Full Judgment Text & Judicial Ruling

2020 Y L R Note 42 [Lahore (Multan Bench)] Before Asjad Javaid Ghural, J MUDASSIR MANZOOR and another---Appellants Versus The STATE and another---Respondents Criminal Appeals Nos. 1145, 1164 of 2017 and Criminal Revision No.484 of 2017, decided on 29th May, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 376(i), 376(ii), 392, 452, 458 & 292--- Rape, Robbery, house trespass after preparation for hurt, assault or wrongful restraint, lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, sale of obscene books---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons trespassed into the house of complainant, awakened the complainant lady on gun point, took her to another room, torn her clothes, committed rape with her turn-by-turn, prepared the video, tortured and extended her threats to upload the same on internet, snatched ear rings from her on gun point and directed her to make compromise in another criminal case---Complainant and her brother-in-law had furnished ocular account---Complainant reiterated the contents of the crime report but with some variation---Complainant had made certain material dishonest improvements in her deposition before the Trial Court regarding the availability of light i.e. electric bulb and co-accused persons' snatching of ear rings etc.---Admittedly, it was a dark night occurrence, no source of light was mentioned in the crime report and even no electric bulb was taken into possession by the Investigating Officer during investigation and said fact was not mentioned in the crime report---In absence of source of light, the identity of the culprits remained under heavy clouds---Victim lady claimed that the accused persons prepared video clip of the occurrence through mobile phone but neither any mobile phone was recovered from the accused nor any forensic report of such video clip was brought on record before the Trial Court---No gold ornaments were recovered from any of the accused persons---Complainant had specifically stated that accused persons forced her for compromise in the previous case already got registered by her husband against paternal uncle of the accused---Said case was still proceeding which showed that both the parties were already inimical to each other---Complainant did not mention the names and age of her four children in the crime report but in cross-examination, it came on surface that her one son was 14-years of age at the time of occurrence---Accused took one hour during the occurrence, but surprisingly, none of her children got up especially when accused were making video at the time of committing rape with the victim---Victim lady admitted that, during the process of rape by three accused, she did not raise hue and cry due to fear of getting up her children---Said facts showed that either something else happened than that as alleged by the complainant or she had suppressed some real facts from the court---Witness of ocular account had stated that he along with other witness, since given up, had seen three accused in the light of electric bulb, when they left the house of the victim lady---Complainant did not mention the name of said witnesses in the crime report, which was got registered after three days of the occurrence, meaning thereby, that they were introduced later on after due deliberation, consultation and thus, their presence at the venue of occurrence at the relevant time had been discarded by the Trial Court being not truthful witness---Said witness had stated that he was informed by the victim that accused trespassed her house by scaling over the wall, is contrary to the victim's own version in her deposition, even site plan of the place of occurrence showed the height of the four-walls not less than 12-feet and the outer door was the only source to enter into the house---Circumstances established that witness had not seen any of the accused coming out of the victim's house on the night of occurrence and whatever he narrated before the Trial Court was nothing but a bunch of lies and thereby he ostensibly committed the offence of perjury---Three accused were specially alleged to have committed gang rape turn-by-turn with the victim lady but two of them having exactly identical role had already been acquitted of the charge by the Trial Court while disbelieving the prosecution evidence to their extent---Circumstances established that prosecution had not been able to prove the charge of rape against the accused and failed to produce unimpeachable, cogent, reliable or confidence inspiring evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Shahbaz v. The State 2016 SCMR 1763; Tariq v. The State and others 2017 SCMR 1672 and Imtiaz alias Taj v. The State 2018 SCMR 344 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 376(i), 376(ii), 392, 452, 458 & 292---Rape, Robbery, house trespass after preparation for hurt, assault or wrongful restraint, lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, sale of obscene books---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was that the accused persons trespassed into the house of complainant, awakened the complainant lady on gun point, took her to another room, torn her clothes, committed rape with her turn-by-turn, prepared the video, tortured and extended her threats to upload the same on internet, snatched ear rings from her on gun point--- In the present case, complainant's claim of torture and forcible sexual assault stood negated by the medical evidence furnished by Lady Medical Officer observing no sign of assault/injury on any part of her body---Lady Medical Officer who conducted medico-legal examination of the victim had observed that her clothes were neither stained with blood nor semen and there was no injury on any part of her body---Medical Officer collected internal and external swabs of the victim lady for onward transmission to the office of Forensic Science Agency for analysis---Medical Officer did not give the same opinion with regard to commission of rape with the victim lady nor was so observed by her---Said fact showed that the Medical Officer was not certain with regard to any sexual