2024 P Cr. L J 1048
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ.
IMRAN---Appellant
Versus
The STATE through Prosecutor General ---Respondent
Criminal Appeal No.(s) -67 of 2023, decided on 13th November, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 376 & 377- B---Rape, unnatural offence ---Appreciation of evidence ---Benefit of
doubt ---Ocular account not proved---Accused were charged that they took the minor
daughter of the complainant in a rickshaw and then raped her ---Record showed that the
testimony of complainant was not direct, and she stated what she was told by the victim ---
Testimony of victim clearly showed that she was not forcibly made to sit in the rickshaw
driven by witness ---According to victim, the accused and proclaimed offender were known
to her and she willingly sat with them and proceeded to the crime scene ---Place from where
victim sat in the rickshaw was a populated area, but no one had been associated as witness ---
Rickshaw driver/witness denied to identify the accused before the Court ---During cross -
examination, said witness admitted that he recorded the statement under S.164, Cr.P.C, before Judicial Magistrate---Said witness denied that he had made statement before Judicial Magistrate, wherein he had stated that accused present before the Court boarded in his rickshaw ---Statement of said witness had neither been confronted with his previous statement
made before the Police and Judicial Magistrate nor such part of his statement was confronted by the Investigating Officer, thus previous statement could not be taken into account ---Story
narrated by rickshaw driver beliedvictim and created doubt in the prosecution version ---
Moreover, there was also delay of four days in lodging the FIR which casted doubt and gave rise to deliberation and consultation, creating doubt in the ocular account ---Circumstances
established that the prosecution had failed to prove the indictment ---Appeal was accordingly
allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 376 & 377- B---Rape, unnatural offence ---Appreciation of evidence ---Benefit of
doubt ---Medical evidence ---Scope ---Accused were charged that they took the minor daughter
of the complainant in a rickshaw and then raped her ---Testimony of Medico- Legal Officer
showed that no signs of force were applied on the victim rather it mentioned about old defloration of hymen, meaning thereby that the hymen was not ruptured freshly, pointing towards the accused ---Analysis of DNA report showed that samples drawn by Medical
Officer were received in the office of Forensic Science Agency with a delay of 17 days with no explanation, which made the report cloudy, losing its credence ---Besides, the safe custody
of the samples from the date of drawing and securing the same till onward transmission and receipt by the office of Forensic Science Agency had also not been established by the prosecution, which adversely effected the case of the prosecution ---Report of Forensic
Science Agency did not disclose that the seminal material or the spermatozoa matched with the samples and blood of the accused, thus the report being not conclusive and adverse to the accused could in no way be considered either confirmatory or corroborator in nature, hence no reliance could be placed thereon to hold the accused guilty of the indictment ---
Circumstances established that the prosecution had failed to prove the indictment ---Appeal
was accordingly allowed.
Tanveer v. The State PLD 2020 Lah. 774 rel.
Muhammad Saleem Lashari and Khalid Khan Baloch for Appellant.
Muhammad Rasheed for the Complainant.
Jamil Akhtar Gajani, Additional Prosecutor General (APG) for the State.
Date of hearing: 21st September, 2023.
ORDER
SHAUKAT ALI RAKHSHANI, J. ---Appellant has brought before us the captioned
appeal, seeking annulment of the judgment dated 26.11.2022 ("impugned judgment") penned
by learned Special Judge, Anti Rape Act, 2021 Kachhi at Dhadar (Mach Circuit) ("trial court") in Sessions Case No.61/2022, whereby he waso convicted under Section 376 of the Pakistan Penal Code of 1860, (P.P.C.) and sentenced to suffer life imprisonment and to pay fine of Rs.50,000/ - or in default to suffer two years SI. He was further convicted and
sentenced under section 377- B of P.P.C. for five years RI and to pay fine of Rs.10,000/ - or in
default thereof to suffer six months SI, which were directed to run concurrently with the
premium of section 382- B of Cr.P.C, pursuant to an FIR bearing No.01/2022 (Ex.P/8- A)
registered on 03.01.2022 with Police Station Mach by complainant Faiz Bibi (PW -1),
indicting the appellant for committing rape with her minor daughter Khanzadi age 14 years.
2. Succinctly stated, the facts of the prosecution case as disclosed by complainant Faiz
Bibi (PW -1) in the FIR ibid through her written application (Ex.P/1- A) are that on
30.12.2021, her minor daughter -victim Khanzadi (PW- 2), went to Madrasa Jamia Hafsa
Sumalani Colony Mach and in the evening when she came home told her mother that when
she was going to Madrasa, at about 2:30 pm, on the way Waheed Ahmed and appellant Imran
enticed her and took her in a Rickshaw near Old Mach Nadi area, where they tied her hands
with handkerchief; whereafter firstly Waheed and then appellant Imran raped her and then
left her at Kanta graveyard and threatened her not to tell anybody otherwise she would be
killed. It was further asserted that initially the complainant due to fear and disgrace did not tell anyone about the occurrence, however later on lodged the FIR.
