2022 PLP 121 (YLRN)

ABDUL MAALIK GADDI, J.

This appeal has been preferred against a Judgment dated 26.01.2019, passed by the learned XIth Additional District and Sessions Judge Karachi West, in Sessions Case No.1901/2016, [re. The State v. Muhammad Asif] in Crime No.444/2016 registered under sections 376/34, P.P.C. at Police Station Surjani Town, Karachi. In terms of the said judgment, the appellant was convicted and sentenced as follows: "

15. The accused Muhammad Asif son of Muhammad Yameen is convicted under section 265-H(ii) Cr.P.C. for offence punishable under section 376, P.P.C. for the period of 10 years with R.I. and also fine for Rs.2,00,000/ - (Rupees Two Lacs only), in case of default to pay the fine he shall suffer further R.I. for one year. Accused is also extended benefit of Under Section 382-B, Cr.P.C. Accused Muhammad Asif son of Muhammad Yameen is produced by the Jail Authority. He is remanded back to Jail with direction to the Superintendent of Jail to receive accused Muhammad Asif son of Muhammad Yameen to serve out his sentences as awarded above. Let the copy of Judgment be supplied to accused free of cost under section 371, Cr.P.C."

2. The brief facts of the prosecution case, as narrated in the FIR by Complainant Muhammad Aslam in his verbatim are as under:-- "I am residing at the above given address and works as labour. On 15.10.2016 my wife and I, were on our duty, my three children were at their School whereas my elder daughter Tania aged about 16 years was available in the house alone. At about 12:00 Noon my wife called me and informed that our daughter Tania was taken away by Muhammad Asif by blackmailing at about 07:30 hours, I came back at home and my daughter informed me about the incident that culprit Muhammad Asif after blackmailing her to the effect that he had possessed her nacked video and he threatened to upload the same on internet. She went with him just to save her modesty. Accused brought her at empty house situated at Rozi Goth where she demanded her nacked video but he refused to return and then the said culprit forcibly turn off her clothes and committed Zina with her. His friends were available at the door of the said house and they also tried to commit Zina with her on which she made hue and cry on which Mohallah people were gathered and PW Shahbaz son of Muhammad Sharif rescued her and the culprit make their escaped good. Hence this case".

3. The case papers were supplied to appellant/accused at Ex.1. Charge against Appellant was framed on 02.03.2017 at Ex.2 for the said offences to which he pleaded not guilty and claimed to be tried vide his plea on record at Ex.2/A.

4. In order to prove the case prosecution has examined PW-01 (Complainant) Muhammad Aslam at Ex.3 who produced copy of FIR at Ex.3/A, memo of arrest of accused at Ex.3/B, memo of inspection of place of incident at Ex.3/C. PW-2 (Victim) Tania examined at Ex.4 who produced her statement under section 164, Cr.P.C. at Ex.4/A. PW-3 Mst. Zubaida examined at Ex.5. PW-4 MLO Dr. Muhammad Aijaz-ul-Haq examined at Ex.6, who produced letter of Police for potency test of accused at Ex.6/A, Medical certificate of accused at Ex.6/B. PW-5 WMLO Dr. Zakia Khursheed examined at Ex.7 she produced letter of police for medical checkup of victim Tania at Ex.7/A, final medical report No.55/2016 at Ex.7/B. PW-6 I.O. SIP Ghulam Khosa examined at Ex.8 who produced letter addressed to Judicial Magistrate for recording of statement under section 164, Cr.P.C. of victim Tania at Ex.8/A, letter to chemical Examiner Laboratory at Ex.8/B, letter addressed to SP Investigation for conducting DNA test at Ex.8/C, report of chemical examiner at Ex.8/D, letter for conducting CRO at Ex.8/E. PW-7 Muhammad Shahbaz examined at Ex.9. PW-8 Mr. Pyar Ali Khoso Civil Judge and Judicial Magistrate examined at Ex.10. PW-9 SHO Iftikhar Hussain examined as author of memo of arrest at Ex.11 who produced copy of Roznamcha entry at Ex.11/A. PW-10 ASI Sikandar Ali examined at Ex.12, he produced medical slip of Abbasi Shaheed Hospital at Ex.12/A. Learned DDPP given up PW HC Izhar Ali through statement at Ex.13. These witnesses were cross-examined by the counsel for Appellant accused, thereafter learned DDPP for the state closed the side of prosecution his statement at Ex.Ex.14.

