2018 PLP 56 (YLRN)

OMAR SIAL, J.

This appeal has been preferred against a judgment dated 22-4-2014 passed. by the learned Additional Sessions Judge, Gambat. In terms of the said judgment the Appellant Was convicted and sentenced to R.I. for ten years and a fine of Rs.30,000 (or suffer S.I. of six months more in default).

2. Brief facts of the prosecution case are that 20-8-2011 at about 11:00 p.m. the complainant Ms. Alima Matti lodged a-report at the P.S. Sobhodero complaining about an incident that had occurred on either 24.7.2011 and 25.7.2011 at an undisclosed time. She narrated in her report that a month ago she married a man named Sher Muhammad and started living, with him. I he Appellant was their neighbor and they had visiting terms with him. On 24.7.2011 after having had dinner, she was at home with her husband and some others when the Appellant came to the house with fruit. She and the other members present in the house had the fruit and became unconscious. When she regained her senses she found that she was in an unknown place and that the Appellant along with Dil Murad. Ali Nawaz. Ali Muhammad, Arbelo and Sikander were standing- in the room. For five days, all the forenamed persons kept her in different places but only the Appellant raped her. On the fifth day of captivity she was taken to a civil court in Ranipur by the Appellant. He threatened her not to make any statement against him. The learned civil judge then sent her to the Darul Aman. On 10-8-2011 her father Loung Bhatti came to the Darul Aman and took her with him. On 19-8-2011 she along with her father went to the court of the learned Sessions Judge from where she obtained an order for the lodging of an FIR the FIR was registered against all the forenamed accused under sections 365-B, 376-1, 343. 147 and 148 P.P.C.

3. In order to prove its case the prosecution examined eight witnesses. PW-1 Dr. Azizan Memon was the doctor who examined the victim. PW-2 Zafarullah was the investigating officer of the case. PW-3 Ariz Mohammad was a witness to the memo of site inspection. PW-6 Alima. Bhatti was the complainant. PW-7 (wrongly numbered as PW-3) Lounge Khan was the father of the victim. PW-8 (wrongly numbered as PW-4) Syed Irshad All Khan was the police officer who registered the FIR.

4. The accused recorded their section 342, Cr.P.C. statements on a date that is not readable from the record. They pleaded their innocence and claimed that they had been falsely. involved in this case due to enmity. 5 The learned trial court passed a judgment on 25-4-2012 in terms of which all the other accused except the Appellant who was held liable only for an offence under section 376(i). P.P.C.

6. On 31-1-2014 this Court set aside the conviction and sentence awarded to the Appellant and remanded back the case to the trial court with the directions that the learned magistrate who had recorded the section 164, Cr.P.C. statement of the complainant be examined.

7. On 25-3-2014 the learned Magistrate Muhammad Murad was examined as the prosecution ninth witness.

8. The section 342 ,Cr.P.C. statement of the Appellant was recorded again on 28-3-2014 in which he again pleaded his innocence.

9. The impugned judgment was passed on 22-4-2014 with the trial court maintaining its earlier decision. Hence this appeal. 10. 1 have heard the learned counsel for the Appellant as well as the learned APG and have also examined the record with the assistance. The complainant and her counsel remained absent despite notice. My observations are as follows.

1. The medical evidence in the case is not of much help. PW-1 Dr. Azizan examined the victim on 20-8-2011 whereas the incident is said to have occurred. on 24-7-2011 and 25-7-2011. As expected, because of nearly a month's delay in the examination the medical evidence did to reveal any thing fruitful for the prosecution. The doctor's conclusion that the victim was not a virgin was also not of much use as she admittedly was a married lady. Presence of semen in the vagina too was of not much use in the absence of the necessary forensic tests.

2. PW-1 Dr. Azizan in her cross-examination stated that the victim had come to her for examination on 20-8-2011 but during her cross examination she first stated that the victim came on 19-8-2011 and then corrected herself to say that the police letter was issued to the victim on 19-8-2011 but that she had come for examination on 20-8-2011. Perhaps an innocent mistake although the certificate she issued also clearly shows the date and time of arrival of the victim as 19-8-201 1 at 7:00 p.m. and the date of examination as 20-8-20.11. To further contradict the doctor, PW-2 Zafarullah stated that he had issued the letter to the victim on 20-8-2011. Even the provisional certificate was issued after a delay of six days of the examination without any reason forthcoming from the doctor regarding the delay. One would understand if the issuance of the final certificate was delayed as the vaginal swabs had to be sent for testing however the provisional certificate being delayed for six days makes little sense. While observing that when the victim came to her there were no skins 01 violence on her body; that she was alert and well co-operative; that she had. no hesitation in getting herself examined; that her uterus and vagina were normal and had no signs of violence; that the victim had perhaps had sexual intercourse with her husband-, she still went on to conclude that the "victim is not a virgin (already married) but rape o has been committed on her. A completely arbitrary and baseless conclusion not supported by her findings. Such was her arbitrariness that she also concluded that the victim was subjected to rape "one or two days before examination". The mere testimony of this prosecution witness created a dent in the prosecution case.

