--Ss. 376 & 83---He was capable of performing sexual act but Medical Officer failed to give any specific opinion qua capability of appellant/convict to perform sexual intercourse-

 PLJ 2022 Cr.C. 1123

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

----Ss. 376 & 83--Rape--Nothing offence done by a child--Appellant/ convict is a child and in order to determine his age, a district standing medical board, was opinion is 10 to 12 years old--He was capable of performing sexual act but Medical Officer failed to give any specific opinion qua capability of appellant/convict to perform sexual intercourse--There is no evidence, available on the record to establish the fact that appellant/convict being a minor had attained sufficient maturity of understanding to judge the nature of offence--Prosecution has failed to prove its case against appellant beyond the shadow of a reasonable doubt--Appellant is acquitted of the charge.   [Pp. 1126 &1127] A, B, C, D & E

2019 SCMR 129 ref.

Rana Muhammad Javed Iqbal, Advocate for Appellant.

Malik Ghulam Muhammad Langrial, Advocate for Complainant.

Mr. Ansar Yaseen, Deputy Prosecutor General for State.

Date of hearing 17.1.2022.

 PLJ 2022 Cr.C. 1123
[Lahore High Court, Multan Bench]
Present: Shakil Ahmad, J.
UMAR HAYYAT--Appellant
versus
STATE--Respondent
Crl. A. 1103-J of 2019, heard on 17.1.2022.

Judgment

Umar Hayyat (hereinafter referred to as appellant) has preferred instant Criminal Appeal No. 1103 of 2019 through jail authorities against his conviction and sentence. Appellant was tried by learned Additional Sessions Judge, Muzaffargarh in connection with case FIR No. 157/2019 dated 15.04.2019 offence under Section 376 (i), PPC registered at Police Station City Muzaffargarh. Upon conclusion of trial appellant was convicted under Section 376(i), PPC and was sentenced to undergo R.I. for 10-years with a fine of Rs. 50,000/- in default of payment thereof, he shall suffer S.I for six months. Benefit of Section 382-B was also given to the appellant.

2. Muhammad Jameel complainant reported the matter through written application Exh.PA before Station House Officer, Police Station City Muzaffargarh by stating therein that his wife Mst. lrshad Bibi sent his daughter Mst. Kausar Fatima, aged 8/9 years, to purchase vegetable from a nearby street but she did not return and when she came back home, her daughter was out of sorts and there were stains of blood on her Shalwar and upon inquiry, her daughter told that when she reached at shop to purchase vegetable, same was closed and Umar Hayyat (appellant) asked her to accompany him by offering toffees and then took her to a vacant plot where there were two ditches and took her in one ditch, removed her Shalwar and then did something on her vagina, resulting in the bleeding therefrom and Umar Hayyat (appellant) managed to his scape good after wearing his Shalwar. According to complainant, they raised their concern with the parents of Umar Hayyat (appellant) and then reported the matter to police.

3. Syed Khizar Abbas ASI (PW-7) after receiving Exh.PA, got lodged formal FIR Exh:PD. Investigation of the case was entrusted to Muhammad Bilal ASI (PW-5) who said to have visited District Headquarter Hospital Muzaffargarh, recorded statements of PWs and arrested appellant on 19.04.2019. Upon conclusion of investigation he prepared report under Section 173 Cr.PC by placing the name of appellant Umar Hayyat in Column No. 3 of the said report. Copies as envisaged under Section 265-C of, Cr.P.C. were supplied to the appellant on 28.05.2019 and he was formally indicted on 22.06.2019, who pleaded not guilty and the trial commenced.

4. In report under Section 173, Cr.P.C., the prosecution has cited as many as 12 witnesses, out of them, 11-witnesses were examined, however, prosecution has given up PW Muhammad Ismail being unnecessary. Mst. Kausar Fatima (victim) appeared as PW-1 and narrated the occurrence in the result of which she was raped by appellant Umar Hayyat. Muhammad Jameel complainant appeared as PW-2 and deposed in line with his application (Exh:PA). Muhammad Javed Iqbal (PW-3) is a witness who said to have heard the story told by the victim in presence of her parents. The remaining witnesses except Dr. Hassan Muhai-ud-Din M.O (PW-9) are formal in nature. Dr. Hassan Muhai-ud-Din M.O (PW-9) deposed as under:-

"On 21.04.2019, I was posed as M.O at DHQ Hospital Muzaffargarh. On the same day, Umar Hayyat S/O Muhammad Latif along with police docket Exh.PF appeared before me for potency test. I examined the said Umar Hayyat and on his examination found Cremasteric reflex positive and pubic exiliary hair not developed. My report Exh:PF/1 is available on record which is in my hand and bear my signature?”