5. The statement of appellant/accused was recorded under section 342, Cr.P.C. at Ex.15 in which he denied the allegations of the prosecution levelled against him and professed to be innocent and claimed his false implication in this case, he has produced copy of application addressed to S.H.O. Police Station Surjani Town, for registering FIR against accused Shahbaz, Muhammad Aslam, Tanveer and Riaz Ahmed at Ex.15/A. It appears from the record that an application under section 540, Cr.P.C. at Ex.16 filed by Appellant/accused which was allowed, as such the evidence of Muhammad Tufail Rajput and Muhammad Yameen were recorded at Ex.17 and 18 respectively.

6. Learned Presiding Officer of the trial Court after assessment of evidence, documents on record and after hearing the parties convicted and sentenced the Appellant/Accused as detailed in the introductory part of the Judgment.

7. Mr. Hassan Feroz, learned counsel for the Appellant has contended that the Appellant/accused is innocent and has been falsely implicated in this case by the Complainant due to previous enmity as before three days of the incident an application was given to the Police Station Surjani Town by the father of the appellant/accused namely (Muhammad Yameen) which is on record at Ex.15/A for registration of FIR against ' the Complainant, PW-Shahbaz, Tanveer and Riaz Ahmed as on 12.10.2016, these persons duly armed with T.T. Pistols harassed the Appellant and his brother Muhammad Asim and forcibly snatched Rs.15,000/- from them, as such, according to him this case is outcome of that enmity, as such, false implication of the appellant/accused in this case with due deliberation and consultation could not be ruled out as the FIR is delayed by two days for which no satisfactory explanation has been furnished; That victim Tania admitted that she was in contact with Appellant and prior to the said incident Asif came there alone and victim Tania also admitted that before one day she saw the nude video from Asif, but was not discussed the same to anyone; that victim herself went alone with accused Asif by foot and she also did not make any hue and cry either on the way or at the place of incident; that Dr. Zakia Khursheed who examined the victim and found no marks of violence on the body of victim. During the course of arguments learned counsel for the Appellant has taken to me towards the evidence of Dr. Zakia Khursheed on record who stated in her evidence that sexual intercourse was happened twice about one week and also suggested for DNA but I.O. of the case did not conduct the DNA test while victim disclosed that on 15.10.2016 rape was committed with her for the first time as such according to him there is a conflict in between medical and ocular evidence hence he was of the view that in such eventuality benefit of doubt must go in favour of the appellant/accused; that no nude film has been recovered from the appellant/accused; that investigation is silent with regard to other accused who were available at the time place of incident and tried to rape the victim. In these circumstances he was also of the view that perhaps the incident has not taken place as stated in FIR that in this matter, all pieces of evidence against appellant/ accused are weak in nature including the statement of victim under section 164, Cr.P.C. which was recorded after seven days of the incident and that too was not corroborated by any independent and inspiring confidence evidence on record; that the learned trial Court has failed/ ignored to take into consideration that the alleged story emanates from the alleged nacked video of victim which has neither been recovered nor brought before the Court as to be accepted or discarded by trial Court while passing impugned Judgment; that the Judgment passed by the trial Court is against law and on facts and the trial Court also ignored all the defence pleas of the Appellant/accused and relied the evidence produced by prosecution, which was weak in nature and so also contradictory to each other, therefore, he, while relying upon the case laws reported in (1) 1983 PCr.LJ page 2203 (Shaukat Ali and 2 others v. The State), (2) 1983 PCr.LJ page 1287 (Muhammad Akram v. The State), (3) 1983 PCr.LJ page 196 (Ghulam and others v. The State) and (4) 1981 PCr.LJ page 1160 (Sultan Mehmood and others v. The State), has prayed that this appeal may be allowed and impugned Judgment may be set aside, so also, the appellant/accused may be acquitted from the charge.

