-Appellant had been implicated in present criminal case on account of some misunderstanding and allegation of rape levelled against him was also result of some misunderstanding-

 PLJ 2022 Cr.C. 811

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 376--Conviction and sentence--Challenge to--Allegation of committing rape--House trespass--Benefit of doubt--Alleged victim's affidavit--Appellant had been implicated in present criminal case on account of some misunderstanding and allegation of rape levelled against him was also result of some misunderstanding--The alleged victim (Rafia Bibi) and complainant also personally appeared before this Court and owned affidavits sworn by them and further stated that they have got no objection, if appellant be acquitted from charge.   [P. 812] A

Malik Abdul Rehman Tariq Khand, Advocate for Appellant.

Mr. Muhammad Sharif Karkhi Khera, Advocate for Complainant.

Malik Mudassir Ali, Deputy Prosecutor General for State.

Date of hearing: 3.11.2021.

 PLJ 2022 Cr.C. 811
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
NADEEM IQBAL--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 1070 of 2019, decided on 3.11.2021.

Judgment

Appellant Nadeem Iqbal was tried in case F.I.R. No. 233/2016 dated 29.04.2016 registered u/S. 376 P.P.C. at P.S. Saddar Chichawatni, Sahiwal, on the allegation of committing rape with Mst. Rafia, a married lady, after tress-passing into her house and the incident was reported to the police by her father in-law Noor Samand complainant.

2. After submission of challan, the appellant was indicted u/S. 376, P.P.C. and vide judgment dated 05.04.2018, the learned Additional Sessions Judge, Chichawatni proceeded to convict and sentence him 10-years R.I. with a fine of Rs. 50,000/- under Section 376 P.P.C, however, benefit of Section 382-B, Cr.P.C. was extended to him.

3. By filing the instant appeal, the appellant has impugned the judgment.

4. During the proceeding of the instant appeal, report qua served/unserved sentence of the appellant was requisitioned from the Superintendent, Central Jail, Sahiwal and the same was submitted on 12.07.2021, which showed that the appellant had already undergone 05-years, 10-months and 21-days and his unexpired portion of sentence was mentioned as 04-years, 01-month and 09-days.

5. Learned counsel for the appellant, at the very outset tendered duly sworn affidavit of Mst. Rafia Bibi (the alleged victim) and Noor Samand (complainant of the case) as Mark-A & B, respectively. I have perused the contents of the affidavits and found that both the witnesses deposed that the appellant had been implicated in the present criminal case on account of some misunderstanding and the allegation of rape levelled against him was also result of some misunderstanding. The alleged victim (Rafia Bibi) and the complainant also personally appeared before this Court and owned the affidavits sworn by them and further stated that they have got no objection, if the appellant be acquitted from the charge. The august Supreme Court of Pakistan, while rendering the judgment in case of Zulfiqaruddin v. The State, etc. in Crl. Appeal No. 98 of 2015 dated 19.11.2015, dealing with the same situation, held as under:

“3. With the assistance of the learned Additional Prosecutor-General, Punjab appearing for the State we have gone through the memorandum of this appeal, the impugned judgments passed by the Courts below and the record of the case and have found that the criminal case in hand had originated in the year 2009. The appellant happens to be a cousin of the alleged victim of rape namely Mst. Alia Bibi (PW-5) besides being a nephew of the complainant namely Umer Ahsan (PW-4). The record shows that the appellant wanted to marry the alleged victim namely Mst. Alia Bibi (PW-5) and upon refusal of that matrimonial proposal the appellant had allegedly committed the offences which are the subject matter of the present criminal case. During the pendency of the appellant’s appeal before the High Court the complainant namely Umer Ahsan (PW-4) as well as the alleged victim namely Mst. Alia Bibi (PW-5) and Mst. Haleema Bibi (PW-6) had sworn affidavits maintaining therein that the present appellant had been implicated in the present criminal case on account of some misunderstanding, the appellant had not abducted anybody and the allegation of
 rape leveled against him was also a result of some misunderstanding. The complainant had personally appeared before the High Court at the time of hearing of the appellant’s appeal and he had owned the affidavits sworn by him and the

two victims. It is important to notice here that the said stand taken by the complainant and the alleged victims had been accepted by the High Court and resultantly the appellant had been acquitted of all the charges pertaining to the compoundable offences and his sentence vis-a-vis the non-compoundable offences were reduced by the High Court. We are of the opinion that if the High Court was minded to accept the affidavits sworn by the complainant and the alleged victims, in which affidavits it had been maintained that the allegations leveled against the appellant were factually incorrect, then instead of reducing the sentences of the appellant vis-a-vis the non-compoundable offences the High Court ought to have rejected the prosecution’s case as a whole entailing acquittal of the appellant but unfortunately that course was not adopted by the High Court.”

6. So, seeking guidance from this judgment by the top Court, I hereby allow the instant appeal, the outstanding convictions and sentences of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. The appellant shall be released from the jail forthwith if not required to be detained in connection with any other case.

(A.A.K.)          Appeal allowed