PLJ 2022 Cr.C. (Note) 129
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 376 & 511--Offence of rape--Conviction and sentence--Challenge to--Benefit of doubt--Evidence--Eye-witness--There are major contradictions in statements, of alleged eye-witnesses and in such circumstances, presence of alleged eye-witnesses at spot seems to be doubtful and story narrated by prosecution witnesses becomes wholly doubtful and they cannot be believed--However, on testimony of alleged eye-witnesses, trial Court has committed error in convicting accused-appellant--Victim was not medically examined--Evidence of PW-1 the complainant, PW-2 the victim and PW-3 eye-witness--They have stated that marks of violence were not present on body of victim--Although incident took place in Javar crop--The above noted facts seriously create dent on prosecution story--Thus prosecution had not been able to prove its case against accused-appellant beyond any shadow of doubt--In these circumstances, accused-appellant deserves benefit of doubt from charges leveled against him--Appeal accepted.
[Para 7 & 9] A & B
2010 SCMR 385.
Appellant in person.
Mr. Ali Hassan, A.P.G for State.
Nemo for Complainant.
Date of hearing: 8.2.2022.
PLJ 2022 Cr.C. (Note) 129
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
ABDUL SATTAR--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 304 of 2016, heard on 8.2.2022.
Judgment
The appellant-Abdul Sattar son of Sahmeer, Caste Joyia, r/o 37/KB, Tehsil Arifwala, District Pakpattan Sharif has faced trial in case FIR No. 217-2015, dated 06.08.2015, registered at Police Station Ahmad Yar, Arif Wala, under Sections 376, 511, PPC. Vide judgment dated 29.01.2016, the learned Additional Sessions Judge, Arif Wala convicted the appellant for offence punishable under Sections 376, 511, PPC. Vide judgment dated 29.01.2016, the appellant was sentenced as under:
Under Section 376/511, PPC Rigorous imprisonment for a period of 02 years and to pay a fine of Rs. 50,000/-. In default of payment thereof, convict shall further undergo simple imprisonment for a period of two months. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial Court, Abdul Sattar, appellant has assailed his conviction through filing instant Criminal Appeal.
3. The brief facts of the case as narrated in the FIR (Exh.PA/2) lodged on the written complaint (Exh.PA) of Mumtaz Ahmad (PW-1) are that on 25.07.2015 at 11:00 a.m. sister of complainant went to fields in order to take fodder. In the meanwhile, the appellant along with co-accused namely Imtiaz came on motorcycle. Appellant caught arm of victim and extended threat to kill in case of raising hue and cry, whereas, Imtiaz watched out at some distance. The appellant after pulled off the Shalwar of the victim/sister of complainant, attempted to commit Zina bil-Jabar with her. On hue and cry of victim, the complainant (PW-1) along with Sher Ali (PW-3) and Muhammad Iqbal (give up PW) came at the spot. Upon arrival of witnesses as well as complainant, the appellant along with co-accused fled away from the spot upon riding the motorcycle.
4. After registration of case, the investigation of this case was conducted by Muhammad Manzoor, A.S.I (PW-4), who Having found the accused/appellant guilty, prepared report under Section 173 Cr.P.C. and sent the accused to Jail by the order of learned Area Magistrate. Thereafter, on 10.11.2015, the learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as four (04) witnesses.
5. The learned trial Court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
6. Heard. Record perused.
7. Prosecution case is, on 25.07.2015 about 11:00 a.m. Irshad Bibi (PW-2), a married woman aged 30 years, left her house to fetch fodder for cattle. The appellant was already there, caught hold of her forcefully, took her to Javar crops. Thereafter as per allegation, put of his shalwar and shalwar of the victim and then tried to rape her. When on the hue and cry of victim woman, the appellant saw Sher Ali, Mumtaz and Iqbal coming, he fled away after on motorcycle. Mumtaz Ahmad (PW-1) the complainant, brother of the victim, reported the incident to police on 06.08.2015 through written application (Ex.PA), whereupon FIR (Ex.PA/2) was registered after twelve (12) days. Mumtaz Ahmad (PW-1) the complainant alleged that he witnessed the incident. Whereas, Irshad Bibi (PW-2) deposed during cross-examination that, “I did not mention in my statement u/S. 161, Cr.P.C. again said that I mentioned in my statement u/S. 161 the PWs Mumtaz, Sher Ali and Iqbal attracted the place of occurrence on raising my hue and cry. Confronted with Ex.DA; where name of Mumtaz has not been mentioned.” Similarly, Sher Ali deposed during cross-examination that, “It is correct that I got recorded the name of Mumtaz (that he was present there complainant to the I.O in my statement u/S. 161 Cr.P.C. Confronted with Ex.DB where it was not found.” Presence of Mumtaz Ahmad (PW-1) the complainant at the time of incident has become doubtful. In the circumstances, I have straightway come to the material improvements/discrepancies/ contradictions in the prosecution evidence brought on the record by the defence. Mumtaz Ahmad (PW-1)-the complainant, deposed during cross-examination that, “Javar crop was erected over 1.5 acre at the time of occurrence. The said Javar crop was erected in Killa No. 13 and square No. 53 