8. Conversely, Ms. Amna Ansari, Addl. Prosecutor General Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the Appellant beyond the reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the Appellant by the trial Court is the result of proper appreciation of evidence brought on record, which needs no interference. Hence she prayed that this appeal may be dismissed.

9. Complainant also adopted the arguments of learned Additional Prosecutor General, Sindh.

10. I have heard the learned counsel for the parties at a considerable length and perused the evidence and documents on record with their able assistance.

11. After hearing the parties, I have come to the conclusion that prosecution has failed to prove its case against the appellant/ accused for the reasons that admittedly before three days of the alleged incident an application was moved by the appellant's father (Muhammad Yameen) to Police Station Surjani Town, which is on record at Ex.15/A against the Complainant, PWs-Shahbaz, Tanveer and Riaz Ahmed for registration of case against them as on 12.10.2016 they snatched Rs.15,000/- from the appellant/ accused by force, but the alleged present incident took place on 15.10.2016, whereas FIR was lodged on 17.10.2016, without plausibly explaining the delay in lodging the FIR. In such circumstances false implication of the appellant/accused in this case on account of such enmity could not be ruled out.

12. It is noted that the allegation against the appellant that he had naked video of the victim Tania and he was blackmailing and threatening her that he will upload the said video on internet if she will not go with him and on this reason the victim left her house with the appellant and then appellant allegedly raped her, whereas, his two companions were standing outside the door and they have also made an attempt to commit Zina with her, but the Charge against the appellant was framed without mentioning about naked video as well as about his two companions. For the sake of convenience, it would be proper and relevant to reproduce the Charge as framed against the appellant/accused in this case, which reads as under:- "02.03.2107 I Sohail Jabbar Malik, XII-Additional District and Sessions Judge, Karachi West, do hereby charge you. Muhammad Asif son of Yameen AS follows:- That on 15-10-2016 at about 1100 hours at inside vacant house near hill behind Rozi Goth, Surjani Town, Karachi, you accused committed rape of Mst. Tania daughter of Jumma Khan and thereby you have committed an offence punishable under section 376 of P.P.C., within the cognizance of this court. And I, do hereby direct that you be tried by this court on the above said charge." In my view, framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record placed before it. Every criminal Court has the responsibility to frame the Charge consistent with the legal requirement under the provisions contained in Cr.P.C. Every such Court shall pay personal attention while framing Charge. A casual, perfunctionary, haphazard manner by framing of charge will result in serious miscarriage of justice and it will deprive the accused of his valuable right to have a fair trial. It will also affect to the prosecution adversely. Such defect in Charge alone could be a ground of acquittal. Unmerited acquittal founded on the mere illegality of framing of charge will even tell upon the accountability of criminal justice delivery system, if the mere failure on the part of the Court in framing of proper Charge were to be the reasons for an acquittal, the Court alone has to bear the blame and hence, every Court shall pay more serious personal attention to framing a proper Charge, but here in this case, Charge as framed by Presiding Officer of the trial Court is totally silent in respect of material contents as stated in FIR and other material collected by I.O. When this infirmity/illegality was confronted to learned Additional Prosecutor General, Sindh for her reply, she has no satisfactory answer with her.

