2023 P Cr. L J Note 105
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
GHULAM MUSTAFA---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 200 of 2022, decided on 20th June, 2022.
(a) Penal Code (XLV of 1860) ---
----S. 376---Rape ---Appreciation of evidence ---Benefit of doubt ---Delay of more than two
days in lodging the FIR ---Scope ---Accused was charged for forcibly committing zina with
the sister of the complainant ---Alleged occurrence took place at evening and according to the
victim she on return to her house disclosed to the complainant, the fact of her rape, thus it
was expected that the FIR should have been lodged promptly without any delay, but that had not been done so and the FIR was lodged after two days at about 08.30 p.m.---Due to said delay, the entire evidence that was necessary to have been collected by the Investigating Officer were damaged ---No explanation on the part of prosecution to justify the delay of two
days in lodging the FIR had been furnished---Main effect of registration of FIR promptly was
to bring the criminal machinery into motion so that the investigation might be carried out in right direction and to enable the Investigating Agency to collect all the necessary evidence from the place of occurrence---Case of rape/zina certain evidences were required to be collected from the body of victim, but certainly after lapse of two days all the evidences were removed by the victim by washing her body and especially the private parts ---Non -
registration of FIR promptly had damaged the entire prosecution case ---Victim mostly
reiterated her early statement and confirmed that soon after her arrival in her house, she disclosed the fact of rape committed with her by the accused, but thereafter when her parents came to house, they lodged the FIR ---Such assertion of victim showed that the FIR had been
lodged with consultation---Circumstances established that the prosecution had failed to prove the charge against the accused beyond the shadow of reasonable doubt ---Appeal against
conviction was allowed, in circumstances. [Paras. 4 & 7 of the judgment]
(b) Penal Code (XLV of 1860)---
----S. 376--- Rape---Appreciation of evidence--- Benefit of doubt ---Accused was charged for
forcibly committing zina with the sister of the complainant ---Complainant of the case
appeared as witness, who though reiterated the contents of his fard- e-bayan but perusal of his
statement revealed that the same was based on hearsay evidence, as the complainant did not witness the crime himself rather he uttered whatever was stated to him by the other witnesses and he mentioned the same in his fard- e-bayan ---Complain ant admitted in his cross -
examination that there existed a landed/property dispute in between the accused (convict)
and the maternal uncle of complainant and with the allegations of putting into fire the shop and attacking upon him, the accused had lodged FIR against him as well as against his maternal uncle ---Complainant also admitted that the accused had also filed a complaint for
registration of FIR against him with the allegations of abducting his daughter and also the
accused sent notables of the area to his house to enquire about the whereabouts of his
daughter ---Said admissions of the complainant clearly established the fact that serious
disputes were already existing in between the parties ---Accused had already lodged FIR
against complainant for attacking upon him and also putting into fire his shop and also he
had submitted a complaint in police station for registration of another FIR against the accused with the allegations of abducting of his missing daughter ---Under the said peculiar
circumstances of the case, the false implication of the accused could not be ruled out of consideration ---Circumstances established that the prosecution had failed to prove the charge
against the accused beyond the shadow of reasonable doubt ---Appeal against conviction was
allowed. [Paras. 5 & 6 of the judgment]
(c) Penal Code (XLV of 1860)---
----S.376--- Rape---Appreciation of evidence ---Benefit of doubt ---Medical evidence--- Scope -
--Accused was charged for forcibly committing zina with the sister of the complainant ---
Victim had brought on record that she was taken to hospital ---Victim though stated in her
statement that the Zina was forcible, but the Medico -Legal Certificate produced through the
Investigating Officer transpired that no signs of violence were observed upon the body of the victim and even no mark of blood or discharge on Shalwar Qameez of the victim were observed---Medico -Legal Certificate had further confirmed that due to body area wash, no
samples could be taken ---Hymen of the victim though was found ruptured, but except that
evidence there was no any solid or concrete evidence to establish that the accused was responsible for such hymen rupture of victim, when otherwise the victim was examined after two days of occurrence and till that time all the evidence were removed by the victim herself by washing her body and certainly the private parts of her body---No human sperm though was detected and non -detection of human sperm had made the statement of victim as
doubtful, who otherwise alleged that the accused committed rape with her ---Even otherwise,
the medical report suggested no injury or sign of violence on the body of the victim and even no spot of semen was found on her clothes and even no sign of sexual intercourse was observed at the time of examination--- Circumstances established that the prosecution had
miserably failed to prove the charge against the accused beyond the shadow of reasonable doubt ---Appeal against conviction was allowed. [Para. 7 of the judgment]
(d) Penal Code (XLV of 1860)---
----S. 376--- Rape---Appreciation of evidence ---Benefit of doubt ---Last seen evidence---
