PLJ 2023 Cr.C. (Note) 262
[Lahore High Court Multan Bench]
Present: Shakil Ahmad, J.
AMIR SHAH--Appellant
versus
STATE and another--Respondents
Crl. A. No. 460 of 2020, heard on 21.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Rape--Improved statement--Medical examination--Swabs to PFSA--delay of 15 days--Sole testimony of Prosecutrix--No definite opinion of medical evidence--DNA report--No recovery--No independent corroboration--Criminal Appeal--Acquittal of--Complainant in his examination-in-chief improved his version--By improving his version qua accompanying of his other children with his wife--In fact made an attempt to establish that none of his other children was at home at the time of occurrence--Story narrated in the FIR and deposed by the PWs as to the mode of entry of accused persons in the house of complainant and their departure after the occurrence in presence of three witnesses including the complainant, does not appear to the natural--Both the independent witnesses namely did not support the stance of complainant and victim as they were given up being won over the accused--Victim was medically examine--two external and two internal vaginal swabs were taken, made into sealed parcels--However, one external and one internal vaginal swabs were received at PFSA--After delay of 15-days and where these swabs remained for 15-days is a question that cannot be answered from the whole prosecution evidence and same creates doubt qua proper and safe handling as well as custody of sample parcels--Chain of safe custody and safe transmission of sample parcels has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused--Sole testimony of the prosecutrix should be accepted, is not an absolute rule--Women Medical Officer did not give definite opinion that the victim girl was subjected to rape--Presence of two witnesses was claimed alongwith the complainant when he entered the house and claimed to have seen the appellant--Both the said witnesses were given up--No independent corroboration worth its name was available to the extent of commission of rape with victim girl--During investigation no recovery whatsoever was effected from the appellant--Prosecution has hopelessly failed to prove its case against appellant beyond the shadow of a reasonable doubt--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--There is no need of so many doubts in the prosecution case--Findings of conviction recorded against appellant by trial court in the impugned judgment are not sustainable, which are hereby set aside--Appellant is acquitted.
[Para 7, 9, 10 & 11] A, B, C, D, E, F, G, H, I
2021 SCMR 363; 2019 SCMR 1300; 2018 SCMR 2039; 2015 SCMR 1002; 2012 SCMR 577; PLD 2011 SC 554; 2019 SCMR 129 ref.
Khawaja Qaisar Butt, Advocate for Appellant.
Mr. Muhammad Umar Farooq, Additional Prosecutor General for State.
Date of hearing: 21.2.2023.
Judgment
This criminal appeal has been directed against judgment dated 30.09.2020 passed by the learned Additional Sessions Judge-I, Shuja-abad, whereby appellant was convicted under Section 376, PPC and sentenced to undergo rigorous imprisonment for ten years with fine Rs. 1,00,000/- to be paid to the victim under Section 544-A, Cr.P.C., or in default, to further undergo simple imprisonment for six months. Appellant was also convicted under Section 449, PPC and was sentenced to undergo rigorous imprisonment for five years with fine Rs. 50,000/- , or in default, to further undergo six months SI. He was indicted and tried along with Sajid co-accused for the offences under Sections 376, 449, PPC in case FIR No. 219 of 2018 dated 20.06.2018 registered at Police Station Saddar, Shuja-abad. On conclusion of trial, appellant was convicted and sentenced as mentioned above, hence this appeal. Co-accused Sajid was acquitted of the charge, however, no appeal against acquittal of said co-accused is before this Court.
