2016 P Cr (PLP)

MANZOOR AHMAD MALIK, J.

Karamat Ali (appellant) was tried by the learned Addl Sessions Judge, Faisalabad, in case FIR No.332/2008, dated 29.06.2008, offence under sections 365-B and 376, P.P.C., registered at Police Station Dijkot District Faisalabad for abducting Mst. Rakhshanda Bibi daughter of the complainant for the purpose of illicit intercourse and thereafter committing rape with her. Vide judgment dated 29.06.2010 passed by the learned Additional Sessions Judge, Faisalabad, Karamat Ali (appellant) has been convicted under section 365-B, P.P.C. and sentenced to life imprisonment with a direction to pay Rs.50,000/- (rupees fifty thousand only) as fine and in default whereof to further undergo simple imprisonment for six months. He was, however, acquitted of the charge under section 376, P.P.C. Benefit of section 382-B, Code of Criminal Procedure was also extended to him. Assailing the above conviction and sentence, Karamat Ali (appellant) has filed the appeal in hand.

2. Precisely, facts of the case, as contained in FIR (Exh.PA/1) registered on the written application (Exh.PA) moved by Naazir Hussain complainant (PW.2) are that he (complainant) was resident of Chak No.268/RB Abadi Pakki Pandori Tehsil and District Faisalabad and an agriculturist. On 02.06.2008 at about 10:00 p.m. (night) Mst Rakhshanda Bibi, aged about 14 years, virgin daughter of the complainant went outside her house in order to answer the call of nature. When she passed near the dera of Allah Louk, a car was parked in front of her and the headlights of the car were on. When Mst. Rakhshanda Bibi went at some distance, four persons armed with firearms alighted from the car who forcibly caught hold of Mst. Rakhshanda Bibi and dragged her towards the car. They also tried to bring Mst. Rakhshanda Bibi near the car while lifting her. Upon hue and cry of Mst. Rakhshanda Bibi, Muhammad Ashraf son of Sardar Muhammad and Javed son of the complainant, residents of the same village, who were coming from their dera, tried to rescue Mst. Rakhshanda Bibi but the assailants did not let the witnesses to come near them at gunpoint. The witnesses identified Karamat Ali alias Kama (appellant), a proclaimed offender in case FIR No.499/2006, registered under section 302, P.P.C. It was further alleged by the complainant that culprits had abducted the daughter of the complainant on gunpoint for the purpose of illicit intercourse and to pressurize the complainant not to pursue the above murder case and succeeded it in fleeing away.

3. Manzoor Hussain Shah S.I (PW.8) was posted at Investigation Cell of Police Station Dijkot, District Faisalabad. On 23.06.2008 investigation of this case was entrusted to him. He proceeded to the place of occurrence and inspected the spot and prepared rough site plan (Exh.PC). Muhammad Saleem S.I. (PW.4) stated that on 30.07.2008 investigation of this case was entrusted to him. He tried his level best to arrest Karamat Ali (appellant) but in vain. Thereafter the investigation of this case was entrusted to Ata Ullah S.I (PW.7) on 20.05.2009. On the same day, Naazir Hussain complainant (PW.2) appeared before him and submitted a written application on the basis whereof he recorded his supplementary statement under section 161, Code of Criminal Procedure. He also recorded the statements of Asghar and Ayub PWs. The investigation of this case was thereafter entrusted to Zulfiqar Ali ASI (PW.5) on 30.07.2009. On 03.10.2009 he constituted a raiding party and raided upon the dera of one Malik Khuda Bakhsh Nissoana. On seeing the police party Karamat Ali (appellant) succeeded in running away whereas the alleged abductee namely Mst Rakhshanda Bibi was found in a room along with her baby aged about two months. He recorded her statement under section 161, Code of Criminal Procedure and produced her before the learned Illaqa Magistrate. On 07.10.2009 he formally arrested Karamat Ali (appellant) and sent him to judicial lock up on 08.10.2009. Thereafter he got prepared the report under section 173, Code of Criminal Procedure and submitted the same in the court of competent jurisdiction.

