PLJ 2025 Cr.C. 596 (DB)
[Islamabad High Court Islamabad]
Present: Khadim Hussain Soomro and Inaam Ameen Minhas, JJ.
RAFAQAT HUSSAIN SHAH--Appellant
versus
STATE--Respondent
J.A. No. 385 of 2024, decided on 23.4.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
چیلنج-ایف آئی آر درج کرنے میں تاخیر-اغوا-- شکایت کنندہ چشم دید نہیں تھا --سنی ہوئی گواہی --شک کی کمی-- متضاد بیان-حتمی طبی شواہد کی کمی-اہم دوبارہ تشخیص --ثبوت کا بوجھ-- جیسا کہ اوپر ذکر کیا گیا ہے ، تاخیر کی کوئی معقول وضاحت فراہم نہیں کی گئی ہے-- یہاں تک کہ عدالت میں اپنی گواہی کے دوران ، استغاثہ کے گواہوں نے تاخیر کی وجہ کا ذکر نہیں کیا-مجسٹریٹ کے سامنے اپنے 164 بیانات میں ، متاثرہ نے واضح طور پر کہا کہ اس نے اپیل کنندہ کے ساتھ اپنی مرضی اور رضامندی سے شادی کی تھی ، اور رضاکارانہ طور پر اپنے شوہر کے ساتھ رہ رہی تھی - یہ بیان ، جو ایک عدالتی افسر کے سامنے حلف کے تحت درج کیا گیا ہے ، نمایاں ثبوت کا وزن رکھتا ہے - استغاثہ کا مقدمہ بغیر کسی مصدقہ ثبوت کے اس متضاد گواہی پر مکمل طور پر منحصر ہے ، شک کا فائدہ لازمی طور پر ملزم کو ملنا چاہیے ، مجرمانہ مقدمات میں مطلوبہ ثبوت کے معیار کے مطابق بری ہونے کی ضمانت دینا چاہیے ۔ یہ مخصوص مقدمہ واقعات کی نوعیت ، متاثرہ اور گواہوں کے متضاد بیانات ، اور حتمی طبی شواہد کی کمی سمیت حالات کا ایک مخصوص مجموعہ پیش کرتا ہے ۔ ٹرائل کورٹ کے ذریعہ شریک ملزم کو بری کرنے سے استغاثہ کے مقدمے کی تنقیدی دوبارہ تشخیص کی ضمانت ملتی ہے ، خاص طور پر متاثرہ کے ان کے خلاف مخصوص الزامات کی روشنی میں ۔ ثبوت کا بوجھ استغاثہ پر اپنے مقدمے کو معقول شک سے بالاتر قائم کرنے پر منحصر ہے ۔-اگر استغاثہ ایسا کرنے میں ناکام رہتا ہے تو ، ملزم شخص شک کے فائدے کا حقدار ہے ۔
----Ss. 364-A & 493-A--Qanun-e-Shahadat Order, 1984 (10 of 1984), Art 129(g)--Conviction and sentence--Challenge to--Delay in lodging of FIR--Abduction--Complainant was not eye-witness--Hearsay evidence--Benefit of doubt--Conflicting statement--Lack of conclusive medical evidence--Critical reassessment--Burden of proof--No reasonable explanation for delay, as mentioned above, has been provided--Even during their testimony in Court, prosecution witnesses did not mention reason for delay--In her 164 statements before magistrate, victim categorically stated that she had contracted marriage with appellant, of her own free will and consent, and was voluntarily living with her husband--This statement, recorded under oath before a judicial officer, carries significant evidentiary weight--The prosecution’s case rests entirely on this inconsistent testimony without any corroborative evidence, benefit of doubt must necessarily accrue to accused, warranting acquittal as per standard of proof required in criminal cases--This particular case presents a distinctive set of circumstances, including nature of incident, conflicting statements from victim and witnesses, and a lack of conclusive medical evidence--The acquittal of co-accused by trial Court warrants a critical reassessment of prosecution’s case, particularly in light of victim’s specific allegations against them--The burden of proof rests on prosecution to establish its case beyond a reasonable doubt--If prosecution fails to do so, accused person is entitled to benefit of doubt--Held: It is well-established that even a single circumstance raises doubt in a reasonable person’s mind is enough--Appeal allowed.
