2011 P Cr (PLP)

RAUF AHMAD SHAIKH, J.

The petitioner has assailed the vires of the order dated 22-7-2010, passed by Mr. Javed Iqbal Warraich, learned Additional Sessions Judge, Gujar Khan District Rawalpindi, whereby an application under section 265-K, Cr.P.C. moved by him in case F.I.R. No. 267 of .2009 under section 376, P.P.C. Police Station Mandra was dismissed.

2. Briefly stated the prosecution version as set forth in the application (Exh.PF) submitted by Muhammad Ashraf son of Hukam Dad alias Bostan resident of Dhok Kenai Dakhli Tharjal Khurd, Police Station Mandra (subsequently reduced into formal F.I.R.) are that the complainant was present in his house along with his wife Zubaida Bibi on 7-10-2009. In the morning of the same day, Shabhana aged 18 years and Nabeela aged 11 years daughters of his real brother Ashiq Hussain came there. Nabeela age 11 years told while weeping that on the night of 4-10-2009, she was present in the residential room along with her father Ashiq Hussain. The accused/petitioner Ashiq Hussain gave her a tablet so she slept. Her father removed her shalwar per force and also removed his shalwar. She raised alarms but her father Ashiq Hussain petitioner/accused threatened that he would kill her by making fire and committed zina bil jabr with her. She slept thereafter. In the morning her sister Shabana came and took her to her house. Her shalwar was stained with blood and Shabana enquired about this from her. Thereafter she took Nabeela to their father, who told that she was suffering from fever and warned that this should not be disclosed to any one. On 7-10-2009 Nabeela informed him about the occurrence in presence of his wife Zubaida Bibi and niece Shabbana. The accused was sent to face trial after investigation. He was charged under section 376, P.P.C.

3. So far, the prosecution has produced 7 witnesses. The petitioner submitted an application under section 265-K, Cr.P.C: seeking his acquittal on the ground that he has been roped falsely although is not involved in the commission of any offence. It was contended that the charge is baseless and there is no probability of his conviction for commission of any offence. This application was dismissed by the learned trial Court through impugned order.

4. Learned counsel for the petitioner. has contended that the prosecutrix has not supported the prosecution version and the complainant has also resiled from his previous statement so there is no probability of his conviction and as such the learned trial Court failed to exercise the jurisdiction vested in it under section 265-K, Cr.P.C. It is urged that the application under section 265-K, Cr.P.C. could not have been dismissed merely on the ground that evidence of some witnesses had been recorded rather it should have been decided on merits by evaluating the evidence already brought on record. It is contended that the prosecutrix and complainant have not supported the prosecution version so the petitioner cannot be convicted and as such was entitled to acquittal under section 265-K, Cr.P.C.

5. Learned D.P.-G. for the State has vehemently opposed the criminal revision. It is contended that the medical evidence clearly proves that the poor girl was subjected to rape and the petitioner cannot be acquitted merely because he has succeeded in winning over the prosecutrix and complainant. It is urged that both of them as.P.W.5 and P.W.7 have concealed the truth and their statements were against their' previous statements recorded during investigation and they were cross-examined with the permission of the Court.

6. The most important witness in this case was Nabeela aged 12 years, who was allegedly subjected to rape by her real father i.e. petitioner. She has categorically stated that her father never committed any immoral act with her and that she levelled the allega4on of commission of rape against him at the instigation of his enemies. She was subjected to cross-examination by the learned DDPP and also important questions were put to her by the learned trial Court but nothing could be brought on record to prove that the petitioner/accused has committed the offence as is alleged in the F.I.R. It is true that the medical evidence does prove Mst. Nabeela was subjected to rape but the medical evidence does not lead to the person responsible for this offence and by no stretch of imagination connect the petitioner with the same. The medical evidence may be used merely for the corroborative purpose and cannot be made basis by itself for recording conviction under section 376, P.P.C. and awarding sentence in absence of the ocular account. Both the prosecutrix and the complainant have resiled from their previous statements collected during investigation and have not supported the allegation of prosecution in the witness box so the contention of the accused/petitioner that there is no probability of his being convicted of any offence cannot be repelled. The application under section 265-K, Cr.P.C. can be accepted and accused can be acquitted at any stage of the case as is clear even from the plain reading of the provisions of section 265-K, Cr.P.C. So recording of evidence of 7 witnesses was not sufficient ground to disallow the same. The learned trial Court erred in dismissing said application and failed to exercise the jurisdiction vested in it.

7. For the reasons supra, this criminal revision is accepted. Consequently the application under section 265-K, Cr.P.C. moved by the petitioner stands accepted and he is accordingly acquitted. The copy of this order along with original record be transmitted to the learned trial Court immediately. N.H.Q./A-44/L Revision Petition allowed.