PLJ 2022 Cr.C. (Note) 35
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 496-A, 376, 419, 170 & 171--Conviction and sentence--Challenge to--Benefit of doubt--There is another allegation against appellant that, the appellant after abducting alleged abductee, committed rape with her--Allegation has not been proved--Alleged abductee did not get her medically examined after incident--Undoubtedly, in absence of medical examination of a victim allegation of rape cannot be proved against accused--There is nothing on record as to why alleged abductee, was not produced by police before Area Magistrate for getting permission for medical examination of alleged abductee--Undisputedly, appellant is not nominated in FIR and case was registered against an unknown person--No identification parade was conducted in this case--There is nothing on record as to how complainant party came to know about name and address of appellant--Mere identification of appellant by witnesses of ocular account during trial has no value in eye of law and said practice has been disapproved by Hon'ble Supreme Court of Pakistan--Prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--Appeal allowed.
[Para 7 & 9] B, C & D
2017 SCMR 1189.
Credibility of Witness--
-----It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. [Para 7] A
1998 SCMR 570.
Benefit of Doubt--
----Principle--It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 9] E
2009 SCMR 230.
Mr. Tayyab Shakoor Rana, Advocate for Appellant.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 5.10.2017.
PLJ 2022 Cr.C. (Note) 35
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD ARIF--Appellant
versus
STATE--Respondent
Crl. Appeal No. 286-J, M.R No. 305 of 2014, heard on 5.10.2017.
Judgment
Shehram Sarwar Ch., J.--Muhammad Arif (appellant) was tried by the learned Addl Sessions Judge, Faisalabad Camp at Central Jail Faisalabad in case FIR No. 873/2011, dated 08.07.2011, offence under Sections 496-A, 170 and 171, PPC (offence under Sections 376 and 419, PPC were added later on), registered at Police Station Madina town District Faisalabad. Vide judgment dated 11.04.2014 passed by the learned Addl Sessions Judge, Faisalabad Camp at Central Jail, Faisalabad, Muhammad Arif (appellant) was convicted under Sections 170, 171, 419, 496-A and 376, PPC and sentenced as under:
“... hence offence u/S. 170, PPC is proved and he is convicted and sentenced to 02 years R.I. with fine of Rs. 10000/- In case of default of payment of fine, he shall undergo further 15 days S.I. That offence u/S. 171, PPC has also been proved, hence, he is convicted and sentenced to 03 months R.I. Accused is also convicted u/S. 419, PPC and sentenced to 07 years R.I. He is also convicted u/S. 496-A, PPC and sentenced to 07 years R.I. with fine of Rs. 50000/-. In case of default of payment of fine, he shall undergo further 03 months S.I. All the punishments shall run concurrently with each other and along with
other cases and he shall also be entitled to the benefit of Section 382-B, Cr.P.C. He is also convicted u/S. 376, PPC and is sentenced to death and shall be liable to pay fine of
Rs. 100000/- (one lac) and in case of default in payment of fine he shall further undergo 04 months S.I. ...”
Assailing the above convictions and sentences, the appellant has filed the appeal in hand, whereas, the learned trial Court has sent Murder Reference No. 305 of 2014 for confirmation or otherwise of Muhammad Arif, appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the application (Ex.PA) of Muhammad Shahid, complainant (PW.3) is that he (complainant) was resident of Chak No. 278-GB and was a driver in Falah-e-lnsaniat Foundation, Faisalabad. On 07.07.2011 he alongwith his wife Mst. Jamila Amin had come to the house of his uncle Zia-ur-Rehman. On 08.07.2011, they left the said house and proceeded on foot in order to go to Allied Hospital for medical check-up of Mst. Jamila Amin. At about 7:45 a.m. when they reached near Khawaja Chowk, a car of silver colour having no number with a monogram of two swords, driven by an unknown person, came near them. The unknown person, by showing his card, introduced himself as officer of ISI and asked the complainant and his wife that some of their calls had been traced out and moreover they were found involved in Multan bomb blast regarding which some investigation had to be conducted in the office of I.S.I. Faisalabad near DHQ Hospital and for that reason they had to accompany him to the above said office. The complainant asked the said person that first they had to inform their uncle Zia-ur-Rehman who was living in
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant was summoned by the learned Addl Sessions Judge,
“I sold a vehicle to the SHO Qilla Gujjar Singh which as a non-paid custom vehicle and same was forfeited by the government afterwards and due to this grudge SHO namely Qadeer roped me in the instant case as well as three other cases. The real uncle of complainant was also performing his duty as “ARDALI” in the office of D.I.G. situated at Qila Gujjar Singh,
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that appellant is not nominated in the FIR; that no identification parade was conducted in this case; that allegation of rape has not been proved against the appellant because Mst. Jamila Amin the alleged victim was not medically examined; that story of prosecution qua alleged abduction of Mst. Jamila Amin and thereafter committing rape with her by the appellant is highly improbable; that the incident allegedly took place on 08.07.2011 and as per prosecution's own story Mst. Jamila Amin the alleged abductee came to her house on 09.07.2011, after releasing her from the custody of appellant but she got recorded her statement under Section 161, Cr.P.C. on 07.08.2011 i.e. about one month after the incident without there being any satisfactory explanation; that alleged recoveries of pistol 30 bore and I.D. card of complainant at the instance of appellant are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
