2022 PLP 155 (YLRN)

SHEHRAM SARWAR CH. J.

Ilyas (appellant) was tried by the learned Addl. Sessions Judge, Bhakkar in case FIR No.76 dated 27.04.2018, offence under sections 376, 452, 506(ii) and 292, P.P.C., registered at Police Station Sarai Mohajir District Bhakkar. Vide judgment dated 01.11.2018 passed by the learned trial court, the appellant was convicted under section 376(1), P.P.C. and sentenced to death with a further direction to pay Rs.5,00,000/- (rupees five lakh only) as compensation under section 544-A, Cr.P.C. to the victim and in default whereof to further undergo simple imprisonment for six months. He was also convicted under section 292, P.P.C. and sentenced to rigorous imprisonment for three months. The appellant was further convicted under section 452, P.P.C. and sentenced to rigorous imprisonment for seven years along with fine of Rs.50,000/- and in default whereof to further undergo six months S.I. The appellant was also convicted under section 506(ii), P.P.C. and sentenced to two years R.I. along with fine of Rs.50,000/- and in case of non-payment of fine he shall further suffer simple imprisonment for two months. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.355 of 2018 for confirmation or otherwise of the appellant's sentence of death, as required under section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Exh.PG) registered on the application (Ex.PA) of Rashida Arif, complainant (PW.1) is that in the year 2003 she contracted marriage with Muhammad Arif and out of said wedlock-three children were born. In the year 2012/13 the husband of complainant went to Muscat and used to send maintenance allowance from abroad. Ilyas (appellant) was brother of her sister-in-law (devrani) namely Nazia and the complainant used to bring milk from her house. About six months ago, the complainant went to the house of Nazia to bring milk where Nazia was not present. Ilyas was present there who on pistol point committed rape with her and asked her that he had prepared a video film of the sexual act and he would upload it on the internet in case of her non-cooperation. Due to the said black-mailing the appellant committed rape with the complainant on multiple occasions and also extorted money from her. On 05.04.2018 at 6:00 p.m. the complainant was present alone in her house. Ilyas came and asked to come inside the room in order to fulfill his desire and demanded Rs.50,000/-, on refusal the appellant put pistol on temporal region of complainant, she raised hue and cry whereupon Aqeel Ahmad and Abdul Ghani, PWs came there and on seeing them Ilyas fled away from the spot. The complainant told all the facts to the PWs.

3. We have heard learned counsel for the parties as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.

4. Admittedly, no exact date and time of occurrence is mentioned in the FIR and in the relevant column of date and time of occurrence the word is mentioned. The distance between police station and the place of occurrence is twelve kilometers. There is a delay of about six months in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court the complainant (PW.1) did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State" (2019 SCMR 274). The main allegation against the appellant was that he committed rape with the complainant on numerous occasions and also prepared her naked video. There is no mention in the FIR as to why she remained silent for a long time and did not report the matter to the police. Moreover, no DNA test was conducted in this case and in the absence of DNA test report as to how the learned trial Court presumed that it was the appellant who committed rape with the complainant. Moreover, it has not been brought on record as to who prepared the video and produced the same before the Investigating Officer. Moreover, the following portion of cross-examination of Muhammad Usman SI (PW.6) is relevant which is reproduced as under:-- "I cannot tell the name of relative of accused who brought memory card from his house. I did not cite the name of said relative as a witness. I did not cite the names of persons who got prepared CDs P-2, P-3. Volunteer submitted that said CDS were prepared at Police Station...It was prepared by operator of front desk at Police Station. I did not cite the name of said computer operator as a witness. I did not take into possession mobile phone and SIM of accused". The mobile and SIM of appellant through which the alleged video was prepared were not produced by the prosecution during the trial. Moreover, Rashida Arif complainant, present in the Court, duly identified by her learned counsel has stated that she has no objection if the appellant is acquitted of the charges.

5. So far as the defence plea taken by the appellant in his statement, under section 342 of the Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

6. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).

7. For the foregoing reasons, the appeal in hand is allowed, convictions and sentences awarded to the appellant vide judgment dated 01.11.2018 passed by the learned Addl. Sessions Judge Bhakkar are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Ilyas, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

8. Murder Reference No.355 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Ilyas (convict) is NOT CONFIRMED. JK/I-14/L Appeal allowed.