[Pp. 599, 600 & 601] A, B, C, D, E & F
2025 SCMR 45; 2022 SCMR 393; 2022 SCMR 1540; 2018 SCMR 772; 2008 SCMR 1221 & 2021 SCMR 873 ref.
Syed Muhammad Tayyab, Advocate for Appellant.
Mr. Nisar Ahmed Shah, State Counsel for State.
Complainant in person.
Date of hearing: 20.3.2025.
Judgment
Khadim Hussain Soomro, J.--Through this jail appeal, the appellant has impugned the judgment dated 29.07.2024, passed by the learned Additional Sessions Judge/Judge Special Anti-Rape Court, Islamabad (East), whereby the appellant was convicted in case FIR No. 35, dated 11.01.2022, under Section 364-A/493-A, PPC, PS Bhara Kahu, Islamabad, and sentenced to as under:--
· Imprisonment for life in Section 364-A, PPC.
· Imprisonment for life in Section 493-A, PPC with a fine of Rs. 150,000/-and Rs. 150,000/-as compensation u/s 17 of Special Anti-Rape Act, 2021, which shall be paid by the accused Rafagat Hussain to the victim.
· Benefit of Section 382-B Cr.PC 15 also extended to the accused, Rafaqat Hussain Shah, Both the sentences awarded to the accused shall run concurrently.
2. Briel facts of the case leading to this appeal are that on 11.01.2022, the complainant, Ghulam Murtaza, appeared at PS Bhara Kahu, Islamabad, and lodged an FIR stating that he is a laborer and has been living with his family for the last five months. On 03.01.2022, his wife went to the hospital for a check-up. Another family, whose name was Syed Rafaqat Hussain Shah, son of Sadaqat Shah, along with his mother and sister, KonainNida, was also living with him. On 03.01.2022, when the complainant returned home, his daughter, aged about 12 years, was not present, nor was the other family, who had abducted his daughter and taken her away. He searched for his daughter but could not find any clue, and hence, he went to the police station. They also took away one Techno mobile, one cheque book, the Nikkah Form, and the complainant and his wife’s ID cards. After the registration of the FIR, the accused/appellant was arrested on 07.05.2022, and the abductee was also recovered on the same day Thereafter, the investigation was completed, and the case was challaned.
3. After supplying the case papers to the accused, the learned trial Court framed the formal charge against him on 06.10.2022, to which he did not plead guilty and claimed to be tried.
4. To establish the accusation against the appellant, the prosecution examined the following witnesses PW-1/Duty Officer, ASI Zahid Hameed; PW-2 I.O. ASI Muhammad Anwar, PW-3/mashir, Constable Sher Ullah; PW-4/CMO, Dr. Javeria Ashraf, PW-5/ complainant, Ghulam Murtaza; and PW-6/abductee, Mst. Kinza Batool, PW-7/Magistrate Aneel Saeed, PW-8 I.O. SI Azmat Hayat,
PW-9/CMO Dr. Noor-un-Nisa, and PW-10/Moharar HC Nasir Nawaz. They produced the relevant documents. Thereafter, the learned Special Public Prosecutor closed the prosecution’s side of the evidence.
5. The appellant, in his statement recorded under Section 342, Cr.P.C., has denied the allegations leveled against him, pleading his innocence. However, the accused neither examined himself on oath nor led any evidence in his defense.
