2005 P Cr (PLP)

On the other hand, learned counsel appearing for respondents, forcefully defended the impugned judgment. It was urged that the case was the outcome of malice and the prosecution story bristled with material inconsistencies and was highly improbable and therefore, no interference was called for in the impugned judgment.

20. The apex Court of the country, in number of reported cases has laid down the principles justifying interference with the judgment of acquittal passed by the lower Court. In Ghulam Sikandar and another v. Mumaraz Khan and others case PLD 1985 SC 11 at page 18 it was laid down that the acquittal carried with it two well‑accepted presumption: (i) initial, that, till found guilty, the accused was innocent; and (ii) that; again, after the trial the initial presumption of innocence stood confirmed. This was, however, subject to the condition that the acquittal' would not carry the second presumption and would lose the first one also if the trial Court was found to have disregarded material evidence/misread the evidence or received such evidence illegally. It was also held in this judgment that the Appellate. Court would not interfere with the acquittal judgment merely because on reappraisal of the evidence different conclusion could emerge. However, if the conclusion reached by the trial Court was such that no reasonable person would conceivably reach the same and there was overwhelming proof of the guilt of the accused, resulting in conclusive and irresistible conclusion to this effect, interference in appeal would be justified. The important test would be that the reasoning of the trial Court should be found to be artificial, shocking and ridiculous. Similar view was expressed in Abdul Subhan's case PLD 1994 SC

178. It was also held that in case the First Appellate Court proceeds to reappraise the evidence then it must take into account the reasons advanced by the trial Court and if it disagrees with the reasoning of the trial Court it must give its own reasons which should proceed on logical basis. In Mir Hassan's case 1999 SCMR 1418 High Court set aside the conviction of the accused recorded against him by the trial Court. The Honourable Supreme Court, after going through the judgment of the High Court, reached the conclusion that the contradictions in the statements of the witnesses, highlighted by the High Court, being insignificant, the acquittal order passed by the High Court was not justified. Also see Muhammad Iqbal's case 1994 SCMR 1928. In this authority the principles, noted hereinbefore, were recapitulated.

21. Keeping in view the principles laid down by Supreme Court, regarding interference by the Appellate Court with the acquittal judgment of the trial Court, we find that this appeal merits acceptance.

22. A critical examination of the impugned judgment showed that the same was the outcome of non‑reading and misreading of material pieces of evidence on the record. Besides, the reasoning given by the trial Judge to disbelieve the prosecution story was not merely artificial but boarded on perversity of approach. We also noticed that the minor discrepancies/variations which naturally cropped up between the testimony of the prosecution witnesses were blown out of proportion for discarding the prosecution version as a whole.

23. Taking up the legal flaw of non‑reading of the prosecution evidence in material details in the first instance. The trial Judge adversely commented on the conduct of Mst. Atia Bibi of not raising noise at the time of her being forcibly lifted from the compound of her house where she was asleep along with other members of her family. She was in fact gagged by the respondents at that time. The trial Judge conveniently omitted the assertion of Mst. Atia Bibi in this behalf. The exact words used by her during her testimony were "... I tried to raise noise when my mouth was closed with a cloth.." How could the poor girl raise hue and cry in such a situation. A doubt was sought to be created about the unfortunate incident by observation in the impugned judgment "she did not tell the story to anybody till morning in her house". The relevant portion of the statement of Muhammad Sher alias Sher Ahmad P.W.6 and Said Ahmed P.W.7 about disclosure of the occurrence by Mst. Atia Bibi to them at the spot when they reached there searching for her were glossed over. Muhammad Sher alias Sher Ahmad P. W.6 deposed in examination‑in‑chief (page 36 of the paper book) "then we brought a cot and put Mst. Atia on it and brought her to the house. Mst. Atia Bibi told us that firstly Allah Bakhsh committed Zina with her and then Muhammad Aslam accused committed Zina with her..." Almost to the same effect is the statement of Said Ahmad P.W.7 (page 42 of the paper book examination‑in‑chief part) as under:‑‑ "Sher Muhammad brought the cot and we put Atia Bibi on this cot and brought her to the house. Mst. Atia Bibi told us that firstly Allah Bakhsh committed Zina with her and then Muhammad Aslam committed Zina with her."

