PLJ 2023 Cr.C. 337
[Islamabad High Court, Islamabad]
Present: Tariq Mehmood Jahangiri, J.
versus
STATE--Respondent
J.A. No. 54 of 2021, decided on 6.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376(1)--Conviction and sentence--Challenge to--Most important factor is statement of victim recorded u/S. 164 Cr.P.C, wherein victim has categorically stated that when she informed her parents regarding alleged occurrence, parents of accused called, a “Jirga” was conducted and it was decided that sister of accused will be taken but uncle of accused refused--Motive behind registration of instant case seems to be failure of implementation of decisions of Jirga, wherein it was decided that sister of accused will marry with complainant, so this fact has demolished whole story of case--The prosecution case has become doubtful and motivated--There is absolutely no evidence on record of any struggle having taken place, nor were marks of any injury found on person either of victim or of accused, therefore, rape has not been proved to have been committed upon prosecutrix--Conviction u/S. 376(1) is concerned, question of age of girl is always becomes of greater importance but in instant case, there is no evidence that girl is under-age neither victim herself nor her father, mother or doctor stated said fact in their evidence--The important question that victim was under-age has never been put to accused in statement recorded u/S. 342 Cr.P.C--even said allegation has not been made in charge framed by Court--Age of victim is mentioned as 16 years in Medico Legal Report however, no reasons whatsoever have been mentioned that on basis of which evidence, said age was written--Statement of victim is not supported by report of DNA as well as by MLR or statement recorded by doctor that no mark of any injury on her body was found; she herself washed clothes and remained silent for 04 days in a small house where she was living with her parents, four brothers and two sisters--As important questions of underage and opinion of gynecologist etc. were not put to petitioner/accused in statement recorded u/S. 342 Cr.P.C., conviction cannot be based upon said evidence--Prosecution has failed to prove its case against appellant beyond a reasonable doubt--There are so many defects and contradictions in prosecution case/evidence; thus, prosecution case appears to be doubtful and benefit of same should be extended in favour of appellant--Appeal allowed.
[Pp. 344, 345, 346 & 347] A, B, C, D, E, F G & H
2016 SCMR 1554, 1996 PCr.LJ 1161, PLD 1966 Lahore 220,
PLD 2012 SC 380 & 2022 MLD 752 ref.
Mr. Shahbaz Shah, Advocate for Appellant.
Syed Muhammad Tayyab, Advocate for Respondent.
Date of hearing: 13.1.2023.
Judgment
Through this judgment, I intend to decide abovementioned jail appeal received through Superintendent of Central Jail, Rawalpindi, against the judgment dated 01.02.2021, passed by learned Additional Sessions Judge, West Islamabad/GBV Court East/West, Islamabad, whereby appellant was convicted in case F.I.R. No. 270/2018, dated 07.06.2018, under Section 376, P.P.C., Police Station Golra Sharif, Islamabad and sentenced to life imprisonment with fine of one lac (Rs.100,000/-). In default of payment of fine the accused shall undergo six (06) months S.I. Benefit of Section 382-B, Cr.P.C was extended to him.
2. Succinctly stated facts of the case are that complainant Muhabat Shah, father of the victim (Mst. Kiran Bibi) reported the matter to the police that on 07.06.2018, he along with his wife was present in his house, in the meantime, his elder daughter Mst. Kiran Bibi started crying at once, on which he inquired that what is the matter, whereupon she informed that on 03.06.2018, she was alone in her house and her relative namely Hussain Shah s/o Riaz Shah forcibly raped her and threatened not to disclose the event. Due to fear and respect of parents, she remained silent. The complainant moved complaint and F.I.R Ex.PF was registered.
3. After registration of the case, the accused was arrested, investigated and was challaned. After receiving the challan and fulfillment of procedural requirements the accused was charge sheeted, he pleaded not guilty of the charge and claimed trial. Thus prosecution evidence was summoned and recorded.
4. Prosecution produced following witnesses in support of its case:
PW-1 Mst. Kiran Bibi victim of the case.