2. Muhammad Ishaq complainant moved written application Ex.PA before SHO Police Station Saddar, Shuja-abad on 20.06.2018, on the basis of which FIR was registered for the offence under Section 376, PPC. As per contents of application Ex.PA, complainant was a labourer and permanent resident of mauza Basti Mithhu Tehsil Shuja-abad District Multan. On 19.06.2018 at 12:00 p.m., complainant was out of his house whereas his wife went to her relatives at Bahawalpur. Complainant’s daughter Mst. Sonia Bibi aged about fourteen-fifteen years was alone in house and was busy in household work when all of sudden Aamir (appellant) and Sajid (co-accused since acquitted) both armed with pistols .30-bore entered the complainant’s house by scaling over the northern wall of the house and caught complainant’s daughter in the kitchen and by pointing arms, threatened her of life. Aamir forcibly put complainant’s daughter on the ground, removed her shalwar; also removed his own shalwar and started committing rape whereas Sajid accused kept on guarding outside. On hearing hue & cry of complainant’s daughter, complainant along with Muhammad Mushtaq and Ramzan and others entered the house by opening the outer door and saw that Aamir was committing rape with complainant’s daughter inside the kitchen. On seeing the complainant and witnesses accused persons Aamir and Sajid by brandishing the arms fled towards north by scaling over the wall. Complainant informed rescue 15, whereupon police reached the spot and inspected the spot.
3. Mushtaq Ahmad ASI (PW-7) claimed to have reached the spot in response to call at rescue 15 on 19.06.2018 at 12:15 p.m. and sent Mst. Sonia Bibi for medical examination after preparing docket Ex.PC. After registration of FIR, investigation of this case was conducted by Safdar Naseer SI ‘(PW-6), who claimed to have inspected the spot, prepared site-plan Ex.PD, recorded statements of the complainant and PWs under Section 161, Cr.P.C. took into possession clothes of the victim girl through recovery memo Ex.PE, arrested the accused, got conducted DNA analysis as well as potency test of the accused/appellant. On completion of investigation report under Section 173, Cr.P.C. was submitted. Charge was framed against appellant and co-accused Sajid. They pleaded not guilty and the trial commenced.
4. Muhammad Ishaq complainant appeared in the witness-box as PW-1 and Mst. Sonia Bibi victim as PW-2. Dr. Saqib Hassan Khan (PW-3) conducted potency test of the appellant. Zahid Hussain 3618/HC (PW-4) chalked formal FIR Ex.PA/1. Victim girl was medically examined by Dr. Kiran Mushtaq (PW-5). Learned ADPP gave up PWs Mushtaq Ahmad and Mohammad Ramzan as having been won over by the accused and closed the prosecution evidence after tendering PFSA reports Ex.PG and Ex.PH. Thereafter, statements of accused were recorded under Section 342, Cr.P.C. They did not opt to appear in the witness box as required under Section 340(2) Cr.P.C, however, appellant tendered certain documents in his defence. In reply to the question why this case against him and why PWs had deposed against him, appellant took the following stance:
“I am totally innocent. There was long standing enmity between my father and the complainant Muhammad Ishaq. Prior to the occurrence complainant fraudulently got whole property of my grandfather in his name and deprived remaining all the legal heirs including sons and daughters and on this my father deadly opposed to the complainant by moving applications to the high rank revenue authorities. Resultantly, when case was going to be registered against the complainant and due to that grudge he got this case registered against me and Sajid. Not only this mother of the victim also leveled allegation against my father about committing Zina with her but in this connection “Panchayat” was convened and my father gave “SAFAI holding the Holy Quran in the Mosque in presence of respectable persons of brotherhood. I am totally innocent. Nothing was recovered in form of bangle from the place of Occurrence”.
5. On conclusion of trial, appellant was convicted and sentenced as detailed in the opening paragraph of this judgment, hence this appeal.
6 I have heard learned counsel for the appellant as well as learned APG and perused the record with their able assistance.