Scope ---Accused was charged for forcibly committing zina with the sister of the
complainant ---Prosecution had also produced two other witnesses ---Statements of both the
witnesses were in line with each other to the extent that they had seen the accused taking the victim on his vehicle ---Statement of Investigating Officer confirmed that both the witnesses
were brought by the complainant of the case himself in police station for recording their
statements ---Statements of both the witnesses showed that the same were recorded after
delay of about 25- days from the date of occurrence ---No explanation available on record to
establish that as to why the statements of both the witnesses were recorded at belated stage
and ambiguities arising in a prudent mind with regard to credibility of the said witnesses as the complainant himself managed and produced the said witnesses before the Investigating
Officer for associating them in the investigation ---Delay so occasioned in recording their
161, Cr.P.C. statements were not helpful for the case of prosecution due to sole reason that
they did not witness the crime directly ---Circumstances established that the prosecution had
failed to prove the charge against the accused beyond the shadow of reasonable doubt ---
Appeal against conviction was allowed, in circumstances. [Para. 8 of the judgment]
Shah Fahad Hussain Mengal for Appellant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 15th June, 2022.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.200 of
2022 filed by the appellant (convict) Ghulam Mustafa son of Muhammad Paryal, against the judgment dated 15th April 2022, ("the impugned judgment") passed by learned Additional Sessions Judge -II, Hub ("the trial Court"), whereby the appellant was convicted under
section 376, P.P.C. and sentenced to suffer R.I. for Life with fine of Rs.100,000/ - or in
default thereof to further suffer six months' S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 12th February 2021, at about 8.30 p.m., the complainant
Feroz Khan son of Abdul Rauf, lodged FIR No.91 of 2021 at Police Station Hub City, under section 376, P.P.C., with the averments that on the day of occurrence i.e. 10th February 2021 at evening his grand- father's brother namely Ghulam Mustafa came to their house in a
vehicle bearing Registration No.ALC -962 and have taken away his sister Naseem daughter of
Abdul Rauf, aged 14- years and cousin Ayesha daughter of Abdul Razzaq, aged 06- years. At
about 12.00 p.m. the complainant's son namely Sohail took them back to their house, wherein his sister Naseem disclosed that the appellant Ghulam Mustafa, locked her in a room, fastened her hands and forcibly committed Zina with her.
3. In pursuance of above FIR, the appellant was arrested and was subjected to
investigation and on completion thereof, he was challaned in the trial Court, which indicated the charge and after denial, the prosecution produced five (05) witnesses, whereafter the appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C, nor produced any witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above. Whereafter the instant appeal has been filed.
4. Heard the learned counsel and perused the available record. Record reveals that the
prosecution in order to substantiate the charge has produced the evidence of five witnesses,
but minute scrutiny of the same did not justify the impugned judgment passed by the learned
trial Court. Before dilating upon other material aspects of the case, suffice to observe here that the alleged occurrence took place on 10th February 2021 at evening and according to the victim PW -2 Naseem she on return to her house disclosed the fact of her rape with the
complainant, thus it was expected that the FIR should have been lodged promptly without
any delay, but this has not been done so and the FIR was lodged on 12th February 2021 at
about 08.30 p.m., due to which the entire evidence that was necessary to have been collected
by the Investigating Officer were damaged. There is no explanation on the part of prosecution to justify the delay of two days in lodging the FIR. The main scope of registration of FIR promptly is to bring the criminal machinery into motion so that the investigation may be carried out in right direction and to enable the investigating agency to collect all the necessary evidence from the place of occurrence and also in such like case of rape/zina certain evidences were required to be collected from the body of victim, but certainly after lapse of two days all the evidences were removed by the victim by washing her body and especially the private parts. Non- registration of FIR promptly has damaged the
entire prosecution case.
5. Now adverting to the evidence produced by the prosecution, it is necessary to mention
here that the complainant of the case appeared as PW- 1, who though reiterated the contents
of his fard -e-bayan Ex.P/1 -A, but perusal of his statement reveals that the same is based on
hearsay evidence, as the complainant did not witness the crime himself rather he uttered whatever was stated to him by the other witnesses and he mentioned the same in his fard- e-
bayan Ex.P/1- A. PW -1 admitted in his cross -examination that there exists a landed/property
dispute in between the appellant (convict) and the maternal uncle of complainant and with the allegations of putting into fire the shop and attacking upon him, the appellant had lodged
FIR against him as well as against his maternal uncle. PW- 1 also admitted that the appellant
had also filed a complaint for registration of FIR against him with the allegations of abducting his daughter namely Rabia and also the appellant sent notables of the area to his house to enquire about the whereabouts of his daughter.
