2021 PLP 808 (YLR)

MUHAMMAD SALEEM JESSAR, J.

Through instant criminal appeal, the appellant Taimoor son of Muhammad Yousuf has assailed judgment dated 09.09.2016 passed by Sessions Judge, Tando Muhammad Khan, in Sessions case No.09 of 2015, (State v. Taimoor and another), arising out of FIR No.151/2014 registered at Police Station Tando Muhammad Khan, under sections 376(1) and 34, P.P.C., whereby he convicted the appellant Taimoor for offence of rape punishable under section 376(1), P.P.C. and sentenced him to suffer RI for Ten (10) years and to pay fine of Rs.25,000/- (Rupees Twenty Five thousand only), or in case of non-payment of fine amount, to undergo SI for three months more. However, accused/appellant was extended benefit of section 382-B, P.P.C.

2. Facts of the case, in nutshell, as stated in the FIR lodged by one Mst. Soorath, are that she resides with her mother Mst. Hafeezan and her husband namely Asad Sathio had not visited for the last four months and she was pregnant with 6 months. On 03.10.2014 at about 3:00 AM (midnight) complainant Mst. Soorath and her mother were sleeping in their house. Meanwhile, on the knocking of door complainant woke up and opened the door and saw on the light of bulb that Taimoor son of Muhammad Yousif Sheedi, Munna Khaskheli and Jabbar Samoon entered in her house. Her mother also woke up. All the three accused directed the complainant Mst. Soorath to keep quite otherwise she will be murdered. The complainant remained silent due to fear and then all the accused persons put off her clothes, took her in room and forcibly committed zina-bil-jabr with her against her will one by one. Mother of complainant requested the accused not to do so but they did not listen her. After committing zina, all accused persons went away at about 6:30 A.M. The complainant due to fear remained silent and she was not feeling well due to above act. Thereafter, she came at Police Station Tando Muhammad Khan and lodged present FIR on 05.10.2014 at about 2200 hours.

3. After completing formal investigation, I.O. submitted the challan by showing all three accused as proclaimed offenders and the case after compliance of proceedings under sections 87 and 88, Cr.P.C, passing of Order under section 512, Cr.P.C. was kept on dormant file vide order dated: 16.03.2015. Thereafter, accused Jabbar Samoon was arrested and supplementary challan was submitted against him and the documents required under section 265-C, Cr.P.C. were provided to the accused vide receipt Ex.06.

4. A formal charge was framed against accused Abdul Jabbar at Ex.08, to which he pleaded not guilty and claimed to be tried vide his Plea Ex.09. Thereafter, on 21.8.2015 accused Taimoor Sheedi was arrested and such supplementary challan was submitted before learned Civil Judge and Judicial Magistrate-I, 'Tando Muhammad Khan, who after completing formalities sent up the same before trial Court, for proceedings in accordance with law. Thereafter, documents as required under section 265-C, Cr.P.C. were supplied to accused Taimoor Sheedi vide receipt Ex.10. Thereafter, amended charge was framed against accused Abdul Jabbar and Taimoor Sheedi vide Ex.11, to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.12 and Ex.13.

5. In order to prove its case, prosecution examined PW-01 Dr. Zeenat Memon at Ex.15, who produced Police Letter, Provisional Medical Certificate, Chemical Analyzer's Report and Final Medical Certificate as Ex.15/A to Ex.15/D respectively. PW-02 Complainant/Victim Mst. Soorath was examined at Ex.17, who produced FIR and photo copy of her CNIC bearing No: 41601-0632107-4 as Exs.17/A and 17/B respectively. PW-03, Mst. Hafeezan was examined at Ex.18, whereas PW-04. SIP Rehan Shah, I.O. of the case, was examined at Ex.19, who produced entry of departure and arrival back at PS regarding inspection of place of incident, memo of inspection of place of incident along with Photostat copies of CNICs of both mashirs, memo of cloths of complainant/victim Mst. Soorath, entry No.14 regarding registration of FIR as Ex.19/A to Ex.19/D respectively. Learned A.D.P.P. gave up PW Muhammad Ibrahim and PW Abdul Lateef vide his Statements Ex.14 and Ex.20 respectively. Thereafter, prosecution side was closed by learned ADPP, vide statement Ex.21.