7. As per contents of FIR, on 19.06.2018 at 12:00 p.m. when complainant was out of his house and his wife went to Bahawalpur and complainant’s daughter Mst. Sonia Bibi was alone in her house, appellant along with co-accused Sajid entered the house by scaling over the outer wall and the appellant committed rape with Mst. Sonia Bibi by forcibly putting her on the ground in the kitchen by threatening him on gun point whereas Sajid co-accused kept on guarding outside and when complainant and PWs Muhammad Mushtaq and Ramzan attracted to the spot on hearing hue and cry of Mst. Sonia Bibi, they saw the appellant while committing rape and then both the accused fled away by scaling over the wall again. During the course of evidence it surfaced that complainant had ten children who all were living in the same house, however, in the FIR, there was no mentioning as to where the other children of complainant were at the time of occurrence and only it was mentioned that his wife had gone to Bahawalpur. While appearing in the witness box as PW-1, (complainant in his examination-in-chief improved his version by stating that his wife and other children had already gone to Bahawalpur. By improving his version qua accompanying of his other children with his wife to Bahawalpur complainant PW-1 in fact made an attempt to establish that none of his other children was at home at the time of occurrence. In the F.I.R Sajid co-accused is shown to have been guarding outside when appellant was committing rape with Mst. Sonia Bibi in the kitchen. Except that, no detail whatsoever of any role or act of Sajid co-accused during the occurrence has been specified in the F.I.R. Likewise, in the F.I.R it is mentioned that when complainant and PWs entered the house, accused persons Aamir and Sajid fled away by scaling over the outer wall of the house while brandishing arms, however, complainant PW-1 in his examination-in-chief improved his version to the effect that when he along with PWs entered the house after hearing hue and cry of his daughter, Sajid co-accused who was standing on watch, cautioned the appellant and fled away from the spot by scaling over the northern wall and then appellant after taking his clothes and pistol also fled away. In this way, an attempt was made by complainant PW-1 to explain presence and role of Sajid co-accused in the occurrence. In his examination-in-chief, PW-1 also claimed to have tried to catch the appellant whereas in the FIR it was nowhere mentioned that complainant or the PWs ever attempted to catch the accused persons. Statements of both the witnesses of ocular account also contain certain other improvements to their earlier version recorded under Section 161, Cr.P.C. Apart, the story narrated in the FIR and deposed by the PWs as to the mode of entry of accused persons in the house of complainant and their departure after the occurrence in presence of three witnesses including the complainant, does not appear to be natural. It was version of prosecution that accused persons entered the house of complainant
by scaling over the northern wall. Complainant PW-1 in his
cross-examination stated that when the accused persons entered his house, his daughter raised hue and cry. He further stated that when we heard hue and cry, he along with PWs reached at the spot. It was version of PW-1 during cross-examination that he and PWs were present near to his house. If complainant’s daughter had raised hue and cry on seeing the accused persons when they entered the house by scaling over the wall and the complainant and PWs who were present in a nearby house, immediately attracted to his house, it is not believable on any stretch of imagination that in such a short span of time accused was successful in committing rape by removing his clothes and those of the victim. Complainant’s stance during the course of his cross-examination as PW-1 was that he saw the appellant while committing rape with Sonia Bibi and at that time clothes of accused were lying near and his pistol was lying on the clothes. Had this been so, there would have been no occasion for the complainant and PWs of not apprehending the appellant at the spot particularly when co-accused Sajid had already left the spot. Successful escape of accused persons by scaling over the wall of house in presence of complainant and two witnesses, by all stretches of imagination, is a highly doubtful affair that also depicts unnatural conduct of the PWs at the spot. Undeniably, both the independent witnesses namely Muhammad Mushtaq and Muhammad Ramzan did not support the stance of complainant and victim as they were given up being won over by the accused. Prosecution’s version was not acceded to in toto by the Investigating Officer PW-6 who opined that Sajid co-accused was not involved in this occurrence.
8. Occurrence was shown to have taken place on 19.06.2018 at 12:00 P.M. and the victim girl was medically examined on the same day at 03:00 p.m. In her statement before the Woman Medical Officer PW-5. victim girl took the stance that she was ravished by her cousin. She neither named the accused/appellant nor took the stance that there was any other person accompanying her cousin. According to Woman Medical Officer, hymen was found torn, however, she did not opine whether it was fresh torn or old one. No stain whatsoever of semen was detected on the clothes of the victim. Pertinent to note here is that no injury whatsoever was noticed by the Woman Medical Officer on any part of the body of victim girl despite the fact that according to prosecution’s version victim girl was thrown on the floor by the accused forcibly and her bangles also broken during the occurrence. Had she been thrown on the floor forcibly and her bangles broken, there must have been some sort of injury on her back or wrists.