assault upon the victim lady---DNA profile of stained section of kameez (shirt) was identified but the same was negated to the extent of vaginal swabs---Victim, in her own statement, admitted that her clothes were removed prior to the commission of rape with her and the Medical Officer also observed no such thing on any part of her clothes---Clothes of the victim were not taken into possession and were not handed over to the police, how the same were sent to the office of Forensic Science Agency through constable---Said constable did not said a word that he had transmitted kameez (shirt) and other articles to the said office on the said date, which negated the entire prosecution story---Medical evidence lent no support to the ocular account, in circumstances---Circumstances established that prosecution had not been able to prove the charge of rape against the accused and failed to produce unimpeachable, cogent, reliable or confidence inspiring evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 376(i), 376(ii), 392, 452, 458 & 292--- Rape, Robbery, house trespass after preparation for hurt, assault or wrongful restraint, lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, sale of obscene books---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Prosecution case was that the accused persons trespassed into the house of complainant, awakened the complainant on gun point, took her to another room, torn her clothes, committed rape with her turn-by-turn, prepared the video, tortured and extended her threats to upload the same on internet, snatched ear rings from her on gun point---Record showed that pistol was recovered from the accused but the same had no relevance to the rape in issue as it was not used during the occurrence---Said recovery remained inconsequential especially in absence of report of Ballistic Expert---Circumstances established that prosecution had not been able to prove the charge of rape against the accused and failed to produce unimpeachable, cogent, reliable or confidence inspiring evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Muhammad Usman Sharif Khosa for Appellant. Ch. Muhammad Akram for the Complainant. Ashfaq Ahmad Malik, Deputy District Public Prosecutor for the State. Date of hearing: 29th May, 2019. JUDGMENT ASJAD JAVAID GHURAL, J.---Through this criminal appeal under Section 410, Cr.P.C., appellant Mudassar Manzoor has challenged the vires of judgment dated 16.11.2017 passed by the learned Additional Sessions Judge, Layyah in case FIR No.77 dated 08.03.2015, in respect of offences under Sections 452, 458, 376(ii), 292 and 392, P.P.C., registered at Police Station, Choubara, District Layyah whereby he was convicted and sentenced as under:- Under Section 376(i), P.P.C. Simple Imprisonment for 25-years and to pay the fine of Rs:50,000/- and in default thereof, to further undergo simple imprisonment for two months. Under Section 458, P.P.C. Simple Imprisonment for 05-years and to pay fine of Rs.30,000/-, in default thereof to further undergo simple imprisonment for one month. He was held entitled to the benefit of Section 382-B, Cr.P.C. and the sentences were directed to run concurrently. 2. Complainant Mst. Shakila Ashraf has preferred Criminal Appeal No.1164 of 2017 against the acquittal of respondents Nos.1 and 2 and also Criminal Revision No.484 of 2017 seeking enhancement of sentence of the respondent No.2, which will be decided through this common judgment. 3. The prosecution story unfolded in the crime report (Ex. PH) registered on the complaint of Shakila Ashraf (PW-6) is that her husband Muhammad Ashraf had gone to Saudi-Arabia for earning livelihood and she was residing at Chak No.315/TDA with her four children. In the intervening night of 04/05.03.2015 at about 01:00 a.m., Mubashir Manzoor, Mudassir Manzoor (appellant) and Adnan, who were notorious vagabond and residents of same village, trespassed into her house, awakened the complainant on gun point, took her to another room, torn her cloths, committed rape with her turn-by-turn, prepared the video, tortured and extended her threats to upload the same on internet. They also snatched ear rings weighing 1/2 Tola from her on gun point and directed her to make compromise in case FIR No.514/11. On the following morning, she went to her parent's house and told them about the occurrence and also to her husband through telephone. 4. Fazal Hussain 635/HC furnished the secondary evidence of Wali Muhammad SI/Investigating Officer being dead. He identified his handwriting and signatures on different documents relating to the steps taken during initial investigation as well as arrest of co-accused Adnan and Mubashir. Ilyas Ahmed, SI (PW-9) conducted investigation of the case, made effort to arrest the appellant but in vain. He obtained proclamation of the appellant under Section 87 Cr.P.C. and ultimately prepared report under Section 512 Cr.P.C. against the appellant. On 08.07.2015 the appellant, being on pre-arrest bail, joined the investigation after dismissal thereof, he arrested him on 17.08.2015. During investigation, the appellant led to the recovery of a pistol (P-1) along with eight live bullets, which were taken into possession vide recovery memo Ex. PI. He recorded the statements of witnesses under Section 161, Cr.P.C. and got prepared report under Section 173, Cr.P.C. 5. Dr. Khalid Mahmood (PW-3) conducted potency test of the appellant on 09.03.2015 and found him potent. 6. Lady doctor Nazia Parveen (PW-4) conducted medico-legal examination of the victim on 08.03.2015 and observed no apparent injury, however, she was menstruating with the history of offensive sexual assault four days back, external and internal swabs were taken for chemical examination and DNA test. 7. At the commencement of the trial, learned trial Court had framed a charge against the appellant and his co-accused Adnan and Mubashir Manzoor to which they pleaded not guilty and claimed to be tried. 