2017 PLP 226 (YLRN)

SHAHID HAMEED DAR, J.

Abdul Mubeen-appellant, was held guilty under section 376 P.P.C. by the learned Additional Sessions Judge, Gujranwala, vide judgment dated 22.11.2011 and sentenced to rigorous imprisonment for fourteen years with fine of Rs.10,000/- or in default thereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however extended to him.

2. In his written application (Exh.PA), Muhammad Ilyas-complainant (P.W.5) has alleged that he along with his wife had gone to village Philloki; his daughter Mst.Nukhba Bibi, aged 15, was all alone in the house, situated in village Duggal, at about 10.00 a.m., on 13.9.2010, when Abdul Mubeen alias Kalo-accused (appellant) trespassed on it by scaling over its outer wall, where he forcibly violated her; he tore her clothes, broke bangles and shoved a cloth in her mouth while committing rape on her; when accused attempted to runaway from the spot, she raised hue and cry, whereon Muhammad Abbas (P.W.7), brother of the complainant, who lived in the neighbourhood, reached their along with his wife and on seeing them, the accused took to his heels; Muhammad Abbas (P.W.7) along with Nasir PW (since given up) chased him right up to his house, where his father Riasat Ali encouraged his son to runaway and he threatened them of murder etc, besides challenging them to do whatever they liked; the complainant moved an application (Exh.PA) before the S.H.O., Police Station Qila Deedar Singh on 15.9.2010, on the basis whereof formal FIR (Exh.PA/1) was drawn up by Muhammad Asghar HC (P.W.1) at 11.00 a.m., the same day.

3. After registration of the case, its investigation was entrusted to Muhammad Shafi SI (P.W.8), who inspected the place of occurrence, prepared its visual site-plan (Exh.PS) and took into possession clothes and bangles of the victim vide seizure memo Exh.PE, duly attested by Muhammad Abbas (P.W.7) and Nasir Ali PW (not produced); he arrested Abdul Mubeen (appellant) on 25.10.2010; he got medically examined Mst.Nukhba Bibi (victim) and the appellant. On completion of the investigation, challan against the accused (appellant) was submitted before the court for his trial in accordance with the law.

4. The accused-appellant on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced eight witnesses, namely, Muhammad Asghar 278/HC (P.W.1), Dr.Masood Zafar (P.W.2), Dr.Sidra Zafar (P.W.3); Muhammad Ashfaq 1391/C (P.W.4), Muhammad Ilyas-complainant (P.W.5), Mst.Nukhba Bibi-victim (P.W.6), Muhammad Abbas (P.W.7) and Muhammad Shafi SI/IO (P.W.8). Thereafter, the appellant was examined under section 342 Cr.P.C., whereby he professed his innocence in the matter and denied, all the allegations levelled against him. He did not opt to depose within the scope of section 340(2) Cr.P.C. He, however, opted to adduce evidence in defence, but did not do so. The contention adopted by him in reply to question as to why this case against him and why the PWs have deposed against him, read as under:-- "I am innocent. I have been falsely involved in this case. Civil litigation between PW Nasir and my father is pending in civil court. Due to this grudge, the complainant of this case roped me falsely in this case with the connivance of PW Nasir. I also filed an application before worthy Sessions Judge, Gujranwala for DNA test, which was not conducted with the connivance of the complainant party." The learned trial Judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him as mentioned before.

5. Learned counsel for the appellant has contended that the alleged victim (P.W.6) was a lady of easy virtue, which fact also oozed from her medico-legal report (Exh.PD); the story narrated by the prosecution witnesses is unnatural and unbelievable nor has it been supported by any independent witness; the testimonies of the witnesses are loaded with many a discrepancies, which make the entire prosecution case a hollow affair; the uncorroborated statement of Mst.Nukhba Bibi (P.W.6) may not be relied upon as it came from the mouth of a spoilt girl. Relies on Ghulam and others v. The State (1983 PCr.LJ 196), Shaukat Ali and 2 others v. The State (1983 PCr.LJ 2203) and Muhammad Akram v. The State (1983 PCr.LJ 1287).

6. Learned Deputy Prosecutor General Punjab did not look much enthusiastic in arguing the case on behalf of the prosecution and he clearly looked short of confidence while submitting that it was a case of rape committed by the accused within the mischief of section 376, P.P.C.; the appellant trespassed on the house of the complainant while committing the beastly crime, therefore, he does not deserve any leniency. Lastly submits that the prosecution case against the appellant stood proven beyond all improbabilities, therefore, his appeal may be dismissed.

7. The complainant, present in person, has submitted that his daughter Mst.Nukhba Bibi (P.W.6) stood married a couple of years after the occurrence, therefore, he was not interested in further prosecution of the appellant, rather he contended, not to have any objection, if his appeal was allowed and he was acquitted of the charge. He also tendered his sworn affidavit to the said effect as well.

