2013 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Azhar and Muhammad Iqbal appellants were convicted for an offence under section 376(2), P.P.C. vide judgment dated 18-2-2010 rendered by the learned Additional Sessions Judge, Pind Dadan Khan, District Jhelum in case F.I.R. No.194 dated 5-7-2009 registered at P.S. Pind Dadan Khan, District Jhelum for Offences under sections 376/34, P.P.C. and were sentenced to imprisonment for life. 'The benefit under section 382-B, Cr.P.C. was extended to them.

2. As per story, narrated by the complainant Muhammad Mansha in his written application (Exh. PE), his sister Mst. Sakina Bibi wife of Muhammad Aslam was living with him for the last about ten years. On the day of occurrence at about 3-20 p.m. his niece, namely, Rizwana daughter of Muhammad Aslam aged 10/11 years went to ease herself in the wild acacia trees. Fakhar Abbas, the son of the complainant, told that him that he heard the voice of weeping of Rizwana, whereafter he along with Fakhar Abbas and Snawar, his Chachazad reached in the deserted house of Jahangir son of Atta Muhammad and saw that Azhar appellant was committing Zina-bil -Jabr with the said Rizwana and Iqbal appellant armed with a pistol was standing nearby. On seeing them, the accused-appellants fled away.

3. The investigation was conducted, whereafter a Challan was submitted and the charge was framed against Azhar and Muhammad Iqbal appellants on 16-10-2009, to which they pleaded not guilty and claimed trial.

4. The prosecution produced as many as nine witnesses in its support. The victim, namely, Rizwana appeared as P.W.8 and reiterated the story. Muhammad Mansha/complainant appeared as P.W.5 who reiterated the statement (Exh. PE), for corroboration with the statement of Snawar (P.W.6) and Fakhar Abbas (P.W.7). Dr. Saleha Ibtisam Ali appeared as P.W.1 who examined the victim, namely, Rizwana. Dr. Muhammad Tariq Ghazi appeared as P.W.3 who examined potency of Azhar appellant. The Investigating Officer appeared as P.W.9. The accused made statements under section 342, Cr.P.C. and did not prefer to give evidence under section 340(2), Cr.P.C. in their defence.

5. The learned counsel for the appellants submits that the victim has sworn an affidavit exonerating the appellants; that even otherwise, the charge was framed against Azhar appellant of committing Zina-bil-Jabr and not against Muhammad Iqbal appellant; that no marks of violence were found on the person of victim Rizwana and she was found to have been a habitual; that statement of the victim Rizwana (P.W.8) is against Article 3 of Qanun-e-Shahadat Order, 1984, wherein it is mandatory for being a witness that she must have the capacity of understanding; that even in her statement, the victim could not explain the actual act constituting the offence of Zina-bil-Jabr against the appellants; that no DNA test was conducted on the vaginal swabs collected from the victim; that there exists mitigating circumstances for acquittal of the appellants and prays for their acquittal.

6. Conversely, the learned DDPP submits that the statement of the victim is fully corroborated with the medical evidence and is further verified by the report of Forensic Science Laboratory (Exh. PJ), wherein vaginal swabs of the victim were stained with semen; that the minimum sentence under section 376(1), P.P.C. is ten years, which must be imposed upon the appellants; that the appellants have committed the most heinous crime against the minor girl and they do not deserve any leniency and prays for dismissal of their appeal.

7. I have heard the learned counsel for the parties and perused the available record.

8. The complainant as well as the victim Rizwana have appeared before this Court and exonerated the appellants from the charges and raised no objection against their acquittal. However, since the offence under section 376, P.P.C. is not compoundable, therefore, the compromise is being rejected.

9. On merits, it has straightaway been observed that joint charge was framed on 16-10-2009 against Azhar and Muhammad Iqbal appellants though no specific allegation made against the latter for committing Zina-bil-Jabr. Therefore, the requirements of section 265-D, Cr.P.C. to his extent are missing. The record further reveals that the victim while appearing as P.W.8 was put a specific question by the trial Court, on which the trial court observed that the witness does not understand all the questions but in the interest of justice, her statement was recorded, in which she stated that Azhar appellant committed Zina bil-Jabr while Muhammad Iqbal appellant remained standing equipped with a pistol. She further stated that the complainant, etc. reached outside the deserted house, i.e. the place of occurrence but remained outside and did not come in the house, therefore, did not see the occurrence. However, she could not state the incident by narrating the necessary details. Her statement was required to be recorded in accordance with Article 3 of Qanun-e-Shahadat Order, 1984, which prescribes as under:-- "

3. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years,, extreme old age, disease, whether of body or mind, or any other cause of the same kind: Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence; Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways; Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah for witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available." Since the trial Court has already observed that the witness had not understood the questions but still her statement was recorded but interest of justice cannot be given preference to any express provisions of law based on fundamental law of administration of justice. Obviously, P.W.8 could not understand the question of vital importance by tender years. Even otherwise, a rapped victim cannot possibly forget the agony of the series of actual acts for her entire life. To my understanding, the victim lost the most important occasion to narrate the actual act necessary to convict the appellants. Importantly, the victim could not point out the appellants present in the court to be those who committed the offence against her.

10. Reverting to the medical evidence, P.W.1 stated that no marks of violence were detected on any part of the body except on the back of both hands. On examination, genitalia vulva was found healthy, no swelling or scratch mark or injuries were noted over vulva region. There were no signs of any recent injuries or tears. On examination, vagina admitted two fingers with or without pain on genital examination and no discomfort noted. The doctor has also admitted that the clothes were not stained with blood or mud or any type of fluid. He also admitted that the victim could possibly be a habitual.

11. The above noted facts seriously dent the prosecution story. Muhammad Iqbal appellant cannot be convicted for Zina-bil-Jabr as no charge of the said offence was framed against him with specific allegation. The statement of the doctor (P.W.1), if accepted as a whole, is not corroborated by the statement of P.W.8 who does not qualify the requirement of Article 3 of Qanun-e-Shahadat Order, 1984 for being unable to understand her statement. Even the medical evidence does not show any marks of violence on the private parts of the victim. DNA test of the vaginal swabs was not conducted, though they were found to have been stained with semen. For the safe administration of justice, the DNA test could have been a good corroborative piece of evidence.

12. For what has been discussed above, in my humble view, the prosecution has failed to bring home the guilt against the appellants by presenting evidence beyond shadow of doubt, therefore, I allow this appeal and acquit the appellants of the charges. Azhar appellant be released from the jail forthwith, if not required in any other case. Sureties of Muhammad Iqbal appellant shall be discharged. AG/A-76/L Appeal allowed.