3. After registration of the case, investigation was entrusted to SI Abdul Sattar,
Investigating Officer (I.O) (PW -8), who went to the crime scene, prepared site sketch
(Ex.P/8 -B) on the pointation of victim and her family members and recorded their statements
under section 161 Cr.P.C. Thereafter, he went to BMC Hospital Quetta in order to get medical check -up of victim Khanzadi. On 04.01.2022 he arrested the appellant and produced
memo of personal search of the appellant (Ex.P/8- C). On 05.01.2022 he got check- up of
appellant Imran and victim Khanzadi through murasilas (Ex.P/8 -D) and (Ex.P/8- E). He
produced docket report (Ex.P/8- F), Forensic DNA and Serology Analysis Report (Ex- P/8-J)
and challan (Ex.P/8- K), during his examination before the court.
On conclusion of the investigation, the appellant was sent up to face the culpable
deeds of his crime before the trial court, whereas accused Abdul Waheed was declared proclaimed offender ("PO"). On the stated allegations, a formal charge was read over to the appellant, which he pleaded not guilty, thus in order to drive home the indictment, the prosecution produced as many as eight witnesses in the instant case. On close of the prosecution side, the appellant was examined under section 342 of Cr.P.C, whereafter the appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defence; hence at the end of the trial, the appellant was convicted and sentenced in the terms mentioned in the para supra. However, the case to the extent of PO Waheed Ahmed was kept on dormant till his arrest.
4. Learned counsel for the appellant inter alia contended that the impugned judgment is
an outcome of misreading and non -reading of the material evidence and there are material
contradictions in the statements of prosecution witnesses, making the instant case highly doubtful. He next submitted that there is inordinate delay of four days in lodging the FIR, hence deliberation and consultation cannot be ruled out. He maintained that learned trial judge has erred in law and facts while recording the conviction and sentence and that no mark of violence or scratch was noticed by the Medico Legal Officer (MLO) (PW -5) at the
time of examination of victim, which negates the version of crime advanced by prosecution. Further added that from the bare perusal of the prosecution evidence a reasonable doubt emerges, the benefit of which ought to be extended to the appellant and as such appellant deserves acquittal.
Conversely, learned counsel for the complainant and learned APG strenuously
opposed the instant appeal filed by the appellant against his conviction and sentence and
contended that there is no contradiction in the prosecution evidence and the prosecution has proved its case to the hilt beyond any shadow of doubt by producing convincing evidence, therefore, the appellant does not deserve any leniency. Further argued that the impugned
judgment is based upon proper appraisal of the evidence, which need not be overturned,
therefore, sought dismissal of the appeal.
5. Heard. Record vetted with utmost muse and care. The entire edifice of the prosecution
case rests upon the testimonies of Faiz Bibi (PW -1), victim Khanzadi (PW- 2), Dr. Ali
Mardan MLO (PW- 5), Syed Shafi Muhammad HC (PW -7), who secured swabs and clothes
of victim, whereof DNA Serology Analysis Report (Ex.P/8- J) was issued by Punjab Forensic
Science Agency ("PFSA") and last but not the least statement of Kifayatullah (PW -4)
recorded under section 164 of Cr.P.C by Mrs. Ans Gul Judicial Magistrate Mach (JM Mach)
(PW -6).
6. Faiz Bibi (PW- 1) mother of victim testified that on 30.12.2022, her 14 years daughter
went to Madrasa at 2:00 pm and when she returned home in the evening while crying, she told her that when she was returning home, appellant Imran and PO Waheed took her in a rickshaw and went towards Old Mach and after tying her hands with handkerchief, firstly Waheed and then appellant Imran raped her and then left her at Kanta graveyard and threatened her not to tell anybody otherwise she would be killed. Faiz Bibi (PW -1) further
stated that due to absence of her husband she went to get register the FIR lately, which seems a lame excuse. She produced her application (Ex.P/1 -A), whereby FIR ibid was registered.
Victim Khanzadi (PW- 2) came up with a similar story as narrated by her mother (PW- 1). She
reiterated that at 2:30 pm, while she was proceeding towards Madrasa the appellant and
Waheed enticed her and made her sit in a rickshaw at 2:30 pm and took her to Mach near a river situated at Old Mach area, where her hands were tied with handkerchief, whereafter firstly Waheed and then Imran committed rape with her and lastly dropped her at Kanta graveyard by threatening her that she would be killed if she disclosed to anyone what had happened. The testimony of Faiz Bibi (PW -1) is not direct, however, stated what she was let
to know by the victim (PW -2). The testimony of victim Khanzadi (PW -2) clearly shows that
she was not forcibly made to sit in the rickshaw driven by Kifayatullah (PW -4). According to
her, the appellant and PO were known to her and she willingly sat with them and proceeded to the crime scene. The place from where she sat in the rickshaw is a populated area, but no one has been associated as witness.