13. I have gone through the evidence of victim Tania who in her evidence admitted that she was in contact with the accused/appellant and prior to said incident accused/appellant came there alone. Victim Tania also admitted that before one day she saw the naked video from appellant but she did not discuss the same to anyone. It also appears from the record that victim went alone with accused/appellant without informing to her parent and she also did not make any hue and cry either on the way or from the place of incident against appellant. I have also gone through the evidence of PW-5 Dr. Zakia Khursheed on record at Ex.7. She had medically examined the victim and found no marks of violence on her body. Dr. Zakia stated in her evidence that sexual intercourse was happened twice in about one week and also suggested for DNA test but I.O. of the case though preserved blood sample for this purpose, but did not send the same, while victim disclosed that on 15.10.2016 rape was committed with her for the first time. There is conflict in between ocular version with medical evidence, which creates doubt about the case of the prosecution. I am supported with case law reported in 2007 SCMR 1812 (re: Barkat Ali v. Muhammas Asif and others), wherein it is stated: "(c)

Oral evidence to the extent of its inconsistency with medical evidence could not be accepted". During the course of argument when this contradiction/conflict was confronted to learned Additional Prosecutor General, Sindh for her reply, she has again no satisfactory answer with her. However, the learned trial Court has ignored the evidence of lady MLO from its consideration by not considering vital medical evidence in its true perspective without recourse to DNA test and the chemical report without examination of lastly wearing clothes of victim. Vaginal Swab of Mst. Tania sent for chemical examination at page No.149 of Court file reported that "Human Sperm not detected into the above mentioned Vaginal Slide Article No.01". W.M.L.O. report also shows on general examination "No mark of violence was found on any part of body". W.M.L.O. also stated history of sexual assault twice only before one week Hymen torned old and healed. These aspects of the case also create serious doubts in the prosecution case.

14. It is also noted that no naked video has been recovered from the appellant/accused and investigation is silent with regard to other accused, who were available at the time of incident and tried to rape the victim. No CDR of said mobile phone record collected by the investigating officer. The incident of 12.10.2016, which was the root cause of concoction of this case has neither been discarded in the investigation nor considered yet concealed by the prosecution and trial Court has not considered statement of appellant/accused under Section 342, Cr.P.C. In the circumstances, I am of the view, that perhaps the incident has not taken place as stated in FIR. That in this matter all pieces of evidence against appellant/ accused are weak in nature including the statement of victim under section 164, Cr.P.C., which was recorded after seven days of the incident and that too was not corroborated by any independent and inspiring confidence evidence on record, which connects the appellant in this case, but the learned trial Court has failed/ ignored to take into consideration that the alleged story emanates from the alleged naked video of victim, which has neither been recovered nor brought before the Court as to be accepted or discarded by trial Court while passing impugned Judgment.

15. It reveals from the record that PW-Shahbaz is neighbor of the Complainant and on the relevant date, he along with Owais allegedly saved Mst. Tania (victim), but Owais has not been examined in this case. It is noted that he was best evidence to corroborate the version of Shahbaz, but he was kept away from the witness box, therefore, adverse inference shall be drawn. It also appears that application dated 12.10.2016 on record at Ex.15/A was filed by appellant's father (Muhammad Yameen) against the PW-Shahbaz and in that application, he was shown as accused. In such circumstances, the evidence of PW-Shahbaz, which was also found contradictory to the facts of the case, cannot be safely relied upon for maintaining the conviction against appellant/accused. Not only this, the victim Tania in her statement under section 164, Cr.P.C. stated that she was also saved by her brother namely, Tanveer, but Tanveer has also not been examined without any explanation.

16. Admittedly, in this matter, there are number of infirmities/lacunas and contradictions which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession, but as a matter of right".

17. Keeping in view of the above, I am of the firm view that the learned trial Court has acted erroneously in the matter with misconception and misinterpretation and convicted and sentenced the appellant purely on non-appreciation and non-application of the required norms of law and that of justice and has not been properly appreciated the evidence on record. Consequently, I allow this appeal, set-aside the impugned Judgment and acquit the appellant from the above charge. He is in custody, therefore, Jail authorities are directed to release the appellant forthwith from the above case, if he is not required in any other case(s). JK/M-8/Sindh Appeal allowed.