6. The learned trial Court, after evaluating the material brought on record and hearing the counsels for the parties, acquitted the co-accused Sadaqat Hussain Shah and Mst. Bibi Zaib-un-Nisa, whereas convicted and sentenced the appellant/accused Rafaqat Hussain Shah, through the impugned judgment, as discussed above
7. Learned counsel for the appellant contended that the appellant is innocent and has been falsely implicated in this case; that the alleged incident took place on 03.01.2022, and the FIR was registered on 11.01.2022, with a delay of eight days. That during the course of the investigation, the alleged abductee was recovered on 07.05.2022, however, her statement under Section 164 Cr.P.C. was recorded on 16.05.2022; that in her 164, Cr.P.C. statement, she did not support the case of the prosecution; that there is no documentary evidence to establish the age of the alleged abductee; that the certificate obtained from NADRA was after the lapse of 03 months from the registration of the FIR; that the examination-in-chief of the abductee is completely different from her 161 Cr.P.C. and 164, Cr.P.C. statements. Hence, it is a fit case for acquittal.
8. On the other hand, learned State Counsel, while supporting the impugned judgment, has submitted that the prosecution has proved its case against the appellant, who had abducted the minor girl and allegedly contracted the marriage but no nikkah-nama has been produced to that effect; that appellant has committed the illegal sexual intercourse with the minor abductee, that the abductee has deposed against the appellant before the Court while appeared as PW-6, therefore, instant appeal is liable to be dismissed.
9. We have given anxious consideration to the arguments of both sides and perused the entire material available before this Court with their assistance.
10. The complainant Ghullam Murtaza was examined as PW5, and admitted in cross-examination that the FIR was registered with a delay of 8 days. The record reflects that alleged incident took place on the 3rd of January 2022, and the FIR was registered on the 11th of January 2022. The complainant has admitted that the police station is at a distance of hardly 30 to 45 minutes. No reasonable explanation for the delay, as mentioned above, has been provided. Even during their testimony in Court, the prosecution witnesses did not mention the reason for the delay. Thus, the significant delay in initiating legal Proceedings casts doubt on the credibility of the prosecution’s case. The Reliance is placed in the case of “Haider Ali v. The State (2016 SCMR 1554) and “Muhammad Siddique v. The State and others” (2019 SCMR 1048)
11. The complainant in the present case is not an eye-witness to the alleged incident. His knowledge of the offense is derived solely from hearsay, as he was informed about the occurrence by his son, Shabab Khan. Notably, the investigation officer failed to examine Shabab Khan, whose testimony would have been crucial for corroborating the complainant’s version. This omission raises serious doubts regarding the veracity and reliability of the complainant’s account, as it lacks independent evidentiary support and remains uncorroborated by a material witness. The adverse presumption as enunciated under Article 129(g) of Qanun-e-Shahadat, 1984 would arise against the complainant that had the said witness appeared in the witness box, he would not have supported the stance of the complainant. The reliance is placed in the case of Sher Ayaz Khan v. Gul Najeeb Khan (2025 SCMR 380) Similarly in the case of In Muhammad Akhtar v. The State (2025 SCMR 45), the honorable Supreme Court held that the presence of the complainant at the scene of the occurrence was doubtful. Those people whose presence at the scene of the crime is alleged have not been produced before the Court. Hence, the Court made adverse presumption under Article 129(g) of the QSO that had the two witnesses been produced at the trial, they would not have supported the prosecution version.
12. The evidentiary value of the victim’s testimony in this case stands severely compromised due to material contradictions between her initial statement recorded under Section 164 CrPC and her subsequent deposition before the trial Court. In her 164 statements before the magistrate, the victim categorically stated that she had contracted marriage with the appellant, Rafqat Hussain Shah, of her own free will and consent, and was voluntarily living with her husband. This statement, recorded under oath before a judicial officer, carries significant evidentiary weight. However, during the examination-in-chief before the trial Court, the victim completely resiled from this position, alleging instead that the appellant had kidnapped her with the help of his parents. This stark about-face, without any plausible explanation for the retraction, fundamentally undermines the credibility of her testimony. The sequence of events where the victim was sent to Dar-ul-Aman after her voluntary statement but later rejoined her parents before changing her version in Court further compounds the suspicion of external influence or ulterior motives. Given that the prosecution’s case rests entirely on this inconsistent testimony without any corroborative evidence, the benefit of the doubt must necessarily accrue to the accused, warranting acquittal as per the standard of proof required in criminal cases.
