2016 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through the captioned criminal miscellaneous application under section 561-A, Cr.P.C., applicant Muhammad Zafar has impugned the order dated 19.09.2014, passed by the Court of VIII Judicial Magistrate, Hyderabad, whereby report submitted by investigation officer under 'C' class was declined and the investigation officer was directed to submit final report under section 173, Cr.P.C. against the accused persons.

2. The relevant facts spelt out from the prosecution case are that complainant Ali Murad lodged report on 19.08.2014, at 1800 hours, at Police Station Rahuki, the averments of the FIR are reproduced as under:- "He resides at above mentioned address and by profession is a labour. His daughter Mst. Aisha was married about 4/5 months ago with Sadda son of Tooh Mirjat. On 09.08.2014, in the morning, he was present in house, when his daughter Mst. Aisha came to his house and disclosed that on 08.08.2014, she was present in her house along with her father in law Tooh Mirjat and mother in law Mst. Dariya Khatoon. Zafar Punjabi who is already on visiting terms with her father in law, and on that day he was under the influence of wine and was sitting with her father in law in the house, and he also brought eatable articles. Then they eaten the meal altogether, while her mother in law served her meal separately. After taking meal Zafar Punjabi also brought Coca-Cola bottle, out of which her mother-in-law served her one glass and after having drink, she became semi-unconscious and mother in law asked her to sleep and at about 10.00 pm, she went inside the room. It is further stated that all the night Zafar Punjabi committing zina upon her and at about 6.00 am, when she regained senses, her condition was worst and within her sight Zafar Punjabi went out of the room. On such disclosure, complainant visited the house of Tooh Mirjat but it was locked and none was present in the house. Thereafter, he disclosed such facts to his son Muhammad Hassan Mirjat and others. Since the condition of his daughter was worst as such he immediately obtained letter for medical treatment from police station and admitted her in Civil Hospital, Hyderabad. He made complaint that accused Zafar Punjabi, Tooh Mirjat and Mst. Dariya Khatoon with their common intention served intoxicating substance to his daughter and Zafar Punjabi committed zina upon her, hence the instant FIR."

5. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in instant case. He further contended that allegations leveled by the victim have not been corroborated by medical report and even none has come forward to depose in favour of the prosecution case, as such the incident is un-witnessed. He further contended that only two witnesses i.e. mother in law and father in law of the victim were present in the house but both have been shown as accused. He further contended that learned Judicial Magistrate has not properly appreciated the record produced by the investigating officer while submitting the report.

6. Complainant Ali Murad and Mst. Aisha are present along with their counsel and they extended no objection if in the interest of justice instant application is granted as they have compromised and do not want to pursue the case further.

7. Learned A.P.G. candidly admitted that during the course of investigation no one had supported the incident and the alleged offence is not corroborated by the medical report and there is no probability of accused being convicted.

8. Perusal of the material available on record and consideration of the arguments advanced by learned counsel for the parties, emanate that victim Mst. Aisha is a married woman and residing with her husband. After the lodgment of FIR, during the course of investigation on same day, the victim was produced before the Woman Medical Officer, L.U.H, Hyderabad, where she was medically examined and swabs were also taken. Subsequently, the Chemical Examiner vide report dated 03.09.2014, has opined that human sperm were not detected from shalwar, cholo, vaginal swab and vaginal slide of the victim woman. Subsequently, final medical report was issued by Senior Woman Medical Officer of L.U.H, Hyderabad on 05.09.2014, which opined that in continuation of earlier provisional chemical and medical examiner report received from Karachi, as the victim is married so she is not virgo intact, however, no recent sexual assault committed on her. Moreover, the statement of victim Mst. Aisha was recorded by the VIII Judicial Magistrate, Hyderabad, under section 164, Cr.P.C., whereby she had alleged the same accusation against accused Zafar Punjabi. However, after completion of the investigations, the investigation officer submitted report under 'C' class before the Court of VIII Judicial Magistrate, Hyderabad, who discarded the said report and passed the impugned order.

9. Indeed, there is no any witness of the incident to corroborate the allegations leveled by the victim. Record further reflects that even after regaining her senses, she neither resisted the accused nor raised any hue and cry to attract the family members or neighbours for her help. Likewise, she also not raised any protest before her mother in law and father in law, but silently left her house and reached at the house of her father i.e. complainant. It is also worthwhile to mention that in the entire scenario, the husband of the victim remained absent and there is no mention about his presence during the night of the alleged incident and even in subsequent events which also forms adverse inference. Moreover, in the statement recorded under section 164, Cr.P.C., the victim had not mentioned the date of the offence. Undeniably, the chemical examiner report and final medical report do not support the allegations of zina leveled by the victim lady, as neither the swabs taken were found to be stained with semens nor she was recently sexually assaulted and even there were no marks of violence on her body. Consequently, the commission of zina upon the victim could not be proved against the accused. Admittedly, the offence under section 376(i), P.P.C., is not compoundable, but in present case, the parties have already resolved their grievances amicably and restored their cordial relations, the further trial of the case will not serve any useful purpose nor minimize their worries. In the case of Ghulam Shabbir and 2 others v. The State (2003 SCMR 663), the honuorable Supreme Court has observed that legal heirs of the deceased and the injured victims were accordingly allowed to compound the offence with the accused in order to maintain cordial relations and bury the hatchets forever. In the case of Muhammad Younas v. The State (1992 SCMR 1592), the honourable Supreme Court has observed that in a case of two versions of the occurrence both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred, if the same gets support from the admitted facts and circumstances of the case and appeals to common sense. In view of the above case.

10. Admittedly, the Magistrate is not bound to agree with the report submitted by the investigation officer under section 173, Cr.P.C. and is empowered to disagree or discard the report submitted by investigating officer, however, it is incumbent upon the Magistrate to examine all the material facts, circumstances and documents placed by the investigating Officer along with the report judiciously and there should be sufficient reasons to decline such report, but in present case the impugned order is found to be based on non-appreciation of relevant material which is against the spirit of the settled law.

11. Considering the above fact and circumstances, the instant criminal miscellaneous application stands allowed as prayed and the impugned order dated 19.09.2014, passed by learned VIII Judicial Magistrate, Hyderabad, having no legal substance is set aside and the report submitted by the investigation officer under 'C' class is approved accordingly. MH/M-65/Sindh Application allowed.