PW-2 Mst. Aasia Bibi mother of victim/PW-1. She went along with her husband Muhabat Shah and daughter to police station for registration of instant case.
PW-3 Dr. Hina Azad CMO PIMS She initially examined the victim and after receiving of opinion of expert gynecologist, she prepared final MLR dated 07.06.2018, Ex.PA.
PW-4 Kafait Ullah 3018/HC he along with I.O Tanveer Hussain ASI, Bushra Nawaz LHC, Mst. Kiran Bibi, her father and mother went to the place of occurrence on 07.06.2018.
PW-5 Nawazish Ali, ASI Moharrar. He handed over six sealed parcels intact to Tanveer Hussain ASI on 12.06.2018.
PW-6 Muhabat Shah Complainant/father of victim Mst. Kiran Bibi.
PW-7 Ms. Umbreen Iqbal Chaudhary Magistrate. She recorded statement of PW-1 Mst. Kiran Bibi under Section 164 Cr.P.C.
PW-8 Tanveer Hussain, ASI Investigating Officer of the case.
PW-9 Dr. Irshad Hussain, MLO PIMS He examined the accused Hussain Shah, collected his blood for DNA, made sealed parcel of blood sample and handed over to the police.
5. The accused was examined under Section 342, Cr.P.C., whereby he neither opted to produce evidence in his defense nor to appear as a witness under Section 340(2), Cr.P.C.
6. After completion of trial, the accused was convicted and sentenced as mentioned above, hence the instant appeal.
7. Learned trial Court in the impugned judgment has already discussed the facts of the case as well as the evidence in detail and there is no need to repeat the same to avoid duplication and unnecessary repetition.
8. Learned counsel for the appellant, inter alia, contends that the accused is innocent; he has not committed any offence; prosecution has not produced any legal and cogent evidence; there are material contradictions in the statements of prosecution witnesses; he has remained in prison for a considerable time; impugned judgment is erroneous; he has no previous criminal history; he is liable to be acquitted from all the charges and is entitled to be released in the instant case.
9. Learned counsel for the complainant contends that prosecution has produced sufficient incriminating evidence to link the appellant with the commission of offence, as such, the learned trial Court has rightly appreciated each and every aspect of the case and has rightly sentenced the appellant vide the impugned judgment and has prayed for the dismissal of instant jail appeal.
10. Learned state counsel supported the contentions of learned counsel for the complainant.
11. Arguments heard, record perused.
12. There are material contradictions in the statements of PWs which are as under:
Recovery of Bed Sheet:
i. PW-1/Kiran Bibi, victim stated in her examination-in-chief that her father handed over to police blood stained bed sheet lying thereon.
ii. Whereas, PW-6/Muhabat Shah, father of victim stated that he produced blood stained bed sheet to police and police collected blood stained piece of the said bed sheet and made into sealed parcel.
iii. PW-4/Kafiat Ullah, Head Constable stated that I.O took the said bed sheet in possession vide sealed parcel through recovery memo. Ex.PB.
iv. PW-08/I.O stated that he took into possession a blood stained bed sheet vide recovery memo. Ex.PB.
v. It is mentioned in recovery memo. Ex.PB that complainant alongwith his daughter produced a blood stained bed sheet, a piece was cut, parcel was prepared and said piece was secured vide Ex.PB.
vi. Three PWs have stated that bed sheet was recovered by the I.O vide recovery memo. Ex.PB, whereas recovery memo. Ex.PB mentioned that recovery of piece of bed sheet which was cut at the spot, whereas the site plan Ex.PH prepared by the I.O reflects that bed sheet was produced by victim and its piece was cut by I.O.