4. The appellant was summoned by the learned Additional Sessions Judge, Faisalabad to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to him and formal charge under sections 365-B and 376, P.P.C. was framed against him on 02.02.2010 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eight witnesses in all. Mst. Rakhshanda Bibi (PW.1) stated that Karamat Ali (appellant) along with his co-accused abducted her from her house and thereafter forcibly contracted nikah with her on gunpoint. Naazir Hussain complainant (PW.2) reiterated the story of prosecution as set out in the FIR. Mushtaq Ahmad 3114/C appeared in the witness box as PW.3 and stated that he was entrusted with the proclamation (Exh.PB) four copies whereof were affixed at different places in accordance with law and submitted his report (Exh.PB/1). Mehmood Ali S.I (PW.6) recorded the FIR (Exh.PA/1) on the basis of application (Exh.PA) of the complainant. Muhammad Saleem S.I (PW.4), Zulfiqar ASI (PW.5), Ata Ullah S.I (PW.7) and Manzoor Hussain Shah (PW.8) investigated this case and while appearing in the witness box narrated the various steps taken by them during the course of investigation. Learned Assistant District Public Prosecutor gave up Muhammad Ashraf and Javed (PWs) being unnecessary vide statement dated 08.05.2010 and closed the prosecution case on 16.06.2010. Statement of the appellant was recorded under section 342, Code of Criminal Procedure on 19.06.2010 wherein he refuted all the prosecution allegations levelled against him and professed his innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Karamat Ali (appellant) replied as under:- I am innocent. I have been falsely implicated in this case. Real facts are that Mst. Rakhshanda Bibi PW.1, being sui juris Muslim lady contracted valid marriage with me through registered Nikahnama Mark-C with her free will and consent. Mst Rakhshanda Bibi also swore an affidavit Mark-B, which also supports my version to the extent of valid marriage in between me and Mst. Rakhshanda Bibi, furthermore, she filed private complaint under sections 452/506, P.P.C. titled Mst. Rakhshanda Bibi v. Talib Hussain etc. before the Area Magistrate, police station Satellite Town, Sargodha, which is Mark-A. Out of wedlock in between myself and Mst. Rakhshanda Bibi, a male issue namely Abdur Rehman was born, who is alive and in the custody of her mother. During the course of trial above stated documents Mark-A, Mark-B and Mark-C were admitted by the alleged victim of the case namely Mst. Rakhshanda Bibi. In presence of valid marriage no offence has been committed by me. False, frivolous and concocted story has been prepared by the complainant to satisfy his ego. The appellant neither appeared as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence.

5. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence, this appeal.

6. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that according to the contents of FIR, Mst. Rakhshanda Bibi (PW.1) daughter of the complainant was allegedly abducted on 02.06.2008 at 10:00 p.m. whereas the matter was reported to the Police on 23.06.2008 at 10:20 a.m. i.e. with the delay of twenty one days from its happening and in the application (Exh.PA) which became basis for registration of the FIR (Exh.PA/1) no probable explanation whatsoever was given by the complainant for this inordinate delay; that it is the case of the complainant in the FIR that the appellant was involved in the murder case of complainant s side and as such the complainant being inimical towards the appellant was an interested witness, therefore, his evidence cannot be used against the appellant without there being any independent and strong corroboration; that according to the prosecution story as set out in the FIR (Exh.PA/1) and stated by the alleged abductee namely Mst. Rakhshanda Bibi (PW.1) and Naazir Hussain complainant (PW.2) before the learned trial court that it is a case of three versions i.e. in the FIR it is the case of the complainant that his daughter had gone out of her house to answer the call of nature and in the way she was abducted by the appellant along with three others, however, while appearing before the learned trial court the complainant stated that he along with Muhammad Ashraf and Javed (PWs since given up) was sleeping in the primary school where his wife came and informed that Mst. Rakhshanda Bibi was abducted in a car and the complainant along with the said witnesses rushed towards the road and within their view the appellant alongwith his co-accused forcibly abducted Mst. Rakhshanda Bibi and took her in a car whereas the alleged abductee namely Mst. Rakhshanda Bibi while appearing before the learned trial court as PW.1 stated that she was sleeping in her house along with her mother and younger brother and the appellant along with an unknown person entered into the house after scaling over the wall and forcibly abducted her through the main gate of the house; that it is the case of complainant in the FIR that four persons including the appellant abducted Mst. Rakhshanda Bibi in a car whereas while appearing before the learned trial court the complainant (PW.2) as well as Mst. Rakhshanda Bibi (PW.1) categorically stated that the appellant along with an unknown person abducted the alleged victim; that while appearing before the learned trial the alleged victim admitted her nikhanama with the appellant, factum of filing a private complaint and making a statement; that copy of nikahnama between the appellant and the alleged abductee, copy of private complaint and copy of statement made by the alleged abductee were brought on record as Exh.DA, Mark-B and Mark-C, respectively, through the cross examination conducted upon Mst Rakhshanda Bibi (PW.1); that while appearing before the learned trial court, the complainant stated that he was informed about the occurrence by his wife, therefore, evidence of the complainant before the learned trial court was just hearsay; that wife of the complainant who allegedly informed him about the occurrence was not produced before the learned trial court and as such prosecution withheld the best available evidence; that the complainant while appearing before the learned trial court made dishonest improvements to strengthen the prosecution case, he was duly confronted with the contents of his application (Exh.PA) and the improvements were brought on record; that motive behind the occurrence was that the appellant had committed murder of complainant s side and to pressurize the complainant not to pursue the said murder case Mst. Rakhshanda Bibi (PW.1) was abducted but no detail of the said murder case were disclosed by the witnesses of prosecution; that it is case of the prosecution that the appellant was armed with a firearm at the time of occurrence but no such firearm was recovered during the course of investigation; that similarly Mst. Rakhshanda Bibi (PW.1) was allegedly abducted in a car but no car was recovered during the course of investigation; that the alleged abscondance of the appellant was not proved by the prosecution in accordance with law; that during the course of investigation another person namely Manzoor was also joined in the investigation by Ata Ullah S.I (PW.7) but the challan was submitted only against the appellant and even the learned trial court did not summon any other person except the appellant to face the trial, therefore, the prosecution has failed to point out as to who were accompanying the appellant at the time of alleged abduction of Mst. Rakhshanda Bibi (PW.1) and this circumstance also makes the prosecution case doubtful in nature; that the appellant was also charged under section 376, P.P.C. but he was acquitted of the said charge and no appeal against acquittal of the appellant from the charge under section 376, P.P.C. was preferred by the complainant or by the State, therefore, the prosecution evidence which has been disbelieved against the appellant to the extent of the charge of rape cannot be believed to maintain his conviction for the charge of abduction; that viewing from all angels the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

7. On the last date of hearing i.e. 30.04.2014 complainant of the case, present in person, stated that he was not in a position to engage a learned counsel and would be satisfied with the arguments of learned Deputy District Public Prosecutor for the State. Today again he is present in person.

8. Learned Deputy District Public Prosecutor for the State opposes this appeal on the grounds that the appellant is nominated in the FIR; that the offence alleged against the appellant is not only serious but heinous as well; that besides the complainant prosecution case is corroborated by the statement of Mst. Rakhshanda Bibi, the abductee, who is the star witness qua her abduction; that the appellant was found fully involved during the course of investigation; that no adverse inference can be drawn against the prosecution by the mere non-production of wife of the complainant as it is the quality of evidence and not its quantity, which settles the guilt or innocence of an accused person in a criminal case and even otherwise it is the prerogative of the prosecution to produce as many witnesses as it thinks appropriate; that a specific motive was set up by the prosecution in the FIR and the same was not seriously contested on behalf of the appellant, therefore, the prosecution case is also corroborated by the motive; that the FIR was registered against the appellant on 23.06.2008 whereas the appellant was arrested in this case on 07.10.2009 and abscondance of the appellant was proved through the statement of Mushtaq Ahmad 3114/C (PW.3); that the prosecution has fully proved its case against the appellant and there is no merit in this appeal.

9. I have heard learned counsel for the appellant as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.

10. Admittedly, it is a case of two versions. One set out by the prosecution in the FIR (Exh.PA/1) and brought on the record through the statements of the alleged abductee namely Mst. Rakhshanda Bibi (PW.1) and Naazir Hussain complainant (PW.2) and the second disclosed by the appellant in his statement recorded under section 342, Code of Criminal Procedure, and put to Mst Rakhshanda Bibi, the alleged abductee, during her cross-examination. In such like situation, the Court is required to first analyze the prosecution case in order to ascertain its truthfulness or otherwise. In this respect, I am guided by the judgment of the Hon ble Supreme Court of Pakistan passed in the case reported as Ashiq Hussain v. State (PLD 1994 SC 879) wherein, at page 883, the hon ble Supreme Court has been pleased to observe as under:-

9. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly. The above view of the Hon ble apex court of the country has been reiterated in another judgment reported as Amin Ali v. The State (2011 SCMR 323), therefore, following the principles settled by the Hon ble Supreme Court of Pakistan in such like situation, I will first, examine the case of the prosecution.