8. What can be understood from the arguments raised on the side of the accused is that he seriously challenged the charge of rape against him, but he did not look bothered about the allegation of having sex with the daughter of the complainant, whom he considered a consenting partner. A streak of admission impliedly ran through the arguments of the learned counsel for the appellant that the occurrence narrated by Mst.Nukhba Bibi in her testimony as P.W.6 was a consenting-affair between her and the accused. When we look at her testimony, she rendered being the star witness (P.W.6) of the case and that of Dr.Sidra Zafar (P.W.3), more than one circumstance oozes therefrom, as to the effect that the appellant might have entered the house of the complainant as a person having probably been invited and encouraged by the alleged victim herself. The house of the complainant as per visual site-plan (Exh.PF) was situated in a populous area and it was surrounded by other residential houses on three sides and on its fourth side, a thoroughfare-street was situate. This site-plan shows that Muhammad Abbas (P.W.7) lived on the southern side of the house of the complainant with an adjoining wall in between. It cannot be readily accepted that the appellant would scale over an outer wall of the house of the complainant to enjoy sex with his daughter in a well-resided locality at 10.00 a.m., when routine village life had already begun, against her consent. The parents of Mst.Nukhba Bibi (P.W.6) had gone to village Pilloki and her brothers to the fields to fetch fodder for the animals and it was the fact which was only in the knowledge of the said girl. Being a distant resident from the house of the complainant, the aforesaid departure of the victim's parents and brothers from the house could only be known by the appellant through P.W.6, who frankly admitted in her testimony that the outer door of her house was open when accused got into it empty handed; she did not ask him the purpose of his visit nor she asked him to leave the house at once; the accused, within her view, bolted the door before committing the offence. She, however, mentioned in her testimony that she raised alarm when accused entered into the house. She categorically stated that she did not slap the accused or otherwise resisted him at the time of commission of offence. She, however, deposed about the potency-strength of the accused by stating that it was a ten-minute stint, when he fondled with her. Of her own account, Mst.Nukhba Bibi (P.W.6) exclaimed that the "accused continued commission of offence for about ten minutes". She told her age 18 years in her testimony and she did not claim that she was a married lady. Her father, Muhammad Ilyas (P.W.5) though not specifically stated, also did not show her a married person. Her paternal uncle, Muhammad Abbas (P.W.7) too gave an impression that she had not been tied by the nuptial-knot at the time of occurrence. The impression given by the above said prosecution witnesses is, that she was a virgin girl at the time of the occurrence. The medical evidence did not, however, corroborate the virginity of the star witness at the crucial hour.

9. The woman medical officer, Dr.Sidra Zafar (P.W.3) categorically stated in her testimony that the hymen of the examinee was torn and healed old; the vaginal orifice of the examinee admitted two fingers easily. While answering a question, she (P.W.3) stated that the victim bore no marks of violence anywhere on her body. She also stated that the examinee might be accustomed to the act of coitus. The above-said depositions made by her (w.m.o.) clearly revealed that Mst.Nukhba Bibi (P.W.6) enjoyed sex frequently and it is why her vagina gave entry to two fingers easily. It cannot be understood from the medical jurisprudence that a virgin female having been ravished only once would let two fingers slip into her easily, without any pain or difficulty. The medical evidence read with the testimony of the victim (P.W.6) lead to suggest that Mst.Nukhba Bibi enjoyed sex being a consenting partner, with the appellant, who did sex with her not only on that particular day, but probably on previous occasions as well, despite knowing it that he was not married to her. It cannot be gathered from the testimonies of P.W.3, P.W.5, P.W.6 and P.W.7 that the offence committed by the appellant fell within the mischief of rape.

10. It was, in all fairness; a consenting-affair as to the act of sexual intercourse, if at all it happened, in between the star witness (P.W.6) and the appellant. All bits of the prosecution case converge on a single point that she (P.W.6) probably enjoyed sex with the appellant of her free will and consent rather pleasingly, excluding all probabilities as to having been forcibly violated. The judgments relied on by the learned counsel for the appellant, Ghulam and others v. The State (1983 PCr.LJ 196), Shaukat Ali and 2 others v. The State (1983 PCr.LJ 2203) and Muhammad Akram v. The State (1983 PCr.LJ 1287), lend a sense of strength to the submissions made by him, as to appellant having committed no offence.

11. The upshot of the above discussion is that the prosecution has badly failed to prove the guilt of the appellant beyond any shadow of reasonable doubt. The impugned judgment passed by the learned trial court for the noted reasons is undone, the conviction/sentence awarded to the appellant is set aside and he shall be released from the prison forthwith, as an acquitted person, if not required in any other case. This appeal stands allowed. HBT/A-15/L Appeal allowed.