2016 PLP 1554 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Haider Ali and Taj Ali petitioners and their co-accused had allegedly committed gangrape with one Mst. Sumera Bibi, aged about 14 years, on 04.02.2004 in the area of Police Station Darkhshan, Clifton Town, Karachi and after a regular trial the petitioners were convicted by the trial court for an offence under section 10(4) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 34, P.P.C. and were sentenced to death each which convictions and sentences had subsequently been upheld by the Federal Shariat Court and an appeal filed by the petitioners before that Court was dismissed. Hence, the present petition before this Court.

2. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance.

3. After hearing the learned counsel for the parties and going through the record we have observed that the FIR in this case had been lodged with a delay of one day and the complainant had stated before the trial court in so many words that the FIR had been lodged after consultations and deliberations. The solitary witness of the alleged gangrape was none other than the alleged victim herself namely Mst. Sumera Bibi who was a young girl aged about fourteen years. To start with, we have found the story advanced by the alleged victim to be hard to believe because she had alleged that as many as three persons had committed rape with her repeatedly at about 06.00 P.M. in some bushes available near a Sunday bazaar. That story was changed during the trial and it was alleged that the alleged victim had in fact been subjected to gangrape not in some bushes near a Sunday bazaar but in an under-construction house. Such change of the place of occurrence has been found by us to be irreconcilable pointing towards falsehood of the story. The alleged victim had failed to receive any support from the medical evidence inasmuch as despite an allegation that three accused persons had committed rape with her nine times over she had not received any mark of violence on any part of her body. The doctor medically examining the alleged victim had clearly found that hymen of the alleged victim was old torn. All this indicated that the real story could have been totally different from that which was being alleged. The petitioners had not been nominated in the FIR and no test identification parade had been held in this case under supervision of a Magistrate so as to positively incriminate the petitioners. All that the prosecution relied upon on the issue of identification was an alleged identification of the petitioners and their co-accused by the alleged victim before the trial court during the trial. In that context we have noticed that the alleged victim had appeared as PW3 and before recording of her statement the petitioners and their co-accused had repeatedly appeared before the trial court not only at the time of obtaining of their remands but also at the time of distribution of copies of the statements of prosecution witnesses, framing of the charge and recording of statements of PW 1 and PW

2. It is, thus, quite evident that the alleged victim had many opportunities to see the petitioners and their co-accused before they were statedly identified by her at the time of making of her statement before the trial court as PW

3. Apart from that identification of an accused person before the trial court during the trial has generally been held by this Court to be unsafe and a reference in this respect may be made to the cases of Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Muhammad Afzal alias Abdullah and another v. State and others (2009 SCMR 436), Nazir Ahmad v. Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v. The State (2011 SCMR 537) and Ghulam Shabbir Ahmed and another v. The State (2011 SCMR 683). The only other piece of evidence available on the record is in the shape of a positive report of the Chemical Examiner but we note that no DNA test had been conducted in this case nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to any of the petitioners or their co-accused.

4. For what has been discussed above we have found that the prosecution had failed to prove its case against the petitioners beyond reasonable doubt. This petition is, therefore, converted into an appeal and the same is allowed and consequently the convictions and sentences of the petitioners/appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/H-5/SC Appeal allowed.