11. Case of the prosecution has been discussed in para 2 above. Gist of the same is that on 02.06.2008 at about 10:00 p.m. (night) Mst. Rakhshanda Bibi, daughter of the complainant went outside her house to answer the call of nature. When she went at some distance, four persons armed with firearms alighted from a car and forcibly caught hold of Mst. Rakhshanda Bibi and dragged her towards the car. Upon the hue and cry of Mst. Rakhshanda Bibi, Muhammad Ashraf and Javed (PWs since given up) who were coming from their dera, tried to rescue Mst. Rakhshanda Bibi but the culprits did not let them to come near. The witnesses identified Karamat alias Kama (appellant), a proclaimed offender in case FIR No.499/2006, registered under section 302, P.P.C.

12. This incident, wherein Mst. Rakhshanda Bibi daughter of the complainant was allegedly abducted on gunpoint by the appellant and his co-accused took place on 02.06.2008 whereas the same was reported to the Police on 23.06.2008 i.e. with the delay of twenty one days from its happening and in the application (Exh.PA) which became basis for registration of the FIR no plausible explanation was given by the complainant for this inordinate delay. While appearing before the learned trial court the complainant attempted to furnish explanation for the delay by stating that he was by searching his daughter for 10/15 days and on his failure he reported the crime to the Police but he was confronted with the contents of his application (Exh.PA) and the improvement was brought on record. Therefore, I hold that the inordinate delay of twenty one days in reporting the crime to the Police creates serious dents in the prosecution case.

13. It is the case of the complainant in the FIR that the appellant was involved in the murder case of complainant s side and as such the complainant being inimical towards the Appellant is an interested witness, therefore, his evidence cannot be used against the appellant without there being any independent and strong corroboration but no such corroboration is available in this case. Moreover, the complainant while appearing before the learned trial court made dishonest improvements to strengthen the prosecution case, he was confronted with the contents of his application (Exh.PA) and the improvements were brought on record. Following portion of his cross examination is relevant, which is reproduced hereunder:- I stated before the police in my statement that on the night of occurrence, I was present in Primary School along wih PWs Ashraf and Javed, where I had tethered my cattle, confronted with Ex.P.A, where it is not so recorded. I stated before the police in my statement that my wife came at Primary School and told me that Karamat Ali accused along with one unknown accused had forcibly abducted my daughter Mst. Rukhshanda in a car, confronted with Ex.P.A, where it is not so recorded. I stated before the police that my wife told me that the car was going on the nearby road, confronted with Ex.P.A, where it is not so recorded. I had stated to the police that we rushed towards the road and found a car, the lights of which were on, confronted with Ex.P.A where it is not so recorded. I had stated before the police that accused persons Karamat Ali along with one unknown person were dragging Mst. Rukhshanda to the car, volunteered two other accused were also sanding there, confronted with Ex.PA where it is not so recorded. I had stated before the police that the accused made Mst. Rukhshanda to sit in the car, confronted with Ex.P.A, where it is no so recorded. I had stated before the police that we tried to rescue Mst. Rukhshanda but the accused persons did not let us come near on gun point, confronted with Ex.P.A where it is not so recorded. I had stated before he police that accused persons then succeeded in fleeing away from the spot on the car, confronted with Ex.P.A, where it is not so recorded. I had stated before the police that I had been searching my daughter for about 10/15 days but when failed to get her recovered, I informed the police of the occurrence through a written application, confronted with Exh.P.A, where it is not so recorded. In the case Akhtar Ali and others v. The State (2008 SCMR 6) Hon ble Supreme Court of Pakistan at page 12, held as under: - It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar.

