2017 P Cr (PLP)

ANWAR HUSSAIN, J.

The Appellants have impugned the Judgment dated 16.12.2015, passed by the learned 1st Additional Sessions Judge, Badin, in Sessions Case No.153/2013, out of Crime No.22/2013, of Police Station: Khorwah, for offences under sections 376, 342, 506(1), 511, 509, 457, 34, P.P.C., whereby they were convicted under sections 376 read with section 34, P.P.C., to suffer Rigorous Imprisonment for ten (10) years each and to pay fine of Rs.20,000/- each and in case of default to suffer Rigorous Imprisonment of six months more. The benefit of section 382-B, Cr.P.C. was extended to the Appellants.

2. Facts of the prosecution case, as per FIR lodged on 08.08.2013 by Complainant viz. Shrimati Sama, wife of Arab Bheel, that she is household lady, resides at Village Allah Bux Mallah, Deh Malki, Taluka: Shaheed Fazal Rahu, about three months ago her husband viz. Arab and son viz. Lakho Bheel, were cultivating the lands of Landlord Allah Bux Mallah; on 05.08.2013 at night hours, Complainant along with her said husband, son and daughter-in-law, were present in their house and at 9.00 p.m. Landlord Ahmed son of Allah Bux and his brother Amb Mallah, came to their house and told the Complainant's husband and son to go and look after the watering at the agricultural land; said husband and son went over there to look after the same, but said Ahmed and Amb Mallah stayed in the house of Complainant. In the meanwhile, at 9.30 p.m. said Ahmed Mallah, forcibly dragged Complainant into the house and asked her to allow him to commit Zina with her, upon which Complainant raised cries and said Ahmed shut her mouth with towel, removed Complainant's shalwar and kurta; forcibly committed Zina/Rape with her and told the Complainant not to disclose the same to any one otherwise she would be killed. In the meantime, Complainant's daughter-in-law viz. Shrimati Gori, raised cries, upon which the said Amb Mallah, forcibly tried to commit zina/rape with said daughter-in-law and torn her clothes. On the cries of Complainant her said husband and son rushed over there; the accused persons asked them to remain calm; in the meanwhile said Accused's other real brothers viz. Gul Hassan and Mohammad, also came over there, and these two persons also asked the Complainant's party to remain calm and did not disclose the same to anyone, so out of fear the Complainant did not disclose the same to anyone; Ahmed Mallah took away the Complainant's husband with him and her husband not returned back. The other accused persons guarded the Complainant's house; asked that if the Complainant go out of house and disclosed anything to anyone she would be killed and due to fear the Complainant's party remained in their house. On 08.8.2013, the Complainant took chance and came out of her house and reached Golarchi City, where she met her brother-in-law viz. Khameeso son of Megho Bheel, and disclosed him the said incident, upon which Complainant was taken to the Press Club Golarchi, wherefrom Complainant and said brother-in-law, departed to Police Station and reported that on 05.08.2013 at 9.30 p.m. accused Ahmed son of Allah Bux, and his brother Amb Mallah, entered into the Complainant's house and Ahmed Mallah forcibly committed zina/rape with Complainant and accused Amb Mallah attempted to commit zina/rape with Complainant's daughter-in-law viz. Shrimati Gori; extended abuses; and accused Gul Hassan and Muhammad, beaten Complainant's said husband and son and accused Ahmed detained Complainant's said husband illegally at his house and confined the Complainant's party.

3. After registration of FIR, the Investigating Officer, started investigation, the Appellants after obtaining bail, joined the investigation, and after completion of usual investigation, the Challan against the Appellants was submitted before the learned Trial Court, where they were formally charged to which they did not plead guilty and claimed trial vide Exh.2 and 2-A to 2-D, respectively.

4. As such the Prosecution in order to prove charge against the Appellants examined PW-1, lady Dr. Sarwat Jabeen (Exh.3), who produced Police Letter dated 08.08.2013, for victim's medical check up, (Exh.3/ A), Provisional Medico Legal Certificate dated 12.8.2013 (Exh.3/B), Letter dated 12.8.2013, of sending cervical and vaginal swabs in sealed bottles (Exh.3/C), photocopy of Letter dated 09.08.2013, to LUMS Hyderabad for pregnancy test (Exh.3/ D), copy of Letter dated 14.09.2013, of Additional Medical Superintendent, Liaquat University Hospital, Hyderabad, for the production of victim for Ultrasound Examination and Urine Test for confirmation of pregnancy (Exh.3/F), Chemical Examiner Report dated 22.08.2013 (Exh.3/G) and Final Medico Legal Certificate (Exh.3/H), PW-2, Shrimati Sama/Victim (Exh.4), who produced FIR (Exh.4/A), P.W-3, Shrimati Gori (Exh.5), PW.4, Lakhoo (Exh.6), PW 5/Arab (Exh.7), PW-6/Kamiso (Exh.8), who produced memos of site inspection and receiving of sealed samples of swabs (Exhs.8/A and 8/B, respectively) and P.W-7, SIP Muhammad Ismail (Exh.9), who produced Letter dated 13.8.2013, for sending swabs to Chemical Examiner, received on 15.8.2013 (Exh.9-A) and Chemical Examiner Report (Exh.9/B), and the prosecution closed the side vide Statement dated 07.11.2014, (Exh.10).