3. I have no doubt that in such cases of rape and in the absence of an meaningful forensic testing service available, especially to the underprivileged persons of our society: the sole testimony of a rape victim can be enough to convict an accused. Indeed. the Hon'ble Supreme Court has in a number of cases reiterated this principle. The condition precedent though to the acceptance of the sole testimony of a victim is that such testimony should be confidence inspiring. I have therefore minutely examined the testimony of the victim Alima Bhatti.

4. In the FIR that Alima lodged she did not specifically state that her father was also present with her and her husband that night when she says she was abducted by the Appellant and his friends. In her testimony she specifically deposed that her father was also present. This addition in the account was perhaps made with the thought that an additional witness would strengthen her case. Alima: by moving an application herself, prayed that her husband Ali Sher Bhatti be dropped as a witness in trial.

5. Alima appeared before the learned Family Judge, Sobhodero at Ranipur on 29-7-2011 where she recorded .a statement stating therein that she feared for her life from her husband Sher Mohammad Bhatti who had declared her "kari" and that she should be sent to the Darul Aman. The learned judge ordered that she be sent to the Darul Aman. On the same date, she also filed a suit for dissolution of her marriage with Sher Mohammad Bhatti being Family Suit No. 32/2011 before the learned Family Judge, Sobhodero at Ranipur. When asked about these filings in her cross examination, Alima owned up the filings but said that she had clone so because the accused had threatened her of dire consequences. The reasoning would have made sense if her case was that the accused took her away again after the statement and filing. This was not the case. She asked to be sent to the Darul Aman without even giving an indication that she feared for her life from other people as well. She appeared on her own before the learned judge and was free, from the confines of the accused and the accused held no one hostage due to which fear she might also hive justified her stance. Admittedly, after that date the accused have not been in contact with her. I am not convinced with the reason given by Alima.

6. Alima deposed that she was sent to the Darul Aman on 29-7-2011. Her father Leung Khan deposed that he had gone to the Darul Aman to pick her up about four to live days after her abduction. This contradicts Alima's version in the FIR that her father and husband came and picked her up from the Darul Aman on 10.8.2011. However. the father also went on to depose that after picking her up from the Darul Aman he brought her for a Medical examination and then proceeded to the police station to register the FIR. The medical examination of the victim was conducted on 20-8-2011 and the FIR registered the same day. Due to the social stigma connected with rape, it would not be surprising that there is a delay of twenty days in lodging the FIR. However. in the circumstances of the present case, the delay of twenty days in getting a medical examination conducted and registering the FIR creates doubt in the prosecution case. 7 PW-2 Zafarullah deposed that the victim had come to the police station on 20-8-2011 with an order-of the Justice of Peke for the registration of an FIR. She had stated in the application to the Justice of Peace that she had been "10/15 days" ago. This statement does not tally with the time of the offence otherwise given by the victim.

8. Another fact that creates doubt in the prosecution case is that the prosecution case is that the girl was abducted on 24/25-7-2011 and ten recovered from the Darul Aman on 29-7-2011. There is nothing on record to reveal that in these Five days any effort was taken by either the husband of the girl or her father or any body else to lodge a report of the occurrence.

9. On the very same set of facts and the sole testimony of Alima, the learned trial court acquitted all the accused of the other charges they faced including trespass and kidnapping but convicted the Appellant on the charge of rape.

10. The evidence led by the prosecution was not of a quality that would suffice to convict and sentence the Appellant. Accordingly he is given the benefit of doubt in accordance with well settled principles of law. Above are the reasons for my short order dated 19-5-2017 in terms of which I allowed the appeal, acquitted the Appellant of the charge and ordered that he may be released if not required in any other case. JK/A-69/Sindh Appeal accepted.