Recovery of Clothes/Shalwar & Qameez of Victim:
i. It is mentioned in the recovery memo. Ex.PC that victim produced her Shalwar Qameez to the I.O which were secured through recovery memo. Ex.PC.
ii. PW-06, Muhabat Shah/father of the victim stated in his examination-in-chief that he produced clothes of Kiran Bibi i.e. brown color Shalwar Qameez to the I.O who made them into sealed parcel vide recovery memo. Ex.PC.
iii. PW-04/Kafiat Ullah stated in his examination-in-chief that father of the victim/PW-06 produced washed clothes of victim i.e. Shalwar Qameez to the I.O which was taken into possession vide recovery memo. Ex.PC.
iv. PW-08/I.O, Tanveer Hussain stated that on pointation of complainant he took into possession the last worn washed clothes of victim vide recovery memo. Ex.PC.
v. In site plan Ex.PH, I.O has mentioned that clothes were produced by the victim herself which were taken into possession vide recovery memo. Ex.PC.
Whereabouts of parents of the victim:
PW-01/Kiran Bibi has stated in her examination-in-chief that on the date of occurrence her parents have gone to the house of her relatives, whereas PW-06/Muhabat Shah, father of the victim stated that he on the day of occurrence had gone for his job.
Presence of Mobile Phone:
i. PW-02/Mst. Asia Bibi, mother of the victim has stated that her daughter had no mobile phone and even there is no mobile phone in their house. She further stated that there are two (02) rooms in their house and bed was used by her daughter exclusively.
ii. PW-06/Muhabat Shah, father of the victim has stated that he had another mobile phone at his home except his own mobile phone and also admitted that mobile phone available at home was usually used by his wife (Mst. Asia Bibi), whereas PW-02/Asia Bibi has categorically denied presence/availability of any mobile phone at her home.
Deposit of Parcels in DNA Lab by Tanveer Hussain, I.O:
i. PW-05/Nawazish Ali/ASI, Moharrar has stated that he handed over six sealed parcels to Tanveer Hussain, ASI on 12.06.2018.
ii. DNA report also narrates that parcels were brought by Tanveer Hussain, ASI but he has not uttered even a single word in his examination-in-chief or cross-examination that parcels were handed over to him by Nawazish Ali, Moharrar and he took the same to Punjab Forensic Science Agency on 12.06.2018.
Rooms of House:
PW-02/Mst. Asia Bibi has stated that there are two rooms in her house, whereas PW-04/Kafiat Ullah stated that there are three (03) rooms in the house. PW-06/Muhabat Shah, father of victim has also stated that there are three rooms in the house, whereas Site Plan Ex.PH mentions two rooms in the house.
Taking of victim for recording of statement under Section 164 Cr.P.C:
PW-07/Ms. Umbreen Iqbal, learned Magistrate has stated that on 08.06.2018, the victim was brought along with her father for recording statement under Section 164, Cr.P.C, whereas father of the victim/PW-06 has not narrated a single word that he accompanied the I.O for taking her daughter to the learned Magistrate for recording of statement under Section 164, Cr.P.C.
13. DNA Profile issued by Punjab Forensic Science Agency, Government of Punjab is as under:
i. It is concluded in the DNA report issued by the Punjab Forensic Science Agency, Home Department, Government of Punjab that:
a. Seminal material was found on Item # 5.1 (stain section taken from the piece of cloth).
b. Human blood was identified on Item # 5.1 (stain section taken from the piece of cloth).
c. Trace number of spermatozoa were identified on item # 2 (one high vaginal swab from Kiran Bibi)
ii. It is further mentioned that sperm and epithelial fractions of item # 5.1 (stain section taken from the piece of cloth) matched the DNA profile of Hussain Shah, Accused (item # 4)
iii. It is mentioned that DNA profile obtained from the epithelial and sperm fractions of Item # 2 (one high vaginal swab from Kiran Bibi) are partial and inconclusive.
iv. No seminal material was found on Item # 1, 6.1-6.10 and 7.1-7.5, (“Shalwar” and “Qameez” of Kiran Bibi). Therefore, no DNA analysis was conducted.
v. DNA is only positive to the extent that human blood of the accused was found on the piece of cloth. It is quite astonishing that how the bed sheet was stained with human blood of the accused/appellant and how the same remained lying on the bed for about 04 days in the house of complainant.