Kifayatullah (PW- 4) rickshaw driver deposed before the court that on 20.12.2021 at
2:00 pm when he reached Sumalani _Colony Girls High School two men and a woman with a child was standing, amongst whom woman and a man sat in the rickshaw, whereas a young girl stayed there. He further testified that said man and woman stopped at Geetani bridge and alighted there and he was told to stay there; one and a half hours later, they came and were dropped by him at Kanta graveyard. He denied to identify the accused before the court. During cross -examination, he admitted that he recorded the statement under section 164,
Cr.P.C. before JM Mach. He denied that he had made statement before JM Mach, wherein he had stated that accused present before the court boarded in his rickshaw; voluntarily stated that the said person was tall. He denied that he stated before the police that he already knew him. He denied that he had stated before the police and JM Mach that a young girl also sat with Mst. Khanzadi in his rickshaw. The statement of Kifayatullah (PW -4) has neither been
confronted with his previous statement made before the Police and JM Mach nor such part of his statement was confronted by the IO (PW -8), thus previous statement cannot be taken into
account. The statement of rickshaw driver (PW -4) recorded by JM Mach (PW -6) reveals that
on 30.12.2021 PO Waheed hired him whom he brought in his rickshaw towards Girls High School Sumalani Colony, where two women Aaring burqas with Imran was standing,
wherefrom Imran and one of the said women boarded in his rickshaw, who were dropped by
him at Geetani bridge and thereafter an hour he brought them back and left them at Kanta graveyard.
The story narrated by rickshaw driver (PW -4) belies Khanzadi (PW- 2) and creates
doubt in the prosecution version. Moreover, there is also delay of four days in lodging the FIR ibid, which casts doubt and gives rise to deliberation and consultation, creating doubt in the ocular account. More so, when Kifayatullah (PW -4) denied to identify the appellant
before the court to be the culprit.
7. According to Dr. Ali Mardan Mengal (PW -5), on 03.01.2022 at 3:15 pm, he
medically examined Khanzadi (PW -2) and observed that her hymen was missing (old
defloration) but with no fresh tear and bruises seen on perinial region. The MLO (PW -5) also
secured anal, viginal and buckle swab with blood for DNA analysis and detection of semen.
He also examined appellant on 05.01.2022 at 8:50 pm, who was found to be mentally and physically healthy, having normal circumcised penis with two testes and scrotum. His blood and oral swab was taken for DNA analysis.
The testimony of MLO (PW -5) shows that no signs of force were applied on the
victim rather it mentions about old defloration of hymen, meaning thereby that the hymen was not ruptured freshly, pointing towards the appellant. Analysis of DNA report (Ex- P/8-J)
shows that samples drawn by Dr. Ali Mardan Mengal (PW -5) were received in the office of
PFSA on 20.01.2022 with a delay of 17 days with no explanation, which makes the report (Ex.P/8 -J) cloudy, losing its credence. Besides above, the safe custody of the samples from
the date of drawing and securing the same till onward transmission and receipt by the office of PFSA has also not been established by the prosecution, which adversely effects the case of the prosecution. In this regard reliance can be placed to the case of "Tanveer v. The State" (PLD 2020 Lahore 774). The conclusion drawn by the analyst shows that seminal material was found on item Nos. 7.1, 7.2 and 7.4.2, whereas trace number of spermatozoa were identified on item No.s 7.3 and 7.5. Item Nos.7.1, 7.2 and 7.4 relates to the clothes of victim Khanzadi (PW- 2) whereupon seminal material and trace number of spermatozoa were
identified on item No.7.3 and 7.5 being the clothes of the victim. The report ibid does not disclose that the seminal material or the spermatozoa matched with the samples and blood of
the appellant, thus the report being not conclusive and adverse to the appellant can no way be considered either confirmatory or corroboratory in nature, hence no reliance can be placed thereon to hold the appellant guilty of the indictment.
8. After meticulous recital and critical analysis of the record, we have irresistibly arrived
at the conclusion that the case of the prosecution is highly doubtful and the prosecution has failed to prove the indictment. Moreover, the evidence brought against the appellant has been found to be contradictory, untrustworthy and non- confidence inspiring, therefore, the reasons
and conclusion drawn by the trial court being founded on improper evidence cannot be allowed to hold field and as such merits to be set at naught.
9. Corollary, the appeal is allowed, the impugned judgment 26.11.2022 of the trial court
is set aside and the appellant is acquitted of the charge, who be released forthwith, if no required in any other case.
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