PLJ 2024 Cr.C. (Note) 1
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
JAMSHED--Appellant
versus
STATE and another--Respondents
Crl. A. No. 97 of 2013, heard on 4.10.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376(2)--Conviction and sentence--Challenge to--Specific allegation against appellant committed zina-bil-jabr--Legitimate right--Allegations are serious in nature but on this fact alone a conviction cannot sustain if it is found that trial Court did not take pain to arrive at a just decision of case--In particular acquittal of two accused who were similarly placed as of appellant has given him a legitimate Right seeking his acquittal from this case--Appeal allowed. [Para 15] A
Rana Azhar Fayyaz, Advocate for Appellant.
Mr. Muhammad Laeeq-ur-Rehman, ADPP for State.
Mukhtar Ahmad Complainant in Person.
Date Hearing: 4.10.2021.
Judgment
Mukhtar Ahmad (PW-1) on 29-03-2012 had filed a private complaint against Jamshed (appellant) and his two brothers Javed and Muhammad Asghar (since acquitted). It was alleged that in between night of 24/25-02-2010 he was sleeping in his house at cattle shed whereas his daughter Shumaila Bibi aged about 13-years (PW-2) was sleeping in a separate room with his sisters, at mid night appellant along with his two co-accused all armed with pistols after scaling over the wall entered in the house and they caught hold Shumaila Bibi; Jamshed and Javed on gun point committed Zina-bl-Jabar with Ume Shumaila one by one whereas Muhammad Asghar had been guarding while standing outside; on hue and cry of Ume Shumaila he/complainant awoke up and in the meantime Muhammad Iqbal (PW-3) and Muhammad Aslam reached there whereas appellant and co-accused were succeeded to escape. According to complainant the appellant and his co-accused were identified in the light of electric bulb.
2. After recording of preliminary evidence processes were issued against appellant and his co-accused.
3. On 12-10-2012 a charge under Section 376(2), PPC was framed against appellant and his co-accused for which they pleaded not guilty and demanded their trial.
4. Mukhtar Ahmad/complainant appeared as PW-1 who produced Shumaila Bibi (PW-2), Muhammad Iqbal (PW-3) and lady Doctor Shagufta (PW-4).
5. Muhammad Aslam was given up being unnecessary where after the learned trial Court had examined Nazar Hussain S.I (CW-1), Muhammad Latif Constable (CW-2), Tariq Mehmood (CW-3), Muhammad Siddique S.I (CW-4) and Abdul Ghafoor (Cw-5).
6. In his examination under Section 342 Cr.P.C version of appellant was as under:
“It is a false case. PWs are closely related to each other, inimical and interested witnesses. In fact, prior to the occurrence, a theft of the uncle of complainant namely Riaz Ahmad and said Riaz Ahmad was committed. They had a suspicion that one Sadiq and Bashir sons of Kalu had committed the theft. They were tenants of said Riaz Ahmad, the uncle of the complainant. Fateh Muhammad, Riaz Ahmad, Sheikh Muhammad uncles of the complainant stopped the crops of their tenants Sadiq and Bashir and also had stolen their crops. A Punchait was convened about the said occurrence. My father Abdul Jabbar and one Peer Bakhsh Chhina were the Salis from the side of said Bashir and Sadiq and both the Salis gave decision against complainant party and declared Sadiq and Bashir not involved in the occurrence of theft. By the decision of both the Salis Bashir and Sadiq cut away their crops. Further Shomaila Bibi was a habitual woman and characterless lady. She is not a truthful witness. She was found pregnant at the time of her medical examination by Lady Doctor PW-4. She had illicit relations with one Saeed Ahmad S/o Abdul Sattar for about last 3-4 years. On the alleged night of occurrence Shomaila Bibi was going to meet said Saeed Ahmad. On my pointation and on the pointation of the people of the locality, she was apprehended by the people of the vicinity and handed over to the complainant. Due to these reasons, the complainant booked me in this case falsely by introducing a concocted story after 2-1/2 years of the alleged occurrence at the instigation of his uncle Riaz Ahmad and Fateh Muhammad etc.
7. Appellant in his documentary evidence produced documents (Ex.DA to DE), He did not desire to appear in terms of Section 340(2), Cr.P.C.
8. Learned counsel for appellant contends that the version of complainant is self contradictory and under no circumstance is liable to be believed.
9. On the other hand learned Assistant District Public. Prosecutor maintained that there is no justification to disbelieve the testimony of Shumaila and her father Mukhtar Ahmad because only for the reasons of enmity no female can come forward to have the stigma for her entire life; both private witnesses made statements with consistency and the defence was unable to shatter their credibility. The learned trial Court rightly believed prosecution story and recorded conviction against the appellant.
10. HEARD
11. The occurrence took place in night between 24/25-02-2010 whereas complaint was filed after more than 02-years on 29.03.2012 with the specific allegations that appellant and Javed committed Zina-bl-Jabar one by one with Ume Shumaila whereas Muhammad Asghar had been guarding that illegal act. It is important to mention here that appellant and his co-accused are the real brothers. What was the case of Mukhtar Ahmad and Ume Shumaila before filing the private compliant that is very important. Admittedly, about this occurrence FIR No. 66 (Cw-3/1) was recorded on 02.03.2010 at police station SadarMailsi District Vehari on the complaint of Mukhtar Ahmad. In that FIR the allegation was entirely different from the one that was made in private complaint. In FIR it was alleged that Muhammad Javed and Jamshed (appellant) were in possession of pistols whereas Muhammad Asghar was having a hatchet; all they entered in the house; Jamshed extended threats to Ume Shumaila and thereafter he was only one who committed rape with the lady. Even in an application (DA) moved to Area Magistrate seeking permission for medical examination of Shumaila Bibi the story with regard to rape was by Jamshed and none else. About Muhammad Javed it was simply stated that he placed his hands on the mouth of victim whereas Muhammad Asghar had guarded the occurrence. In an application under Sections 22-A/22-B, Cr.P.C. (DD) moved by Mukhtar Ahmad petitioner, he had alleged the rape also by appellant and none else.
12. After two years to change the version by Mukhtar Ahmad and the victim speaks about their mala fide and they have lost their credibility on this ground alone. It is important to mention here that the documents referred earlier were not disputed by Mukhtar Ahmad complainant when he faced the cross-examination.
13. Shumaila Bibi (PW-12) in cross-examination without any reservation also admitted that she never appeared before the investigating officer and made no statement to him.
14. It was mid night and it cannot be believed that three young men entered in the house and one of them committed rape with a lady who too was young but she made no hue and cry and opened the mouth when all was over. The statement of lady Doctor Shagufta (PW-14) is also a strong barrier in the way of prosecution because according to her there was no mark of violence on the private parts and entire body of the victim; vagina was healthy; Hymen was old torn and there was old scar present on the right thigh.
15. I am conscious of the fact that the allegations are serious in nature but on this fact alone a conviction cannot sustain if it is found that the learned trial Court did not take pain to arrive at a just decision of the case. In particular acquittal of two accused who were similarly placed as of appellant has given him a legitimate Right seeking his acquittal from this case.
16. Concluding the discussion made above, as prosecution could not prove its case beyond reasonable doubt against appellant, therefore this Criminal Appeal is allowed, Impugned judgment dated 02.02.2013 is set-aside. Appellant is acquitted from the case. He is on bail and is discharged from terms and conditions of bail bonds.
(A.A.K.) Appeal allowed
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