at the time of occurrence and I mentioned the said Killa and square No. in my application Ex.PA. Confronted; with Ex.PA not found”. Mumtaz Ahmad (PW-1) the complainant, further deposed during cross-examination that, “It is correct that in my application Ex.PA, I have mentioned that the accused persons fled away on their motorcycle, while in my PW-1 statement I have mentioned that the accused persons fled away from the place of occurrence.” Irshad Bibi (PW-2) deposed during cross-examination that, “I raised hue and cry at the time of occurrence and I also mention the same in my statement u/S. 161, Cr.P.C. Confronted with Ex.DA; not found. It is correct that accused Imtiaz stood nearby while watching around and I also mentioned the same in the statement u/S. 161 , Cr.P.C. Confronted with Ex.DA; not found………. It is correct that I mentioned in my statement u/S. 161 Cr.P.C. that accused persons fled away on their motorcycle. Confronted with Ex.DA; where it was not found.” Similarly, Sher Ali (PW-3) deposed during cross-examination that, “It is correct that I got recorded to the I.O that the accused persons fled away on their motorcycle. Confronted with Ex.DB, where it was not so recorded.” Muhammad Manzoor AS I (PW-4) deposed during cross-examination that, “It is correct that during my investigation, the arrival of the accused persons on the motorcycle at the spot of occurrence, has not been proved.” Thus, it becomes clear that there are major contradictions in the statements, of alleged eye-witnesses and in such circumstances, presence of the alleged eye-witnesses at the spot seems to be doubtful and the story narrated by the prosecution witnesses becomes wholly doubtful and they cannot be believed. However, on the testimony of alleged eye-witnesses, the trial Court has committed error in convicting accused-appellant. The Hon’ble Supreme Court of Pakistan in the case of “Muhammad Rafique and others v. The State and others” (2010 SCMR 385) has held as under:
“This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 reiterating. The above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence.”
8. This fact creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Mumtaz Ahmad (PW-1)-the complainant, Irshad Bibi (PW-2)-the victim and Sher Ali (PW-3)-eye-witness. Therefore, I do not think it safe to rely on the evidence of these eye-witnesses. This also creates doubt about the genuineness of the version given by Mumtaz Ahmad (PW-1)-the complainant, Irshad Bibi (PW-2)-the victim and Sher Ali (PW-3)-eye-witness.
9. On the other hand as per prosecution case incident took place in Javar crops. Mumtaz Ahmad (PW-1)-the complainant, further deposed during cross-examination that, “Javar crop was erected over 1.5 acre at the time of occurrence. The said Javar crop was erected in Killa No. 13 and square No. 53 at the time of occurrence and I mentioned the said Killa and square No. in my application Ex.PA. Confronted; with Ex.PA not found….. We could not be seen, while standing at the place of occurrence on the day of currence because of the erection of crop…… It is correct that we did not get the victim medically examined. I did not see myself any mark of violence on the body of victim”. Irshad Bibi (PW-2) deposed during cross-examination that, “It is correct that no mark of violence were found on my person during the occurrence. It is correct that my clothes had not been torn during the occurrence and I did get myself medically examined”. Similarly, Sher Ali (PW-3) deposed during cross-examination that, “No mark of violation was observed on the body of Irshad Bibi during this occurrence and the clothes of victim were not torn out. Irshad Bibi victim did not medically examine”. Muhammad Manzoor ASI (PW-4) deposed during cross-examination that, “It is correct that the victim did not hand over me any medical certificate. It is also correct that the victim did not hand over to me, her worn clothes at the time of occurrence.” The learned Law Officer has also admitted that victim was not medically examined. 1 have carefully gone through the evidence of Mumtaz Ahmad (PW-1)-the complainant, Irshad Bibi (PW-2)-the victim and Sher Ali (PW-3)-eye-witness. They have stated that the marks of violence were not present on the body of victim. Although incident took place in Javar crop. The above noted facts seriously create dent on the prosecution story. Thus the prosecution had not been able to prove its case against Abdul Sattar-accused-appellant beyond any shadow of doubt. In these circumstances, Abdul Sattar, accused-appellant deserves benefit of doubt from the charges leveled against him.
10. In the light of above discussion, I am of the affirm view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, I accept the instant Criminal Appeal No. 304 of 2016 filed by Abdul Sattar-the appellant, set aside his (the appellant) conviction and sentence recorded by the learned Additional Sessions Judge, Arifwala vide judgment dated 29.01.2016 and the appellant-Abdul Sattar son of Shameer is acquitted of the charge in case F.I.R. No. 217 of 2015, dated 06.08.2015, under Sections 376/511, P.P.C., registered at Police Station Ahmad Yar, Arifwala, District Pakpattan. The appellant-Abdul Sattar is on bail, therefore, his bail bonds stand discharged.
(A.A.K.) Appeal accepted
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