2022 PLP 40 (YLRN)

SALAHUDDIN PANHWAR, J.

Through instant appeal appellant has challenged impugned judgment dated 09.11.2017 passed by Additional Sessions Judge-VIII, Karachi East in Sessions Case No. 1905/2016 (Re. The State v. Idrees Masih) whereby appellant was convicted under section 376(i), P.P.C. and sentenced to suffer R.I. for 10 (ten) years with fine of Rs. 50,000/-.

2. Precisely relevant facts are that on 30.07.2016, at about 2230 hours time, at the house of complainant/victim Mst. Goshi wife of Asrhaf Masih, accused Idrees Masih came at her house and kept her in hopes that he will arrange the government job for her and she should go with him then complainant/victim went with him on motorcycle to Aqliyat Private School, Cardre-o-Canadair High School, Gulshan-e-Madina, Sector 50-A, Korangi No. 3-1/2, Karachi where the accused Idrees Masih took her to the class room of the School, whereon, complainant/victim asked about job, accused put his hand on her mouth and forcibly got her clothes off and then forcibly committed rape with her. Thereafter, he threatened her for dire consequences, after that, accused Idrees Masih took her back to her house.

3. Copies were supplied to the accused as Ex. 01 and after a compliance of section 265-C, a charge was framed at Ex. 02 which the accused did not admit vide plea Ex. 2/A and claimed trial.

4. In support of charge, prosecution got examined the testimony of witnesses i.e. PW-1 Mst. Goshi at Ex. 03, who produced FIR at Ex. 3/A, memo of arrest at Ex. 3/B, site inspection memo at Ex. 3/C, 164 Cr.P.C. Statement at Ex. 3/D. PW-2 Amin Anwar at Ex.-4, who produced shalwar examination memo at Ex. 4/A, case property as Article-1. PW-3 Ashraf Masih at Ex.

05. PW-4 Dr. Noor Ahmed at Ex. 06, who produced police letter at Ex. 6/A, MLC bearing No. 3585/16 at Ex. 6/B. PW-5 Dr. Tasneem Akhtar at Ex. 07, who produced police letter at Ex. 7/A, MLC 7/B, chemical report at Ex. 7/C. PW-6 SIP Muhammad Ashraf at Ex-08. PW-7 SIP Faraz Ali Khan at Ex-09, who produced letter addressed to chemical examiner at Ex. 8/A, letter for recording of 164, Cr.P.C. statement at Ex. 8/B. PW-8 Asif Ali Memon, Judicial Magistrate at Ex-10.

5. I have heard the arguments of learned counsel for the respective parties and perused the record.

6. At the outset learned counsel for the appellant contends that on sole evidence of victim appellant has been convicted whereas, such statement is not corroborated by the independent witness and admittedly incident was happened in school, according to statement of victim Chowkidar Nadeem was available but he was not produced as witness by the prosecution. Further he contended that medical examination report is not establishing that appellant had committed that offence merely mentioned that intercourse was happened but this fact was not considered by the learned trial Judge that victim was married girl.

7. Learned DPG contends that there is sufficient evidence to award conviction and appellant has failed to prove that victim is easy virtue lady hence no doubt in case statement of prosecution very material and cannot be given weight.

8. Before attending the merits of the case, I find it in all fairness to first insist that a mere claim of commission of zina as well positive report thereof, alone, would never be sufficient to convict a specific person (accused) because commission of offence is a complete different thing while proof of its being committed by accused is quite different. This aspect is always required to be kept in view while exercising powers in doing Criminal Administration of Justice because word 'safe' the criminal administration of justice shall frustrate the very root of such administration whereby the prosecution is under mandatory obligation to prove the charge 'beyond reasonable doubt'.

9. In short, a positive report of commission of zina as well detection of human semen are not the conclusive proof that offence has been committed by specific person (accused) rather DNA. This has been the reason that in such like cases the requirement of DNA stood made as mandatory. Reference may well be made to the case of Salman Akram Raja v. Government of Punjab 2013 SCMR 203 wherein while reaffirming vitality of DNA test in such like cases, it was resolved as:-- "

16. In view of the above proposals, the petitioner as prayed that following points may be approved and the concerned public authorities be directed to enforce them through the course of investigation and prosecution of all rape matters in Pakistan:-- a) .... b) Administration of DNA tests and preservation of DNA evidence should be made mandatory in rape case. c) . d) . e) . Having said so, now, it would be conducive to refer Para-19 of impugned judgment which is that: "Evidence of Lady MLO Dr. Tasneem Akhtar is with regard to complainant/victim medical examination and she stated that she found the girl with sexual intercourse history during examination. She further stated that from the chemical examiner report, it appeared that human sperm was detected on trouser but not in vaginal swab. From this evidence of the lady doctor it appears that she found the lady/victim not virgo intacta but this opinion has no much weight on the ground that lady is already married lady. She stated that in chemical examiner report, human sperm was found in her trouser. This means that some evidence is reflecting in shape of chemical examiner report which cannot ignored with context to the scene disclosed by the private PWs and complainant". In absence of 'semen matching' mere presence of human sperm on trouser, I would say, alone would never be sufficient to prove charge of Zina. Reference is made to the case of Haider Ali v. State 2016 SCMR 1554 wherein it is held as:- '3. ...To start with, we have found the story advanced by the alleged victim to be hard to believe because she had alleged that as many as three persons had committed rape with her repeatedly at about 06.00 P.M. in some bushes available near a Sunday bazaar. That story was changed during the trial and it was alleged that the alleged victim had in fact been subjected to gang rape not in some bushes near a Sunday bazaar but in an under-construction house. Such change of the place of occurrence has been found by us to be irreconcilable pointing towards falsehood of the story. The alleged victim had failed to receive any support from the medical evidence inasmuh as despite an allegation that three accused persons had committed rape with her nine times over she had not received any mark of violence on any part of her body. .... The only other piece of evidence available on the record is in the shape of a positive report of 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. Further, the perusal of the record shows that no vaginal swabs were taken but human sperm was found on clothes therefore, I am not inclined to accept such approach of the learned trial Court judge because in absence of 'semen matching' mere presence of human sperm, I would say, alone would never be sufficient to prove charge of Zina. Reference is made to the case of Haider Ali v. State 2016 SCMR 1554 supra.

10. Further, medical evidence is not showing mark of violence though the victim claims to have been subjected to forcible zina/rape. The prosecution case is also silent about specific place of incident except claim of offence (rape) to have been committed inside the school. Beside independent witness Nadeem, who was Chowkidar, and was admittedly present but he was not examined by the prosecution. Withholding of such an independent witness also allows an adverse presumption to be drawn against veracity of the prosecution case, as per Article 129(g) of Qanun-e-Shahadat Order, 1984. It may also be added that though a conviction could well be recorded on sole statement of victim but only if same finds corroboration as well appear natural and confidence inspiring. Further, the manner wherein the victim accompanied with appellant on motorcycle at odd hours of the night on pretext of job in school; herself entered into school building if there was none except chowkidar as well as returned with accused also do not appear to be logical, natural and worth believing hence benefit thereof is also required to be given to appellant/accused.

11. Thus, the totality of the above discussion make me of the clear view that prosecution never succeeded in proving the charge against the appellant beyond reasonable doubts hence the appellant was/is entitled for acquittal. Accordingly, instant appeal is allowed. Impugned judgment is set-aside. Appellant shall be released forthwith, if he is not required in any other custody case. SA/I-14/Sindh Appeal allowed.