During trial, an application under Section 540, Cr.P.C. summoning of Abdul Qayyam, who alleged to see the victim in the company of appellant while plyaing in the vacant plot, which application was accepted and evidence of Abdul Qayyam as PW-11 was also recorded. The learned ADPP, vide his statement dated 24.09.2019, closed the prosecution evidence.

5. Statement of appellant/convict under Section 342, Cr.PC was recorded on 26.09.2019. He denied the charges and mainly professed his innocence. The appellant/convict, while replying to questions that "why the complainant got registered this case against you" and "why the PWs deposed against you", he precisely took the stance that he was innocent and did not commit any crime and he has been involved in this case for the reason that complainant wanted to take Rishta of his sister for his brother and upon refusal, the complainant and his sister Shahnaz Bibi quarreled with his parents and thereafter registered this false case against him. The appellant did not opt to appear as his own witnesses under Section 340(2), Cr.PC, however, he opted to produce some documentary evidence and by placing on record Mark-DA to Mark-DC, closed his defence evidence.

6. Learned trial Court upon conclusion of the trial found appellant guilty, convicted and sentenced the appellant. Hence, this Jail Appeal.

7. Learned counsel for the complainant did not raise any objection on acceptance of this appeal by stating that the complainant is no more interested for conviction of the appellant and even if the appeal is accepted, the complainant would have no objection.

8. Heard. Record perused.

9. In order to prove the case of rape/sexual assault, opinion of the Medical Officer that an accused is medically capable of Peno-Vaginal intercourse particularly where accused is a child below the age of 12 years, was essentially required. In the instant case, appellant/ convict is a child and in order to determine his age, a District Standing Medical Board (DSMB) on 24.04.2019 was constituted, who was of the opinion vide report Exh:PE that appellant/convict was 10 to 12 years old. During investigation, appellant/convict was subjected to medical/ potency test by Dr. Hassan Muhai-ud-Din M.O (PW-9) so as to establish the fact that he was capable of performing sexual act but Medical Officer (PW-9) failed to give any specific opinion qua capability of appellant/convict to perform sexual intercourse. During cross-examination, Dr. Hassan Muhai-ud-Din (PW-9), deposed that at the time of examination of appellant/convict, there was no erection of penis of appellant. In the instant case, the Medical Officer failed to specifically depose qua capability of appellant/convict to perform sexual act, which would indeed create a dent in a prosecution case and benefit of the same would indeed go to appellant/convict. No evidence whatsoever was adduced by the prosecution to establish the fact beyond shadow of doubt that appellant/convict, who was a minor below the age of 12 years, was capable of committing the alleged crime. Moreover, there is no evidence, available on the record to establish the fact that appellant/convict being a minor had attained sufficient maturity of understanding to judge the nature of offence and consequence of his conduct. Under the provisions of Section 83 of PPC, nothing is an offence which is done by a child above ten years of age and under fourteen, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct. When whole prosecution evidence is seen in the backdrop of above discussed fact, it can very conveniently be resolved that the prosecution failed to prove its case against the appellant/convict beyond any shadow of reasonable doubt and whenever a single dent is created in the prosecution case, the accused becomes entitled to acquittal.

10. In the sequel of above discussion, it can very safely be concluded that prosecution has failed to prove its case against appellant beyond the shadow of a reasonable doubt. It is settled law that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same will go to the accused. It is by now settled principle of criminal justice that there is no, need of so many doubts in the prosecution case, rather a single doubt arising out of the prosecution case is sufficient for acquittal of the accused. In the case of Abdul Jabbar and another v. The State (2019 SCMR 129), Hon'ble Supreme Court of Pakistan has held as under:

"--It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused--"

11. Upshot of above discussion is that prosecution hopelessly failed to prove its case against appellant. Findings of conviction recorded against appellant by learned Additional Sessions Judge, Muzaffargarh in the impugned judgment are not sustainable, which are hereby set aside allowing this criminal appeal. Consequently, appellant Umar Hayyat is acquitted of the charge by extending benefit of doubt to him. Appellant is in jail. He be released forthwith if not required in any other case.

(K.Q.B.)          Appeal allowed