PLJ 2022 Cr.C. 1321
Ocular account--
----Ocular account is not synchronized with medical account--The accumulative effect of supra mentioned discussion is that Court have no hesitation to hold that ocular account is not synchronized with medical account. [P. 1324] A
2018 YLR 2592 & 2019 SCMR 1920.
Pakistan Penal Code, 1860 (XLV of 1860--
----Ss. 376, 452 & 384--Conviction and sentence--Challenge to--Benefit of doubt--Offence of rape--Dark night occurrence--Appellants were not previously known to prosecution witnesses and identification parade was very much necessary to ascertain fact that appellants were same persons who committed rape with victim--The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with prosecution and if it fails to successfully discharge it, only result can be extension of benefit of doubt to accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient--Held: It is an axiomatic principle of law that in case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace. [Pp. 1325 & 1327] B & D
2021 MLD 1184, 2017 SCMR 1189, 2018 SCMR 772, 2020 SCMR 857, 2021 SCMR 736 and 2021 SCMR 873.
Disbelieve of PWs--
----Principle--It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in present case. [P. 1327] C
2016 SCMR 1763, 2018 SCMR 787, 2018 SCMR 2118, 2019 SCMR 79, 2020 SCMR 219 & 2021 SCMR 455.
M/s. Muhammad Akram Qureshi & Umar Khalid Awan, Advocates for Appellant.
Mr. Hassan Ali, Additional Prosecutor General for State.
M/s. Aqeel Wahid Chaudhry, Ch. Nauman Abid and Khawaja Sikandar Mehmood Advocates for Complainant.
Date of hearing: 1.2.2022.
PLJ 2022 Cr.C. 1321
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD JUNAID etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 71704 & 71699 of 2017, heard on 1.2.2022.
Judgment
Muhammad Junaid and Zahid Kareem appellants in the titled appeals along with their co-accused namely Mohsin Raza (since acquitted) and Khaliq-ur-Rehman (since P.O) were tried by the learned trial Court in case FIR No. 228 dated 30.07.2015 for offences under Sections 376, 452, 384, 506-ii, PPC registered at Police Station Galiana District Gujrat and at the conclusion of trial vide judgment dated 22.07.2017, convicted and sentenced the appellants as under:-
Muhammad Junaid
Under Section 376(ii), PPC
Life imprisonment with fine of Rs. 100,000/-and in case of default to further undergo simple imprisonment for six months
Under Section 452, PPC
Three years R.I. with fine of Rs. 30,000/-and in default thereof to further undergo six months S.I.
Under Section 384, PPC
One year R.I.
Zahid Kareem
Under Section 376(ii), PPC
Life imprisonment with fine of Rs. 100,000/- and in case of default to further undergo simple imprisonment for six months
Under Section 452, PPC
Three years R.I. with fine of Rs. 30,000/-and in default thereof to further undergo six months S.I.
Under Section 384, PPC
One year R.I.
The supra mentioned sentences were ordered to run concurrently.
Benefit of Section 382-B, Cr.P.C. was also extended to them
Feeling aggrieved, the appellants have filed the titled appeals against their convictions and sentences.
2. The facts of the case have been stated by Jaabar Hussain complainant (PW-1) in his statement before the learned trial Court, which is reproduced as under:-
“On 22.07.2015 I was in Saudi Arabia, at midnight about 1.00 am my wife telephonically informed me that they were sleeping in their verandha of our house. There was a knocking at the outer door of the house, we did not open the door. Afterwards Zahid armed with 30 bore pistol, Junaid armed with 30 bore pistol, Mohsin Shah present in the Court and Khaleeq-ur-Rehman(Since PO) all armed with 30 bore pistols entered in our house by scaling over the roof. Junaid and Zahid get hold my daughter Shaista Andleeb and asked her to go to Havily, she resisted upon which my wife Mst. Fahmida Shehnaz was locked in a separate room by Mohsin Shah and Khaliq-ur-Rehman accused. After taking her to Baithak of our house the accused Junaid and Zahid present in the Court enforced her to remove her clothes upon which the accused torn her shirt. Firstly Zahid accused committed Zina with her and Juanid accused took her picture and video. Thereafter Junaid accused committed Zina with her and Zahid took her picture and video. My daughter begged the accused for non-commission of offence but in vain and they forcibly committed the zina with my daughter. My daughter came out from the Baithak and un-bolted the door of the room in which my wife was locked by Mohsin and Khaleeq-ur-Rehman co-accused persons and my wife came out of the room. My daughter narrated about this occurrence to her mother. The accused persons threatened them of dire consequences if they informed any one about this occurrence. After this occurrence I tried to come to Pakistan as soon as possible. (It has been objected by defence counsel that above said evidence is a hearsay evidence and same is admissible). This objection shall be resolved at the time of final arguments). On 30.07.2015 at about 11.00 am I reached at my house. On 23.07.2015 at night time my wife telephoned me that the same accused persons again knocked their door but we did not open the door and also extended threats to us of dire consequences. On 30.07.2015 when I came to Pakistan, I went to P.S Gulyana and moved the application Ex.PA for registration of FIR.”