9. Upon perusal of Medicolegal Examination Certificate of victim Exh:PC, it transpires that victim was medically examined on 19.06.2018 and She was accompanied by Zawar Hussain Constable and according to Dr. Kiran Musthaq (PW-5), two external and two internal vaginal swabs were taken, made into sealed parcels but she did not state to whom she handed over the parcels. PW-5 secured two external and two internal vaginal swabs, however, one external and one internal vaginal swabs were received at PFSA on 04.07.2018 from Safdar Naseer S.I (PW-6) after delay of 15-days and where these swabs remained for 15-days is a question that cannot be answered from the whole prosecution evidence and same creates doubt qua proper and safe handling as well as custody of sample parcels. It would be highly unsafe to make such report as basis for conviction of the appellant in case of rape. This chain of safe custody and safe transmission of sample parcels has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this regard may safely be placed on the cases “Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa. Peshawar” (2021 SCMR 363). “Mst. Razia Sultana v. The State and another” (2019 SCMR 1300), “The State through Regional Director ANF v. Imam Bakhsh and others” (2018 SCMR 2039), “Ikramullah and others v. The State” (2015 SCMR 1002) and “Amjad Ali v. the State” (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. Moreover, positive report qua external vaginal swab from Mst. Sonia Bibi cannot be considered as a conclusive proof that offence of rape was committed by the appellant. Mere positive report qua external vaginal swab is not sufficient to prove the charge of rape particularly where internal vaginal swabs were taken but on examination, no final opinion was given, as such report to the extent of internal vaginal swabs would be counted as negative. Learned Law Officer emphasized that sole statement of the victim was sufficient to award conviction to the appellant. There is no cavil to the proposition that conviction in rape case can even be recorded on the sole statement of victim but only when same finds corroboration and appears to be natural and confidence inspiring. In this respect, it is pointed out that in The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) the Hon’ble Supreme Court of Pakistan authoritatively held that the principle that sole testimony of the prosecutrix should be accepted, is not an absolute rule. Relevant excerpt of said judgment is reproduced hereunder for the facility of ready reference:
“It depends upon the facts and circumstances of each case and has to be assessed by the Court on the basis of the entire evidence on the record whether the sole testimony of the victim should be believed or not, particularly in the light of her cross- examination, and the other evidence produced by the prosecution; if on account of totality of facts the Court is of the view that such a statement should not be believed and for that good reasons are assigned it cannot be said that any illegality has been committed by the Court in this behalf. Thus, rule pressed into service by the learned counsel shall not apply to each and every case of rape, as a matter of routine and course, because it is not the command of any law/statute, that in deviation of the general principles of jurisprudence mentioned above, the accused must be put to the test of strict liability and should be asked to prove his Innocence because the prosecutrix’s version under all circumstances should be taken as correct.”
In the case in hand the Woman Medical Officer did not give definite opinion that the victim girl was subjected to rape. In the FIR as well as statements of PW-1 and PW-2 presence of two witnesses namely Muhammad Mushtaq and Muhammad Ramzan was claimed along with the complainant when he entered the house and claimed to have seen the appellant while committing rape. However, both the said witnesses were given up by learned ADPP as being won over by the accused. No independent corroboration worth its name was available to the extent of commission of rape with victim girl by the appellant inasmuch as presence of complainant PW-1 at the spot at relevant time was a doubtful affair as noted in the preceding paragraphs.
10 It may also be shown that appellant was shown to have been armed with pistol and he committed rape by threatening the victim girl on pistol point, however, during investigation no recovery whatsoever was effected from the appellant.
11. On re-appraisal of evidence, I have come to the conclusion that prosecution has hopelessly 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--”
Therefore Findings of conviction recorded against appellant by learned trial Court in the impugned judgment are not sustainable, which are hereby set aside allowing this Criminal Appeal. As a result, appellant Aamir Shah is acquitted of the charge extending him benefit of doubt. Appellant is in jail. He is directed to be released forthwith if not required in any other case.
(M.A.B.) Appeal allowed
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