14. It is metioned in Question No.5 of statement recorded under Section 342, Cr.P.C. that:
“The DNA profile on stain section of Shalwar of victim has been matched with the DNA profile of Hussain Shah. Hence, the DNA report is positive.”
The above said question is against the facts of the case because stain sections taken from the “Shalwar” and “Qameez” of Mst. Kiran Bibi are numbered as Item # 06 and sub-item # 6.1-6.10. It is also mentioned in the said DNA report that no seminal material was found on item # 6.1-6.10 and 7.1-7.5, therefore, no further DNA analysis (Short Tandem Repeat profiling) was conducted on these items. The question put to the accused was not according to the actual facts, hence the DNA report was not positive.
15. The alleged occurrence took place on 03.06.2018 at 12 p.m Noon (daytime) whereas, victim remained silent for about 04 days without any plausible explanation and narrated the story to her parents on 07.06.2018.
16. It is quite surprising that on the date of occurrence, victim washed her clothes upon threats issued by the accused/appellant but blood stained bed sheet remained lying on the bed for 04 days.
17. It is in the evidence that house of complainant consists upon two rooms; there are seven (07) children of complainant and total number of persons including complainant and his wife become nine (09) who were living in house of two rooms, so it is not possible that during the period of 04 days neither someone has noticed blood stains on the bed sheet nor the same was changed/replaced or removed by anyone.
18. PW-01/Kiran Bibi/victim has alleged that the accused committed rape with her forcibly by shutting her mouth with his hands; he forcibly removed her clothes against her will but on the other hand she states that she washed her clothes under compulsion of accused and further stated that “No injuries were made during efforts of resistance”.
19. In Medico Legal Report Ex.PA, it is mentioned that no bruises/laceration were found on perineal examination; no name of relative or friend who accompanied the victim is mentioned in MLR Ex.PA. Two identification marks of victim are not mentioned in relevant columns.
20. PW-03/Dr. Hina Azad, CMO PIMS Islamabad has stated in her examination-in-chief that:
“As per opinion of gynecologist, 0.5-1 cm laceration was noted on posterior aspect of fourchette and hymen was absent.”
She has mentioned about expert opinion of gynecologist but neither the name of gynecologist nor opinion given by her is on record. She (gynecologist) was not produced as witness in the case.
21. Most important factor of the instant matter is the statement of victim/Kiran Bibi Ex.PE recorded under Section 164 Cr.P.C, wherein the victim has categorically stated that when she informed her parents regarding alleged occurrence, parents of Hussain Shah/accused called, a “Jirga” was conducted and it was decided that sister of the accused will be taken but uncle of Hussain Shah refused.
22. Motive behind registration of instant case seems to be the failure of implementation of decisions of Jirga, wherein it was decided that sister of the accused will marry with complainant, so this fact has demolished the whole story of the case. The prosecution case has become doubtful and motivated.
23. In a case titled as “Haider Ali and others v. The State” 2016 SCMR 1554, the accused was acquitted when the victim of alleged rape had not received any marks of violence on any part of her body nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to the accused. It is also held in a case titled as “Idrees Masih v. The State” 2022 YLR Note 40 [Sindh] that though a conviction could well be recorded on sole statement of victim but only if same finds corroboration as well appear natural and confidence inspiring.
24. It has been held by the Hon'ble Federal Shariat Court in case titled as “Mst. Ehsan Begun v. The State” (PLD 1983 FSC 204) that:
“As facility of grouping of semen is available in Pakistan, therefore, the Medical Officer while examining the male for potency purposes should obtain the specimen of semen so that it be sent for grouping and matching with the semen if secured from the person/body of the vaginal swab of the victim.”
Another Judgment titled “Abid Javed alias Mithu v. The State” (1996 PCr.LJ 1161) it has been observed by the Hon'ble Federal Shariat Court of Pakistan that:
“Vaginal swabs of the victim girl were found to be semen stained by the Chemical Examiner, but the report on the swab sent to the Serologist for semen grouping was not produced in Court and the Chemical Examiner's report had lost its evidentiary value”
25. There is absolutely no evidence on the record of any struggle having taken place, nor were marks of any injury found on the person either of the victim or of the accused, therefore, rape has not been proved to have been committed upon the prosecutrix. Reliance is placed on a case reported as PLD 1966 Lahore 220.