6. Statements of accused under section 342, Cr.P.C. were recorded vide Ex.22 and Ex.23, in which they denied the prosecution allegations. Accused Taimoor Sheedi stated that he has been falsely involved in the present case by the complainant/victim Mst. Soorath, as he has dispute with one Ghulam Ali Noonari over a plot and complainant/victim Mst. Soorath has illicit relations with the said Ghulam Ali Noonari. He prayed for justice and mercy. Accused Abdul Jabbar also denied the prosecution allegations and stated that he has no knowledge about the incident and complainant/victim as well as her witness have not identified him. Both accused did not opt to appear in witness box to examine themselves on Oath under section 340(2), Cr.P.C. in disproof of charge, nor produced any witness in their defence.

7. After formulating points for determination, recording of evidence, hearing learned advocates appearing for the appellant/accused as well as the complainant and the ADPP appearing for the State, learned trial Court convicted and sentenced the appellant as stated above, hence instant criminal appeal.

8. I have heard learned counsel for the accused/appellant, so also learned D.P.G. appearing for the State, whereas complainant opted to remain absent despite issuance of notice to her.

9. In compliance of earlier order, Senior Superintendent Central Prison, Hyderabad had furnished fresh jail roll of appellant dated 22.04.2020, which showed that appellant had served out the sentence of 04 years, 07 months and 29 days excluding remission upto 20.04.2020 and had earned remission of 01 year. 11 months and 03 days; therefore unexpired portion of his sentence was 03 years 07 months and 28 days upto 20.04.2020, which was taken on record.

10. Learned counsel for appellant has completed reading of evidence of all prosecution witnesses and argued that complainant, who is alleged victim of the incident, had implicated two accused namely Taimoor Sheedi (appellant) and Munna Khaskheli; however, she did not identify third accused namely, Abdul Jabbar Samoon, therefore, she was declared hostile by prosecution. He further submitted that group matching of semen of appellant has not been done therefore, it cannot safely be said that appellant had allegedly committed rape with victim and what evidence has been brought on record, is mere words against words. He further submitted that evidence of Investigating Officer is also very important, as he too had not collected requisite material from spot. Hence, prosecution has failed to prove its case against appellant beyond any reasonable shadow of doubt.

11. Learned D.P.G appearing on behalf of State opposed the appeal and submitted that all prosecution witnesses have fully supported the case of prosecution and have implicated the appellant. He; however, could not controvert the admitted fact i.e. the complainant/alleged victim has deposed that all the accused at the time of entering into her house were empty handed, whereas her mother/alleged eye-witness has deposed that appellant was having pistol in his hand. The said pistol, if presumed to be with the appellant at the time of alleged incident, has not been recovered by police from him.

12. It seems that in the FIR complainant/alleged victim has alleged that all the three accused namely, present appellant Taimoor, co-accused Abdul Jabbar Samoon and absconding accused Munna Khaskheli committed zina with her turn by turn. However, in her evidence she exonerated accused Abdul Jabbar Samoon. During the course of recording her evidence, she deposed, "Accused Tehmoor Sheedi, present in Court is same. The accused Abdul Jabbar present in Court is not same unknown culprit, who committed the above offence at the time of incident is not present." Consequently, learned ADPP, appearing for the State, requested the trial Court to declare complainant/alleged victim as hostile. Accordingly, she was declared hostile and was cross-examined by learned ADPP wherein she deposed as under: "It is fact that I have nominated accused Abdul Jabbar Samoon in my FIR, but on arrest of accused Jabbar Samoon, I have seen him, before this Court and found the same was not the said unknown culprit. It is incorrect to suggest that the relatives of accused Jabbar Samoon, approached us, after the above incident and we patched up, with him, therefore, I deposed falsely in favour of accused Abdul Jabbar."

13. In her cross-examination, she made following admissions: "I and my mother are residing at above residence at Mushtarqa colony since last three years, which is official residence which was obtained on rent by my mother from one occupant by caste Noorani at the rate of Rs.2,000/- per month . I do not know Ghulam Ali Noorani. It is incorrect to suggest that I know Ghulam Ali Noorani. It is incorrect to suggest that I have illicit terms with said Ghulam Ali Noorani. I did not know whether said Quarter, belong to Ghulam Ali Noorani . I have changed the said clothes, which I delivered the police, later on as deposed above."