805. Seeking guidance from the above judgments, the testimony of the complainant is taken out of consideration.

14. According to the prosecution story as set out in the FIR and stated by the alleged abductee and the complainant before the learned trial court, the prosecution case is of three versions i.e. in the FIR it is the case of the complainant that his daughter had gone out of her house to answer the call of nature and in the way she was abducted by the appellant along with three others, however, while appearing before the learned trial court the complainant stated that he along with Muhammad Ashraf and Javed (PWs since given up) was sleeping in the primary school where his wife came and informed that Mst. Rakhshanda Bibi was abducted in a car and the complainant along with the said witnesses rushed towards the road and within their view the appellant along with his co-accused forcibly abducted Mst. Rakhshanda Bibi and took her in a car whereas the alleged abductee stated before the learned trial court that she was sleeping in her house along with her mother and younger brother and the appellant along with an unknown person entered into the house after scaling over the wall and forcibly abducted her through the main gate of the house. It is case of the complainant in the FIR that four persons including the appellant abducted Mst. Rakhshanda Bibi in a car whereas while appearing before the learned trial court the complainant (PW.2) as well as Mst. Rakhshanda Bibi (PW.1) categorically stated that the appellant along with an unknown person abducted the alleged victim. Therefore, I hold that the complainant as well as the alleged abdcutee kept on changing their versions which also makes the prosecution case doubtful in nature.

15. While appearing before the learned trial, Mst. Rakhshanda Bibi (PW.1), the alleged abductee, admitted her nikhanama with the appellant, factum of filing a private complaint and making a statement. Copy of nikahnama between the appellant and the alleged victim, copy of private complaint and copy of statement made by the alleged abdcutee were brought on record as Exh.DA, Mark-B and Mark-C respectively through the cross-examination conducted upon Mst. Rakhshanda Bibi (PW.1), therefore, it is not safe to rely on the statement of Mst. Rakhshanda Bibi.

16. That motive behind the occurrence was that the appellant was a proclaimed offender in case FIR No.499/2006, registered under section 302, P.P.C. and to pressurize the complainant not to pursue the above murder case Mst. Rakhshanda (PW.1) was abducted. The motive was not put to the appellant while examining him under section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to the accused while recording his statement under section 342, Code of Criminal Procedure, cannot be used against him for recording his conviction. Even otherwise motive is a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspires confidence, but the situation is otherwise in this case.

17. It is case of the prosecution that the appellant was armed with a firearm at the time of occurrence but no such firearm was recovered during the course of investigation. Similarly according to the alleged abductee (PW.1) and the complainant (PW.2), Mst Rakhshanda Bibi was allegedly abducted in a car but no car was recovered during the course of investigation.

18. Case against the appellant was registered on 23.06.2008 whereas the appellant was formally arrested in this case on 07.10.2009 and Mushtaq Ahmad 3114/C (PW.3) was produced by the prosecution to prove abscondance of the appellant who allegedly executed the proclamation. There is nothing on the record as to whether the non-bailable warrants of arrest were obtained against the appellant, and if so, who obtained it and who tried to execute the same. Moreover, four Investigating Officers namely Muhammad Saleem S.I (PW.4), Zulfiqar ASI (PW.5), Ata Ullah S.I (PW.7) and Manzoor Hussain Shah (PW.8) were produced by the prosecution but none of these witnesses stated that any of them had obtained the proclamation. Therefore, I hold that the prosecution failed to prove the abscondance of the appellant.

19. There is another aspect of the case. The appellant was also charged under section 376, P.P.C. but he was acquitted of the said charge and no appeal against acquittal of the appellant from charge under section 376, P.P.C. was preferred by the complainant or by the State, therefore, the prosecution evidence which has been disbelieved against the appellant to the extent of the charge of rape cannot be believed against him to maintain his conviction for the charge of abduction.

20. Now I take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure and put to the alleged abductee during her cross examination. Since the prosecution case is doubtful in nature, therefore, there is no need to discuss the defence version, which even otherwise is exculpatory in nature.

21. In view of the above, this appeal is allowed and the conviction and sentence awarded to the appellant vide judgment dated 29.06.2010 passed by the learned Additional Sessions Judge, Faisalabad, is set aside. The appellant is acquitted of the charge. He is in jail and be released forthwith if not required to be detained in any other case. HBT/K-36/L Appeal allowed.