13. No doubt, it is a well-established legal principle that in a rape case, the sole statement of the victim alone is enough to prove the charge against the accused. However, the statement must be independent, unbiased, and straightforward to establish the accusation. This particular case presents a distinctive set of circumstances, including the nature of the incident, conflicting statements from the victim and witnesses, and a lack of conclusive medical evidence.
14. Medical evidence holds paramount importance in the adjudication of rape cases particularly under the statutory mandate of Section 164A of the Code of Criminal Procedure (CrPC), which prescribes the compulsory medical examination of the victim. Additionally, the admissibility and probative value of such evidence are governed by the Qanun-e-Shahadat Order, 1984 (Articles 59 and 164). However, in the instant case, the prosecution has failed to produce the requisite medical evidence, thereby undermining the evidentiary foundation of the allegations.
15. The acquittal of co-accused Mst. Zaibul-Nisa and Sadaqat Hussain Shah by the learned trial Court warrants a critical reassessment of the prosecution’s case, particularly in light of the victim’s specific allegations against them. The victim categorically stated that Mst. Zaibul-Nisa played an active role in the alleged kidnapping by luring her under the pretext of seeking help for shifting household items and was physically present, seated in the vehicle at the time of the incident. Despite these direct allegations, the trial Court acquitted her based on the same set of evidence that has been used to prosecute the present appellant. This differential treatment of co-accused persons raises serious questions regarding the consistency and reliability of the prosecution’s case if the evidence was insufficient to establish Mst. Zibil-Nisa and Sadaqat Hussain Shah’s culpability despite the victim’s explicit accusation, the very foundation of the prosecution’s case against the appellant, becomes inherently weak. Admittedly the prosecution has not filed an appeal against acquitted accused. The principle of judicial parity demands that similarly situated accused persons should not be treated disparately unless there exist compelling distinguishing factors. Once prosecution witnesses were disbelieved concerning a co-accused, then they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. In the Case of Pervaiz Khan and another vs. The State (2022 SCMR 393) the Supreme Court of Pakistan acquitted two accused on the ground that the prosecution case was disbelieved qua three accused who the trial Court has acquitted and their acquittal remained unchallenged, hence benefit of doubt was extended to the rest of accused. In another case, Abdul Ghafoor v. The State (2022 SCMR 1527) and Sajjad Hussain v. The State (2022 5CMR 1540), in similar circumstances, the Supreme Court of Pakistan extended the benefit of the doubt to the appellant(s).
16. The burden of proof rests on the prosecution to establish its case beyond a reasonable doubt. If the prosecution fails to do so, the accused person is entitled to the benefit of the doubt. It is well-established that even a single circumstance raises doubt in a reasonable person’s mind is enough. A fundamental principle of law is that when there is uncertainty, the accused should be granted the benefit as a matter of right, not as a favour. In the case of Muhammad Mansha v. The State (2018 SCMR 772), the Hon’ble Supreme Court of Pakistan observed in paragraph No. 4:
“4…..Needles to mention that while giving the benefit of doubt to an aceused 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 bo-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)
A similar view was taken in the case of “Muhammad Imran v. The State” (2020 SCMR 857) The 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 v. The State (2021 SCMR 736) and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873)
17. Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellant Syed Rafaqat Hussain Shah vide impugned judgment dated 29.07.2024 passed by learned Additional Sessions Judge-I, Fast Islamabad, in Sessions Case No. 26 of 2023, arising out of FIR No. 35 of 2022, under Section 364-A, 493-A, PPC, registered at Police Station Bhara Kahu Islamabad, is hereby set-aside. The appellants are acquitted of the charges. They shall be released forthwith if they are not required in any other custody Case.
(A.A.K.) Appeal allowed
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