14. So far as the evidentiary value of a hostile witness is concerned, it is a settled proposition of law that the evidence of such witness is also to be considered like evidence of any other prosecution witness but evidence of such witness requires strong corroboration through other pieces of evidence. In this context, reference may be made to the case of Abdul Wahid Bhurt and another v. Ashraf and 4 others reported in 2019 YLR 487 decided by Federal Shariat Court, wherein after discussing various case-law on this point, following dictum was laid down: "

11. In the light of the above principles it is settled that the testimony of a hostile witness cannot be altogether left out of consideration. The evidence of a hostile witness has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Court to decide in what voice he speaks the truth. In such cases, the determining test is corroboration from independent source and conformity with the remaining evidence."

15. Therefore, in the light of above dictum, it is to be seen as to whether the evidence of hostile witness / complainant has been corroborated by any other independent piece of evidence. Admittedly, there are only two alleged eye-witness of the incident i.e. the complainant/alleged victim, Mst. Soorath herself and her mother Mst. Hafeezan. It seems that there are certain contradictions in the statements of these two alleged eye-witnesses. which may be narrated as under: i) According to the complainant, all the three accused were empty handed, whereas P.W. Mst. Hafeezan in his examination-in-chief deposed, "Accused Taimoor was holding Pistol.... " ii) The complainant/alleged victim in his cross-examination admitted, "1 and my mother were awakening at the time when accused knocked our door." whereas according to P.W. Mst. Hafeezan, "On 03.10.2014, I and my daughter were sleeping, and then woke up on knocking of door." iii) Besides, according to P.W. Mst.Hafeezan, "Then we inquired and reply came likewise of my son Abdul Lateef then my daughter open door." On the other hand, complainant/victim has not said a single word about making any inquiry from the person(s) who knocked the door and that voice of the person who replied was similar to that of his brother Abdul Lateef. What she simply said is, "When we heard sound of knocking our outer door, then I went and opened the door." iv) According to complainant/alleged victim, "Accused Munna Khaskheli and unknown culprit caught hold my mother, whereas Taimoor Sheedi forcibly brought me inside the room and committed Zina, with me.", whereas P.W. Mst. Hafeezan does not speak about two culprits of catching her hold, rather she deposed, "Accused Taimoor was holding Pistol, whereas accused Munna Khaskheli caught hold me and maltreated me, when accused Taimoor took away my daughter inside the room." v) According to P.W. Mst. Hafeezan, "I raised cries and requested them but accused Tehmoor committed Zina, with my daughter...". In her cross-examination also she deposed, "Nobody came on cries from neighbouring residences." On the other hand, complainant / alleged victim does not speak about raising cries. She simply deposed, "We requested them not to do such but in spite of that they committed the above offence."

16. Apart from above, it is an admitted position that P.W. Mst. Hafeezan was outside the room wherein the accused allegedly committed zina with the complainant, as such admittedly she did not witness the alleged act of committing sexual intercourse by the accused with complainant therefore she cannot be termed as an eye-witness of the alleged offence of zina.

17. From above, it is clear that even evidence of P.W. Mst. Hafeezan is also of not such quality so as to provide required strong corroboration to the evidence of hostile witness i.e. complainant / victim. Like, complainant, Mst. Hafeezan has also totally exonerated accused Abdul Jabbar Samoon, by deposing, "Co-accused sitting with accused Taimoor was not the unknown culprits, who committed the above offence and he was not seen by me, while committing the above offence."

18. Apart from above, medical evidence also does not provide required corroboration to the evidence of hostile complainant / victim. P.W. Dr. Zeenat Memo, who examined the alleged victim girl, Mst. Soorath, and issued medical report, in her evidence, inter alia, deposed as under: "I examined victim Soorath and on general examination I found normal gate, no any mark of violence any part of the body. She has already changed her clothes and taken a bath. On examination of breast no any abnormality detected. On examination of general tract perineum healthy, no section or blood present, valva no any abnormality detected." She further deposed: "....human sperm is detected in external vaginal swab and not detected in internal vaginal swab " In her cross-examination she admitted as under: "She had already taken bath, before her examination and such fact I have mentioned in my Medical Certificate . I did not found any mark of violence over the vagina of victim. I also not find mark of violence over the body of victim Mst. Soorath. It is fact that painful is written with other pen, which I have used in writing Medical Certificate "

