PLJ 2022 Cr.C. 1204
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
MUHAMMAD SAEED--Appellant
versus
STATE and another--Respondents
Crl. A. No. 290 of 2013, heard on 8.10.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Conviction and sentence--Challenge to--Allegations of--Commission of rape--No mark of violence--Delay in medical examination--She was raped in day time at a short distance of place where her father was harvesting crops, so how it was possible that appellant completed criminal act and when it was over then complainant and witnesses arrived and appellant was succeeded to escape--Statement u/S. 161, Cr.P.C. admittedly was recorded after more than one month of occurrence for which no explanation is there--Even if it is considered as negligence on part of Investigating Officer, even then prosecution cannot get any benefit because of other reasons discussed earlier--These are settled principles of law that prosecution in all circumstances is under heavy duty to prove its case beyond reasonable doubt by producing reliable evidence and once it fails, benefit of doubt shall be extended to accused not as a matter of grace but as a matter of right--Appeal allowed.
[Pp. 1207] A, B & C
Mr. Shafqat Raza Thaheem Advocate for Appellant.
Mr. Khan Muhammad Khokhar Advocate for Complainant.
Mr. Muhammad Laeeq-ur-Rehman Assistant District Public Prosecutor for State.
Date of hearing: 8.10.2021.
PLJ 2022 Cr.C. 1204
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
MUHAMMAD SAEED--Appellant
versus
STATE and another--Respondents
Crl. A. No. 290 of 2013, heard on 8.10.2021.
Judgment
Muhammad Saeed (appellant) faced trial in case FIR No. 136 (PB/I) recorded on 27.04.2010 under Section 376, PPC at Police Station Alpa District Multan on the complaint of Allah Wasaya (Pw-2) for the allegations of commission of rape with Mst. Shaista (Pw-4). On conclusion of trial vide judgment dated 30.05.2013, he was convicted under Section 376, PPC and sentenced to undergo 14 years R.I along with fine of Rs. 50000/-. In default of payment of fine he was ordered to further undergo three months S.I. Benefit of Section 382 B, Cr.P.C. was also extended to appellant.
2. In brief prosecution's case was that on 27.04.2010 Allah Wasaya submitted an application (PB), where he maintained that on 12.04.2010 he along with his daughter Shaista aged 13/14 years and her niece Mst. Sobia aged 16/17 years were present in field and harvesting the crop; at about 02:00 pm, he sent both the females to tube-well, so as to bring the water; when they were returning from tube-well, on the way Mst. Shaista went in the field to answer the call of nature where Muhammad Saeed (appellant) was already present; appellant held Shaista Bibi and after placing his hand on her mouth committed rape with her; Mst. Sobia Bibi rushed and told him/complainant; when they reached there, appellant was succeeded to escape.
3. On the basis of above application, FIR was recorded, investigation was conducted and report under Section 173, Cr.P.C. (Challan) was submitted in Court.
4. A charge under Section 376, PPC framed against appellant was not pleaded guilty by him whereafter prosecution had produced lady Dr. Ghazala Safdar (Pw-1), Allah Wasaya/complainant (Pw-2), Sobia/an eye-witness (Pw-3), Mst. Shaista/victim (Pw-4), Muhammad Nawaz Constable (Pw-5), Mumtaz Hussain Constable (Pw-6), Dr. Gul Hassan Shah (Pw-7), Abdul Ghafoor ASI (Pw-8), Khadim Hussain S.I/IO (Pw-9) and Nasir Ibrahim Constable (Pw-10).
5. In his examination made under Section 342, Cr.P.C., appellant pleaded his false involvement due to enmity with rivals and according to him a so called story was introduced. In defence he produced two documents (D1 and D2) as well as one Muhammad Nawaz (Dw-1). Appellant opted not to produce defence evidence or to appear in terms of Section 340(2), Cr.P.C.
6. Learned counsel for appellant contended that there is an inordinate delay in reporting the matter to police which was not explained; medical evidence is not supporting the version of victim because of absence of marks of violence; this fact is evident from the statement of Mst. Shaista that she was a married lady; her statement under Section 161, Cr.P.C. was recorded after one month of the occurrence; statements of witnesses are suffering from contradictions and infirmities. He finally maintained that the learned trial Court was not justified in given circumstances to record the conviction against appellant.
7. On the other hand, learned ADPP and learned counsel for complainant jointly contended that it was a day light occurrence; question of identification of appellant is not under dispute; parties were having no enmity at all; question of false involvement does not arise; there was no delay in lodging the FIR because complainant had been approaching the police and when he was not honored, he filed an application under Sections 22-A/22-B, Cr.P.C. for registration of FIR and thereafter law enforcing agency came into motion; medical evidence fully supports the ocular account; statements of witnesses are in line with each other; delay in recording the statement of victim was because of the Investigating Officer as he is the one who had to perform his lawful obligations with responsibility and in failure to do so complainant cannot suffer.
8. HEARD.
9. Occurrence took place on 12.04.2010 and FIR was recorded on 27.04.2010. Although in complaint no reason whatsoever by complainant has been given but the endorsement made by the order Investigating Officer shows that he registered the FIR pursuant to the order of Ex-Officio Justice of Peace dated 21.04.2010. The said application and order were not produced during trial, which have been examined today and even if this application is considered, it reveals that complainant first time knocked the door of Justice of Peace on 21.04.2010 that too after nine days of the occurrence.
10. Allah Wasaya (Pw2) did not state a single word in his examination-in-chief that immediately after the occurrence he Contacted the police who was reluctant to record the FIR.
11. For the sake of arguments if delay is ignored, still prosecution' has many challenges in this case. Statement of lady doctor Ghazala Safdar (Pw-1) makes it clear, that there was no mark of violence at all on the victim Mst. Shaista whose hymen was torn and one finger could pass easily; Mst. Shaista in cross-examination admitted that she was married one year earlier to this occurrence. Her Rukhsati may have not taken place but this fact that after the Nikah she developed physical relations with her husband cannot be ruled out.
12. Prosecution has also no answer to a question that why the medical examination of the victim was made on 17.04.2010 after five days of the occurrence?
13. She was raped in day time at a short distance of the place where her father was harvesting the crops, so how it was possible that the appellant completed the criminal act and when it was over then complainant and witnesses arrived and appellant was succeeded to escape.
14. Muhammad Nawaz was shown as an eye-witness of the occurrence but during the trial he was given up on the reason that he was won over by the appellant. He therefore, was brought in the witness box as Dw1 and he categorically denied about any occurrence on the relevant day. Only two lines cross examination was made on him by the learned ADPP but with no success in favour of the prosecution.
15. The statement under Section 161, Cr.P.C. admittedly was recorded on 29.05.2010 after more than one month of the occurrence for which no explanation is there. For the sake of arguments, even if it is considered as negligence on the part of Investigating Officer, even then prosecution cannot get any benefit because of other reasons discussed earlier.
16. These are the settled principles of law that prosecution in all circumstances is under heavy duty to prove its case beyond reasonable doubt by producing reliable evidence and once it fails, the benefit of doubt shall be extended to accused not as a matter of grace but as a matter of right.
17. Concluding the discussion made above, I find no difficulty to hold that prosecution has badly failed to prove its case beyond reasonable doubt against appellant; hence this Criminal Appeal is allowed. Impugned judgment dated 30.05.2013 is set aside. Appellant is acquitted from the case. He is on bail and his surety is discharged from terms and conditions of bail bonds.
(A.A.K.) Appeal allowed
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