26. As far as conviction under Section 376(1) is concerned, the question of age of girl is always becomes of the greater importance but in the instant case, there is no evidence that girl is under-age neither the victim herself nor her father, mother or doctor stated the said fact in their evidence.
27. The important question that victim was under-age has never been put to the accused in statement recorded under Section 342, Cr.P.C. even the said allegation has not been made in the charge framed by the Court. Age of the victim is mentioned as 16 years in Medico Legal Report Ex.PA, however, no reasons whatsoever have been mentioned that on the basis of which evidence, the said age was written.
28. Statement of the victim is not supported by the report of DNA as well as by the MLR or statement recorded by doctor that no mark of any injury on her body was found; she herself washed the clothes and remained silent for 04 days in a small house where she was living with her parents, four brothers and two sisters.
29. As the important questions of underage and opinion of the gynecologist etc. were not put to the petitioner/accused in the statement recorded under Section 342, Cr.P.C., the conviction cannot be based upon the said evidence. In this regard, guidance has been sought from the dictum laid down in a case titled as “Ameer Zeb v. The State” (PLD 2012 Supreme Court 380), by the Hon’ble Supreme Court of Pakistan, wherein it has been held that:
“It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution”.
30. The same principle has been laid down in a case titled as “Qaddan and others vs. The State” (2017 SCMR 148), wherein it has been held by the Hon’ble Supreme Court of Pakistan that:
“The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under Section 342, Cr.P.C. cannot be considered against him”.
31. It has also been held by the Hon’ble Supreme Court of Pakistan in a case titled as “Mst. Anwar Begum vs. Akhtar Hussain alias Kaka and 2 others” (2017 SCMR 1710) that:
“It is well settled by now that a piece of evidence not put to an accused while examining him under Section 342, Code of Criminal Procedure cannot be used against him for maintaining his conviction”.
Reliance is also placed upon a case reported by this Court titled as “Mazhar Iqbal v. The State and another” (2022 MLD 752).
32. In view of above, coupled with the other above mentioned reasons, I hold that in this case the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. There are so many defects and contradictions in the prosecution case/evidence; thus, the prosecution case appears to be doubtful and benefit of the same should be extended in favour of the appellant. In this regard, the principle laid down by the Hon’ble Supreme Court of Pakistan in the following cases:
i. “Atif Zareef and others v. The State” (PLD 2021 SC 550)
“The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. Releasing a guilty by mistake is better than punishing an innocent by mistake. We, therefore, accept this appeal to the extent of appellant Nafees Ahmad, set aside his conviction and sentence, and acquit him of the charge by extending him the benefit of doubt.” (emphasis added)
ii. “Bashir Muhammad Khan v. The State” (2022 SCMR 986)
It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Reliance is also placed on case titled as “Tariq Pervaiz v. The State” (1995 SCMR 1345).
iii. “Muhammad Aslam vs. The State” (2011 SCMR 820)
“It is well settled legal principle regarding dispensation of justice in criminal case that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party”.
33. As per report submitted by Superintendent Central Jail Rawalpindi, the appellant has served total sentence including
remission earned, for more than 06 years and his probable date of release is fixed as 29.06.2042, subject to payment of fine.
34. In view of the above, instant appeal is allowed, judgment dated 01.02.2021, passed by learned Additional Sessions Judge, West Islamabad/GBV Court East/West, Islamabad is hereby set aside and by extending the benefit of doubt, the appellant is acquitted from the charge in case FIR No. 270/2018, dated 07.06.2018, offence under Section 376, P.P.C., registered at police station Golra Sharif, Islamabad and he is ordered to be released forthwith, if not required in any other case.
(A.A.K.) Appeal allowed
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