interference of this Court.

18. As a sequel of above, acquittal Criminal Appeal No.216/1 of 2003, the instant appeal is dismissed.

19. These are the reasons of our short order dated 2-5-2014. HBT/12/FSC Appeal dismissed.