24. The medical evidence was shut out from consideration for wholly misconceived rather illegal reason that the lady Dr. Mubashara Anwaar who examined the victim did not enter the witness‑box to prove her Medico‑legal certificate and her non -availability at the relevant time could not be condoned as the process‑server (deputed to effect service on her) was not produced as a witness in Court. Azhar Javed, Dispenser District Headquarter Hospital, Mandi Baha‑ud‑Din entered the witness‑box as P.W.10 and on being questioned about lady Dr. Mubashara Anwaar deposed that "Dr. Mubashara Anwaar had gone abroad for the last more than one year". He stated that having worked with her during the period she remained posted as District Headquarter Hospital, Mandi Baha‑ud‑Din he could identify her handwriting and signatures. It is through him that the Medico‑legal report Exh.P.G. was proved. He deposed in clear terms that it was in the hand of Dr. Mubashara Anwaar and also bore her signatures. Thus, the legal requirement of production of secondary evidence stood duly fulfilled as postulated by Article 76 of Qanun‑e‑Shahadat Order, 1984. It is necessary to reproduce the report of the Lady Doctor about the examination of the victim in extenso as under:‑‑ (1) A young girl brought to me via police for the examination of rape. Date of examination: 23‑7‑1994 at 11‑20 p.m. Age: 14/15 years. (2) marks of violence.‑‑‑ (i) Contused, bruise area 7 c.m. x 6 c.m. around left eye. There is redness of the left eye also (ii) red bruised area 7 c.m. x 6 c.m, around the R.T. eye redness in the right eye present. (conjectival haemorrhage) (ii) contusion 18 c.m. x 2 c.m. around and in front of neck (from left to right ear lobile) Admitted for (sic) of injuries. (iv) Bite on the tip of tongue 2 c.m. x 2 c.m. area (3) Clothes Shalwar is stained with blood discharge and soaked which is sealed into parcel and sent to Chemical Examiner. (4) Examination private parts.‑‑‑ Thick black abundant hairs on vulva. Hymen. Fresh tear present 2 c.m. x 1 c.m. with blood and pus on it. External and internal vaginal swabs taken, secured and sent to the Chemical Examiner, Punjab for detection of semen. Vagina 2 F passed difficulty, blood came on p/v into R/v R/F size .... FX clear. Menstruation: Age of ... 12‑13 years M/C 4‑5 days and M.D two weeks back according to her statement. Breasts: Nipple pink colour. Final opinion will be given after the receipt of report of Chemical Examiner. K. U. O. Weapon Strangulation. This important piece of corroborative evidence qua the testimony of the victim and the eye‑witnesses was not adverted to. Significantly, defence did not raise any objection, whatsoever, about the proof of the Medico‑legal certificate (Exh.P.G.) through Azhar Javed, Dispenser while he was being examined by the prosecution.

25. Another important corroborative piece of evidence which was lost sight of by the trial Court was the report of the Chemical Examiner (Exh.P.H.) which showed that the anal swabs and the Shalwar of the victim were found to be stained with semen and blood.

26. The trial Judge also fell in error in law by advancing reasons, to disbelieve the prosecution story, which are not only fallacious but also artificial. He doubted the presence of eye‑witnesses at the spot by observing "again P. W.6 has stated that when they reached at the spot they did to hear the voice of anybody and there was no noise whatsoever coming from the spot. This showed that these P. Ws. were not attracted on spot due to some noise". He failed to consider the statement of the victim that after she had been forcibly carried to the Kinno garden by the respondents they gave a beating to her on her eyes and neck and tightened her neck with "Bochan". The poor soul was almost strangulated to death whereafter the respondents satisfied their lusts, one after the other by raping her. She became unconscious and then the respondents ran away due to the approach of the eye‑witnesses at the spot. She was taken on a cot to the house. Could a victim placed in above situation raise noise while being subjected to Zina‑bil‑Jabr. The answer obviously would be in the negative. It is unfortunate that deliberate effort was made by the trial Judge to discard the ocular testimony of both Sher Ahmad and Said Ahmad. Another reason advanced for disbelieving the prosecution story was that Muhammad Aslam respondent though was brother of wife of Allah Bakhsh respondent yet they had strained relations inter se. Therefore, it seemed "irrational" to believe that these two persons could jointly commit such a shameful act together. The learned trial Judge while making this sweeping statement failed to consider the normal human conduct in such a situation. Even two enemies could join hands to commit sexual crime together. All the above noted reasons were not only artificial and ridiculous but also shocking.