5. Thereafter, the Statements under section 342, Cr.P.C. of the Appellants were recorded at Exhs.11 to 14, and the Impugned Judgment was passed.

6. Learned Counsel for Appellants argued that the Appellants are four real brothers; falsely involved in this case; the Prosecution has failed to prove the charge against the Appellants beyond reasonable doubt; there are contradictions and discrepancies in the prosecution evidence; the Appellant/ Accused Ahmed has not been medically examined as such there is no grouping test of semen or DNA test and without the same the Chemical Examiner Report is not sufficient to prove commission of alleged offence; there is no scratches or abrasions on the body of Victim/Complainant; and finally prayed that the appellants be acquitted. Relied on 2011 PCr.LJ 136, 2013 YLR 2563, 2013 PCr.LJ 1716, 2013 YLR 2600 and 2012 PCr.LJ 1903.

7. On the other hand the learned Prosecutors have argued that the impugned judgment is legal and proper as the Prosecution has proved the charge against the Appellants beyond reasonable doubt by producing confidence inspiring evidence corroborated by Medical Evidence and Chemical Examiner's Report and finally prayed that this Appeal be dismissed.

8. Heard the arguments of learned Counsel for Appellants and learned D.P.G. and A.P.G. for the State and with their assistance gone through the evidence produced by the Prosecution at the trial.

9. Perusal of evidence on record shows that ocular evidence of eye-witnesses consists upon evidence of Complainant, her daughter-in-law, husband and son. On perusal of their evidence, it transpires that there are contradictions and discrepancies in the depositions on material points in respect of alleged incident. Complainant in her Examination-in-Chief stated that at the time of alleged incident her husband and son were not present at home, when Appellants Ahmed and Amb sons of Allah Bux Mallah, came in Shahzoor Pick-up; Appellant Ahmed caught hold her and also closed her mouth with cloth and committed zina with her; the other Appellant Amb was present outside the house; the incident of zina was seen by her daughter-in-law Shrimati Gori; Complainant party was wrongfully confined at her house by Appellants; after 2 to 3 days Complainant came out of her house and lodged report; but Complainant in her cross-examination stated that at the time of incident of zina her daughter-in-law was not present in the room, but she was standing outside the room. Moreover, in the FIR the Complainant has stated that her husband and son were present at the house, when Appellants Ahmed and Amb came over there and they send them to check the water at their land; the Appellant Ahmed shut the Complainant's mouth with towel, dragged her into the house and forcibly committed zina with her; on the cries of her daughter-in-law the Appellant Amb hold her daughter-in-law's hand and tried to commit zina and torn her cloths and on the cries Complainant's husband and son came at the house. Whereas the PW-3 Shrimati Gori, daughter-in-law, deposed in her Examination-in-Chief that Appellants Ahmed and Amb, came to their house; asked her husband and father-in-law to go to their land to check the water and both went towards the land; after 30 minutes Appellants Ahmed and Amb came to their house; Appellant Ahmed forcibly committed zina with her mother-in--law/Complainant and thereafter Appellant Ahmed tried to commit zina with Shrimati Gori daughter-in-law of complainant; and this witness further deposed that she has seen the alleged incident with her eyes in the same room, but lastly in her Examination-in-Chief, she deposed that she has not seen the faces of Appellants due to night hours, and again says that she did not identify the present Accused in the Court whether they are the same, who committed the offence of zina and on the next day during night hours after the alleged incident the Complainant along with her minor child left the house to lodge FIR; in Cross this witness has deposed that her statement was recorded by Police after 2 to 3 days of lodging of FIR.

10. Complainant's husband and son PW-5 and PW-4, respectively, have given contradictory depositions as to their earlier presence at house, where the offence was committed, as the P.W-5/husband deposed in his Examination-in-Chief that on the day of incident during night hours, he and his son/PW-4, left their house for rotation of water to the land of Appellant Gul Hassan; thereafter on our way back they heard cries of Complainant and her daughter-in-law and saw the Appellants present over there; the Police did not record his statement in the case, but he appeared before the trial Court to pursue his case, whereas the P.W-4/son deposed in his Examination-in-Chief that on the day of incident he along with his said father was present in the house, only Appellant Ahmed Mallah came there; asked them to go and to check rotation of water at the land; he (PW-4) along with his father (PW-5) went over there; after 10 to 15 minutes they heard cries from their house, rushed over there; and Appellants were found present there.