3. Arguments heard and record perused.
4. As per contents of FIR, the alleged incident of rape with Shaista Andleeb took place on 22.07.2015 at 01:00 a.m but the matter was reported to the police on 30.07.2015 i.e with the delay of 8 days. The distance between the police station and the place of occurrence was 7 kilometers. No plausible explanation for the aforesaid delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed upon case laws titled as “Haider Ali vs. The State” (2016 SCMR 1554), “Muhammad Siddique vs. The State and others” (2019 SCMR 1048).
5. I have noted that Shaista Andleeb victim (PW.2) was medically examined on 01.08.2015 at 08:50 a.m by Doctor Fatima Niazi (PW.4) i.e with the delay of 9 days and 8 hours. There is no exegesis qua the delay in getting medical examination of Shaista Andleeb victim (PW.2). I have also observed that medical account runs contrary to the ocular account. According to the statement of Dr. Fatima Niazi (PW.4) “she had not observed any mark of violence on the body of victim”. More so, she (PW.4) deferred her final opinion till the receipt of report of DNA. She further admitted in her cross-examination as under:
“It is correct that the clothes which were worn by victim Shaista Andleeb were not produced before me…..I have not formulated any opinion regarding offence up till now.”
After perusing the report of Punjab Forensic Science Agency (Exh.PT) it manifests that “no seminal material was detection on item#1 and 2; therefore no further DNA profiling (Short Tandem Repeat analysis) was conducted on these items. No analysis was conducted on item# V1 ( buccal swab standards of Shaista Andleeb), S1(Buccal swab standards of Zahid Karim) and S2( Buccal swab standards of Muhammad Junaid).”
The accumulative effect of supra mentioned discussion is that I have no hesitation to hold that the ocular account is not synchronized with the medical account. Guidance can be sought from the case laws titled as “Muhammad Amir vs. The State and another” (2018 YLR 2592), “Muhammad Javed vs. The State” (2019 SCMR 1920).
6. Ocular account of prosecution case hinges upon Jaabar Hussain complainant (PW.1), Shaista Andleeb victim (PW.2) and Mst. Fehmida Shahnaz (PW-3). Jaabar Hussain complainant (PW.1) is not eye-witness of the occurrence; his evidence is heresay. So far as the statements of Shaista Andleeb (PW.2) and Mst. Fehmida Shahnaz (PW.3) are concerned; their statements are not worthy of reliance. I have noted that alleged occurrence took place in populated area but not a single independent witness from the vicinity appeared before the investigating officer or the learned trial Court to support the prosecution version. Muhammad Asif, ASI/I.O. (PW12) has stated in his cross examination as under:-
“No any independent person has supported this fact that 4 persons have entered the house of complainant party through roof.”
Moreso, the appellants were not previously known to the supra mentioned PWs. Shaista Andleeb victim (PW-2) has narrated in her cross-examination which reads as under:
“I narrated the story to the lady doctor in my brief history that accused Junaid and Zahid committed zina with me. The whole statement is that “ according to victim on 22.07.2015 at 1.00 am night two boys came to our house to whom I do not know, they were calling each other with the name of Junaid and Zahid who committed Ziadati and made video.”
Similarly, the relevant portion of examination-in-chief of Dr. Fatima Niazi WMO (PW4) is reproduced as infra:
“According to victim on 22.07.2015 at 1.00 a.m. two boys came their house and rape her. According to victim she do not know the boys who were calling each other with the names Junaid and Zahid.”