27. We also noticed that minor discrepancies/variations in the prosecution evidence were blown out of proportion by the lower Court thus vitiating the impugned judgment. In para.10 (middle part) it was observed that Mst. Atia Bibi deposed that occurrence took place at 2‑00 a.m. night whereas P.W.6 and P.W.7 stated that Kalsoom mother of the victim came to their Dera at 1‑00 a.m. night and told them that Atia Bibi is missing and they started search for her. Question arises as to whether these rustic villagers could give exact and identical time of the occurrence which took place at the dead of night. Likewise, the statement of P.W.6 that police met them at Salam Bridge at about 4‑00 p.m. whereas statement of the complainant was recorded, was doubted for the reason that the time mentioned in the statement of the complainant was 7‑30 p.m. The direction from which the eye‑witnesses approached the spot had also been subjected to criticism in the impugned judgment. It was observed that the complainant stated that her uncle came to the spot from western side whereas the rough site plan prepared by the police showed that these P. Ws. came from north‑eastern side. Could it be reasonably expected from the victim lying prostrate on the ground and being raped to give exact/correct direction of approach' of the P. Ws. to the spot?

28. The delay of 18 hours in lodging the F.I.R. has also been highlighted by the observation in the impugned judgment that case might have been got registered after the deliberation. It is well‑settled that delay, per se, in lodging the F.I.R. has never been considered to be a ground for disbelieving the prosecution story. In the present case this is particularly so because the family of the victim went into deep shock on seeing the plight of the victim. She had become unconscious due to the fiendish conduct of the respondents. She had to be carried on a cot to her house. It was night time and natural worry of the whole family was diverted to attend to her. After she gained consciousness she was carried on a motorcycle by Sher Muhammad for lodging the F.I.R. Per chance police met them near the Salam Bridge where her statement was recorded. There was no justification, whatsoever, to cast doubt qua the prosecution case by the so‑called delay in lodging the F.I.R.

29. Mst. Atia Bibi was in her adolescence age. According to the observation of the lady doctor she was 12/13 years old. She lost her virginity at the hands of the respondents in the traumatic incident.

30. The upshot of the above discussion is that the impugned judgment presents a classic case of perversity of approach adopted for, determination of the fate of the case. No other conclusion than the guilt of the respondents could have been reached in the face of overwhelming evidence on record. It is manifest clear that the trial Judge delivered a laboured judgment, for reasons best known to him, which cannot be sustained on my discoverable ground regarding administration of justice in a criminal case.

31. For what has been stated above, this appeal is accepted and after setting aside the impugned judgment Allah Bakhsh and Muhammad Aslam respondents are convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

32. We have pondered over the question of quantum of sentence to be awarded to them. It is unfortunate that this criminal appeal against acquittal filed in the year 1996 came up for hearing before us in the year 2004. All the time the aggrieved girl and her relatives must have been anxiously waiting to see that the culprits would be brought to justice However, we cannot ignore the fact either that the respondents, too, would have remained restive and anxious about their fate throughout this period, due to the pendency of this appeal. Taking into account the facts and circumstances of the case we consider that sentence of seven years' R.I. to both the respondents would meet the ends of justice. Order accordingly. Keeping in view the gravity of the offence, the plight of the victim, and the callous rather brutal conduct of the respondents we do not consider that they are entitled to the benefit of section 382‑B, Cr.P.C which is denied to them hereby. Respondents are not in attendance in Court despite issuance of bailable warrants. They shall be arrested and sent to jail to serve out their sentences.

33. The above are the reasons for the short order announced on 11‑11‑2004. H.B.T./113/FSC Appeal accepted