11. The Prosecution has examined one Mashir/PW-6, namely Khamiso, who is the real brother of Complainant's husband PW-5 and this witness in his Examination-in-Chief, has deposed that he acted as co-Mashir of memos of site inspection and receiving of sealed samples and in his cross-examination has deposed that on the day of Site Inspection the Police picked him and other co-mashir from Golarchi City and brought them at place of vardat/incident and during inspection 10/15 people gathered over there and on 12.8.2013, he along with co-mashir and Complainant on motorcycle went to Police Station, when sealed samples were received at Police Station.

12. So far as the medical evidence in the matter is concerned it has been observed that the lady Doctor PW-1, who has examined the Victim/Complainant; has stated that she has taken vaginal swab of victim and sent the same for Chemical Examiner Report, but there is no semen grouping and cross-matching with the sperm of accused. In fact, the Appellant/ Accused Ahmed was not medically examined nor his semen sample taken, as such in absence of same, the presence of human sperm in the vaginal swab of Victim/Complainant, as per Chemical Examiner Report Exh.3/G=9-B, did not prove that human sperm in the vaginal swab was of Accused Ahmed and the commission of alleged offence by him. In this regard reference is made to the case of Haider Ali v. The State (2016 SCMR 1554), Mst. Sukhan v. The State (1985 PCr.LJ 110), Ehsan Begum v. The State (PLD 1983 FSC 204) and Abid Javed Mithu v. The State (1996 PCr.LJ 1161. FSC-DB).

13. The Hon'ble Apex Court in its judgment in the case of Saira Bibi v. Muhammad Asif (2009 SCMR 946) in Para-9, at the end has observed that:- "As far as medical evidence is concerned, it reveals about sexual intercourse and does not lead to the person who did it especially in the absence of any D.N.A. test or any grouping test of semen."

14. Moreover, admittedly the Victim/Complainant was married women and has got married son; the lady Doctor, who examined the Victim, reported that the clothes of Victim were not torn; nor there was any stain on any material or mark on the clothes; there was no mark of any scratches or abrasions on any part of Victim/Complainant's body; and Victim/Complainant was two months pregnant at the time of her examination vide Provisional and Final Medico Legal Certificates. The Police has not secured the Victim/Complainant's clothes, which were worn by her at the time alleged incident and she in her cross-examination has stated that she worn the same clothes at the time of her medical examination and she has not handed over the same to the Doctor.

15. Admittedly, there is delay of three days in lodging the FIR, and the Complainant/Victim in order to explain such delay deposed that after alleged incident i.e. on 05.08.2013, the Appellants, who were armed with Lathis and Hatchets wrongfully confined Complainant party in her house and after 02 to 03 days the Complainant came out of her house and lodged the FIR on 08.08.2013, but the Complainant in her cross-examination stated that after alleged incident she went to the father of Appellants, to inquire about her husband, whereas the daughter-in-law of Complainant deposed that accused showed revolver and confined them in her house and on next day during night hours after alleged incident the Complainant left her house for lodging FIR. Moreover, the son of Complainant stated that Appellants were empty handed.

16. In view of said contradictions the explanation for such delay is doubtful and even otherwise the Prosecution has not examined any independent witness from the locality to prove the same.

17. With reference to the cases of Abdul Haque v. The State (PLD 1996 SC 01) and Ashiq Hussain v. The State (1993 SCMR 417), it is settled principle of law of criminal administration of justice that the burden of proof the charge rests on prosecution and the guilt of an accused to be proved beyond reasonable doubt by way of un-impeachable evidence. In this matter the evidence of Complainant and her witnesses, who are the family members, did not inspire confidence as there are contradictions and discrepancies in their statements and even otherwise the statement of Complainant was not corroborated by any independent and reliable incriminatory evidence, which all creates doubt as to the truthfulness of the Prosecution's case. In this regard reference is made to the case of Ibrar Hussain v. The State (2007 SCMR 605) and Saira Bibi v. Muhammad Asif (2009 SCMR 946).

18. It is also settled principle of law that benefit of doubt always goes in favour of accused and for that purpose it is not necessary that there must always be multiple circumstances to create doubt, but a single circumstances creating a reasonable doubt as to the guilt of an accused entitles him to such benefit, not as a matter of grace and concessions, but as matter of right. In this regard reliance is made on the case of Tariq Pervez v. The State (1995 SCMR 1345) and case of Ghulam Qadir v. The State (2008 SCMR 1221).

19. In view of above, I am of the view that the Prosecution has failed to prove its case beyond reasonable doubt against the Appellants, as such conviction and sentences awarded to Appellants by way of Impugned Judgment are not sustainable in law and facts. Hence, I allow this Appeal, set aside the conviction and sentences awarded to the Appellants, who are acquitted by extending benefit of doubt from the charge. The Appellants shall be released from the jail forthwith if not required in connection with any other case. WA/A-135/Sindh Appeal allowed.