5. On the other hand, learned Deputy Prosecutor General opposes this appeal on the grounds that matter was reported to the police with due promptitude; that though the name of the appellant is not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complainant because had there been any malice on the part of the complainant, the appellant could have straightaway been nominated in the FIR; that the appellant has rightly been identified by all the witnesses of ocular account during the trial; that the appellant has committed a heinous crime; that prosecution case is corroborated by the recoveries of pistol and I.D.Card of complainant at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
7. Salient features of the prosecution case are as under:-
a) This incident wherein Mst. Jamila Amin wife of the complainant was initially abducted and thereafter rape was committed with her, as per prosecution, took place in the area of
b) So far as prosecution story qua alleged abduction of Mst. Jamila Amin by the appellant is concerned, the same is highly improbable because in the FIR as well as before the learned trial Court it was the case of prosecution that the appellant alone met the complainant and his wife Mst. Jamila Amin and introduced himself as Officer of ISI and asked them to go with him to the office of ISI for some investigation whereupon the complainant and his wife Mst. Jamila Amin accompanied him in a car but on the way the appellant alighted the complainant from the car dramatically and took Mst. Jamila Amin with him. Surprisingly, Mst. Jamila Amin did not raise any hue and cry in the car as well as in hotel where she spent night with the appellant. Mst. Jamila Amin has also admitted in her examination-in-chief that the appellant, after committing rape with her, also took her to bazar where he purchased 4/5 mobiles and thereafter the appellant dropped her at Bilal Adda Bakkar Mandi Lahore and gave her Rs. 500/- as fare for going to her house but during the said period she also remained silent and did not raise any alarm about her abduction as well as committing rape with her by the appellant. Moreover, the alleged incident took place on 08.07.2011. Mst. Jamila Amin reached her house on 09.07.2011 after getting her free from the custody of appellant whereas her statement under Section 161, Cr.P.C. was recorded on 07.08.2011 i.e. about one month after the incident. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as “Muhammad Khan vs Maula Bakhsh and another” (1998 SCMR 570).
c) There is another allegation against the appellant that, he (appellant) after abducting Mst. Jamila Amin, committed rape with her. The said allegation has not been proved against the appellant because Mst. Jamila Amin the alleged abductee did not get her medically examined after the incident. Undoubtedly, in the absence of medical examination of a victim the allegation of rape cannot be proved against the accused. There is nothing on record as to why Mst. Jamila Amin was not produced by the police before the learned Area Magistrate for getting permission for the medical examination of Mst. Jamila Amin.
d) Undisputedly, the appellant is not nominated in the FIR and the case was registered against an unknown person. No identification parade was conducted in this case. There is nothing on record as to how the complainant party came to know about the name and address of the appellant. Mere identification of appellant by the witnesses of ocular account during the trial has no value in the eye of law and the said practice has been disapproved by the Hon'ble Supreme Court of Pakistan in a recent judgment titled as “Gulfam and another vs The State” (2017 SCMR 1189).
e) In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant allegedly abducted Mst. Jamila Amin on a car but no car was recovered from the appellant during the course of investigation. Moreover, as per prosecution case, at the time of alleged abduction of Mst. Jamila Amin the appellant introduced himself as Officer of ISI by showing his card but no said card was recovered from the appellant during the course of investigation.
f) So far as alleged recovery of pistol at the instance of appellant is concerned the same is immaterial because the said pistol was not used during the incident. As far as alleged recovery of I.D. Card of complainant at the instance of appellant is concerned the same does not advance the case of prosecution because the said card was got recovered by the appellant from an open place, accessible to everyone.
8. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version.
9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In “Muhammad Akram versus The State” (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:
“13. ... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
10. For the foregoing reasons, Criminal Appeal No. 286-J of 2014 filed by the appellant is allowed, convictions and sentences awarded to him vide judgment dated 11.04.2014 passed by the learned Addl Sessions Judge, Faisalabad are set aside and Muhammad Arif (appellant) is acquitted of the charges while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 305 of 2014 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Arif (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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