19. Besides, the chemical report only suggests that human sperm was detected into the external vaginal swab and not detected into the internal swab. Even otherwise, only detection of human sperm does not prove that such human sperm was that of the accused unless and until DNA test is conducted or at least semen matching is undertaken which was not done in the instant case. In this context, reference may be made to the case of Haider Ali and others v. The State reported in 2016 SCMR 1554, wherein Honourable Supreme Court held as under: "The only other piece of evidence available on the record is in the shape of a positive report of the Chemical Examiner but we note that no DNA test had been conducted in this case nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to any of the petitioners or their co-accused. "

20. There is also delay of more than two days in lodging of the FIR, as the incident had allegedly taken place on 03.10.2014 at 3.00 a.m. (midnight) whereas FIR was lodged on 05.10.2015 at 10.00 p.m. No explanation has been furnished for such delay. It is not understandable that when, as per evidence of the complainant and her mother Mst. Hafeezan, the accused had gone away at 6.00 in the morning, after committing the alleged offence, then what prevented them to go to police station straight away. According to the evidence of P.W. SIP Rehan Shah, author of the FIR, the complainant had come on 05.10.2014 at police station for lodging the FIR. No plausible explanation has been furnished by the complainant as to why she waited for two days and then she went to police station and during this period she had admittedly taken bath and also changed the clothes which she was wearing at the time of alleged incident. This all create doubts regarding deliberation and consultation on the part of the complainant, thus possibility of false implication of the accused cannot be excluded from consideration. Such unexplained delay in lodging of FIR has not been appreciated by the Superior Courts. In this context, reference may be made to the case of Ayub Masih v. The State (PLD 2002 SC 1048), wherein Honourable Supreme Court held as under:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."

21. Besides, I.O. of the case namely, P.W. SIP Rehan Shah has also made some admissions which are also injurious to the prosecution case. He admitted: "There was carpet lying in the room, where incident took place. I have inspected the particular place of the room, where this incident took place. I did not find any sign of blood mark over the carpet and clothes of victim. I also not found any liquid material available at the place of incident. I have not collected the said carpet, as case property in this case I did not ask any neighbourer to act, as mashir, as the said both mashirs were available at that time, which were arranged by the complainant.. "

22. Another significant point is that in the instant case no mashir has been examined at all. One of the mashirs was P.W. Abdul Latif, who was real brother of the complainant/victim; however, learned ADPP appearing for the State vide his Statement dated 14.03.2016, gave up the said witness/mashir on the ground "as he was won over by the accused". This is also fatal to the prosecution case. This does not appeal to the mind of a prudent man that as to how a brother could be won over by the accused persons who had allegedly ruined the chastity of her sister. This smacks something fishy and in such circumstances Article 129(g) of Qanun-e-Shahadat Order, 1984, comes into play that despite availability of disinterested/material witnesses, non-examination of such witnesses in the case gives inference that in case such witnesses had been examined, they would have deposed against the prosecution as envisaged under the aforesaid Article of Qanun-e-Shahadat Order. In this context, reference may be made to the case of Bashir Ahmed alias Mannu v. The State reported in 1996 SCMR 308, wherein it was held by Honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that had they been examined, they would not have supported the prosecution version. In another case reported as Muhammad Sharif v. Tahirur Rehman and 3 others (1972 SCMR 144) it was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested witness in support of its case, therefore no implicit reliance could be placed on evidence of interested eye-witnesses. In the case reported in 1980 SCMR 708, it was observed that no witness of locality nor owner of hotel was produced in support of prosecution case nor any independent evidence to corroborate testimony of the three eye-witnesses was produced, as such, the acquittal was upheld by the Honourable Supreme Court.

23. It is a well-settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

24. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."

25. In view of aforesaid contradictions in the ocular testimony, defective medical evidence, as well as other discrepancies, legal flaws and lacunas in the prosecution case, it can safely be held that prosecution has not succeeded in proving its case against the accused/appellant beyond shadow of reasonable doubt as such the impugned judgment is liable to be set aside. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court 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."

26. The upshot of above discussion is that instant appeal is hereby allowed. Consequently, the impugned judgment dated 09.09.2016 passed by learned Sessions Judge, Tando Muhammad Khan, in Sessions Case No.09 of 2015 (State v. Taimoor and another), arising out of FIR No.151/2014 registered at Police Station Tando Muhammad Khan, under sections 376(1) and 34, P.P.C., is set aside and appellant Taimoor son of Muhammad Yousuf is acquitted of all the charges. Appellant shall be released forthwith, if his custody is no more required in any other criminal custody case. JK/T-11/Sindh Appeal allowed.