In the light of above mentioned facts, it is clear that the appellants were not previously known to the prosecution witnesses and identification parade was very much necessary to ascertain the fact that the appellants were the same persons who committed rape with the victim. I fortify my view from the dictum laid down in case tiled as “Saleem and others vs. The State and others” (2021 MLD 1184).
7. Learned counsel for the complainant has argued with vehemence that both the appellants committed rape with Shaista Andleeb victim (PW.2) and also prepared video of rape which was taken into possession by the Investigating Officer, for the reasons, case of prosecution has been fully proved. I am not in agreement with the contention of learned counsel for the complainant because recovered video was shown to Shaista Andleeb victim (PW.2) during her statement before the learned Trial Court and after watching the same, she stated that she is not a girl shown in the video. Relevant portion of her cross-examination hereby described below:
“It is correct that video recording in mobile phone P-1 was shown to me in open Court. In that video the girl shown was not me and I do not know about the boy”.
So far as the statement of Mst. Fehmida Shahnaz (PW.3) is concerned; she is not a witness of alleged rape with Mst. Shaista Andleeb (PW.2). According to the prosecution story, co-accused of the appellants namely Mohsin Shah and Khaliq-ur-Rehman confined Mst. Fehmida Shahnaz (PW.3) in another room and subsequently appellants committed rape with Shaista Andleeb victim (PW.2) in baithak. The attitude of Shaista Andleeb victim (PW.2) and her mother Mst. Fehmida Shahnaz (PW.3) makes the entire prosecution case highly doubtful because they have not made noise after decamping the accused from the place of occurrence. It is also noteworthy that according to narration of FIR (Exh.PE) that on the following day of occurrence i.e 23.07.2015 accused come to the roof top of complainant’s home and made aerial firing but astonishingly none from the neighbors attracted the spot.
8. Another important aspect of this case is that according to the prosecution story, occurrence took place in dark night and no source of light has been described by the prosecution. It is also pertinent to mention here that PWs have not produced any source of light, nor the Investigating Officer has taken into possession any source of light, so as to prove that sufficient light was present at the time and place of occurrence for the witnesses to make a positive identity of the assailants. This fact has created further dent in the prosecution case. The Hon’ble Supreme Court of Pakistan in the case titled as “Gulfam and another vs. The State” (2017 SCMR 1189) has held as under:
“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the Courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The Courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”.
Reference can also be placed upon the case law titled as “Saleem and others vs The State and others” (2021 MLD 1184).
9. I have noted that another intriguing aspect of this case which cannot be lost sight of is that the evidence of prosecution witnesses i.e PW-1 to PW-3 has also been disbelieved by the learned Trial Court through the impugned judgment qua the co-blamed namely Mohsin Raza against whom there was a allegation of intruding the house of complainant, wrongfully confining Mst. Fehmida Shahnaz (PW.3) in a room and extending threats of dire consequences. The evidence of supra mentioned PWs cannot be believed against the present appellants without any corroborative piece of evidence which is lacking in this case. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as “Shahbaz vs The State” (2016 SCMR 1763), “ Nazir Ahmad versus The State” (2018 SCMR 787) “Haroon Shafique versus The State and others” (2018 SCMR 2118), “Munir Ahmad and another vs The State and others” (2019 SCMR 79), “Safdar Abbas and others vs the State and others” (2020 SCMR 219) and “Liaqat Ali and others vs The State and Others” (2021 SCMR 455)
10. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. 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. The Hon’ble Supreme Court of Pakistan in the case of Muhammad Mansha vs The State (2018 SCMR 772) at para No. 4, observed as under:
“4. … Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez V. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)...”
Similar view was taken in the case of “Muhammad Imran vs The State” (2020 SCMR 857). Relevant part of the said judgment at Para No. 5 reads as under:
“… It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction ...”
Reference can also be made to the cases of Najaf Ali Shah vs. The State (2021 SCMR 736) & The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others (2021 SCMR 873).
11. Resume of the above discussion is that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, I accept appeal filed by supra mentioned appellants, set aside their convictions and sentences recorded by the learned
trial Court and acquit them of the charge by extending them the benefit of doubt. Muhammad Junaid and Zahid Karim appellants are in jail, they be released from the jail forthwith if not required in any other case.
(A.A.K) Appeal accepted
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