6. The above admissions of the complainant (PW -1) clearly establishes the fact that
serious disputes were already existing in between the parties. The appellant had already lodged FIR against PW -1 for attacking upon him and also putting into fire his shop and also
he had submitted a complaint in police station for registration of another FIR against the appellant with the allegations of abducting of his missing daughter Rabia, thus under these peculiar circumstances of the case, the false implication of the appellant cannot be ruled out of consideration. It is also astonishing that since there were strained relations in between both the parties, which resulted into serious allegations of abduction of a girl, attack and putting into fire the shop of appellant and also FIR had been lodged against the complainant, thus now question arises that in existence of such strained relations the appellant would dare to come to the house of complainant or the victim accompanied him to his house. All these facts clearly depicts of mala fides of complainant party and renders the entire case of prosecution as doubtful.
7. So far as the statement of PW- 2 Naseem (victim) is concerned, who mostly reiterated
her early statement and confirmed that soon after her arrival in her house, he disclosed the
fact of rape committed with her by the appellant, but thereafter when her parents came to
house, they lodged the FIR. Such assertion of victim shows that the FIR had been lodged with consultation. PW -2 has brought on record that she was taken to hospital on 12th
February 2021 at about 9.00 p.m. Though, the PW -2 stated in her stated that the Zina was
forcible, but the MLC produced through the Investigating Officer transpires that no signs of
violence were observed upon the body of the victim and even no mark of blood or discharge
on Shalwar Qameez of the victim were observed. The MLC has further confirmed that due to
body area wash, no samples could be taken. It has been observed that though the hymen of the victim was found ruptured, but except this evidence there is no any solid or concrete evidence to establish that the appellant is responsible for such hymen rupture of victim, when otherwise the victim was examined after two days of occurrence and till that time all the evidence were removed by the victim herself by washing her body and certainly the private parts of her body. Thus, no human sperm was detected and non- detection of human sperm
has made the statement of victim as doubtful, who otherwise alleged that the appellant committed rape with her. Even otherwise, the medical report suggests no any injury or sign of violence on the body of the victim and even no spot of semen was found on her clothes and even no sign of sexual intercourse was observed at the time of examination.
8. The prosecution has also produced two other witnesses namely Abdul Razzaq, who
appeared as PW- 3 and Allah Dina (PW- 4). The statements of both the witnesses are in line
with each other to the extent that they saw the appellant taking the victim to his vehicle. However, the statement of Investigating Officer (PW -5) confirms that both the witnesses
were brought himself by the complainant of the case in police station for recording their statements. The statements of both the witnesses show that the same were recorded on 6th March 2021 i.e. after delay of about 25- days from the date of occurrence. There is no
explanation available on record to establish that as to why the statements of both the witnesses were recorded at belated stage and ambiguities arises in a prudent mind with regard to credibility of the said witnesses as the complainant himself managed and produced the said witnesses before the Investigating Officer for associating them in the Investigation. Even otherwise, if for the sake of arguments the delay so occasioned in recording their 161, Cr.P.C. statements, even then the same are not helpful for the case of prosecution due to sole reason that they did not witness the crime directly.
9. We have taken into consideration the entire evidence with utmost care and caution
and have no hesitation to hold that the prosecution has failed to establish the allegations of forcible Zina with the victim. Non -registration of FIR promptly, non- production of Medical
Officer in the Court, existence of previous disputes in between the parties and even no detection of human semen from the private parts of the victim as well as non- detection of
sperm stains from the clothes of victim, have made the case of prosecution as doubtful. Hence, we are of the view that the prosecution has miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt and he has wrongly been convicted and sentenced by the trial Court, while to the contrary sufficient doubts exists in the case of prosecution, but while delivering the impugned judgment the trial Court has failed to extend the benefits of such doubts to the appellant. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme
Court has held that, "The concept of benefit of doubt to an accused is deep- rooted in our
country. For giving him benefit of doubt it is not necessary that there should be many
circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the appeal is allowed, the conviction and sentence awarded to
appellant Ghulam Mustafa by the learned Additional Sessions Judge -II, Hub, vide judgment
dated 15th April 2022 is set aside and while extending the benefit of doubts, the appellant is acquitted of the charge. The appellant being is in custody; is ordered to be released forthwith, if not required in any other case.
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