8. The prosecution examined 10-witnesses besides the report of Punjab Forensic Science Agency (Ex.PN). The appellant and his co-accused, in their statement recorded under Section 342, Cr.P.C ., had denied and controverted all the allegations of fact levelled against them. They opted not to make statement under section 340(2), Cr.P.C. however, produced certain documents in their defence. 9. Learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Mubashir Manzoor and Adnan whereas, convicted and sentenced the appellant, as stated above vide judgment impugned. Hence, the aforementioned criminal appeals as well as the connected revision petition. 10. Learned counsel for the appellant submits that the appellant is quite innocent and had falsely been implicated in the alleged occurrence; that there was delay of three days in lodging the crime report showing the real possibility of consultation, deliberation and fabrication; that all the three accused were assigned specific role of gang rape but two of them, have already been acquitted of the charge while disbelieving the same set of witnesses; that the testimony of Muhammad Sharif (PW -7) has already been discarded by the trial Court; that the mode and manner of the occurrence of rape by three accused turn-by-turn and preparing its movie in the same compound where four children of the victim were also sleeping does not appeal to reason; that the medical evidence does not support the ocular account; that the report of DNA analysis regarding vaginal swabs of the victim has been received with negative result; that the cloth and other articles were sent to the office of Punjab Forensic Science Agency on 10.03.2015 through Muhammad Sharif, constable (PW-1) but the said witness did not utter even a single word in that regard before the learned trial Court; that the prosecution evidence to the extent of preparing video clip of the occurrence, maltreating the victim and theft of ear rings has already been disbelieved by the learned trial court; that the victim made material improvements in her deposition before the learned trial court, which was duly confronted to her previous statement; that previous enmity between the parties is admitted one, which was the sole reason to falsely implicate the appellant and his brothers in this case. At the end, he has prayed for acquittal of the appellant. 11. Conversely, learned Deputy District Public Prosecutor appearing for the State assisted by the learned counsel for the complainant has vehemently contended that the victim as well as Muhammad Sharif and Nazar Hussain had well identified the appellant and his companions at the time of occurrence; that she had specifically levelled the allegation of gang rape against the appellant and his co-accused in her residential room; that there was no occasion for the complainant lady to falsely implicate the appellant and his co-accused while letting-off the real culprits; that DNA analysis report is positive to the extent of the appellant and on that score, the role of present appellant was distinguishable to that of the acquitted co-accused. Finally, he has prayed for dismissal of the appeal, enhancement of the appellant's sentence to the capital punishment and also converting the judgment of acquittal into one of the conviction of respondents Nos.1 and 2. 12. I have heard learned counsel for the appellant, learned Deputy District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record. 13. The case of prosecution hinges upon the ocular account, the medical evidence and the recovery of weapon of offence from the appellant. Complainant/ victim Mst. Shakeela Ashraf (PW-6) herself as well as her brother-in-law namely, Muhammad Sharif (PW-7) furnished the ocular account. The complainant lady while appearing in the dock in the Court room reiterated the contents of the crime report but with some variation stating that her husband Muhammad Ashraf was living in Saudi-Arabia, she along with her four children was sleeping in her house, in the intervening night of 04/05.03.2015 at about 01:00 a.m. the appellant along with his brothers Mubashir and Adnan, while armed with pistols, trespassed into her house by cutting lattice of the corridor, the electric bulb was on, they forcibly took her to another room and subjected her to the gang rape turn-by-turn, prepared its video clip, tortured and threatened her to upload the video clip on Facebook and U-Tube. They searched the house, they found nothing whereupon Mubashir and Adnan snatched one ear gold ring each from her and directed her to enter into compromise in the earlier registered case FIR No.514/2011, at Police Station, Chaubara by her husband against one Munir, their paternal uncle. They also asked her to remain giving them money, which her husband had been sending from Saudi Arabia. The police did not register case on her application but she protested and succeeded to get registered instant case after three days. After registration of case on 08.03.2015, the medico-legal examination of the victim lady was conducted on the same day and thereafter she was sent to the office of Punjab Forensic Science Agency for DNA test. In cross-examination it came to light that she had made certain material dishonest improvements in her deposition before the learned trial court regarding the availability of light i.e. electric bulb, co-accused Mubashir and Adnan snatched her ear rings one each, she approached the police on 5th, 6th and 7th of March, 2015 for registration of case, after protest this case was registered on 8th of March, 2015 and introducing the names of Muhammad Sharif and Nazar Hussain PWs, who had seen the appellant and his co-accused while leaving her house soon after the occurrence, which were duly confronted to her statement recorded under Section 154, Cr.P.C. (Ex.PJ) before the police. Admittedly, it was a dark-night occurrence, no source of light was mentioned in the crime report and even no electric bulb was taken into possession by the Investigating Officer during investigation and this fact was not mentioned in the crime report. In absence of source of light, the identity of the culprits remains under heavy clouds. The victim lady claimed that the appellant and his co-accused prepared video-clip of the occurrence through mobile phone but neither any mobile phone was recovered from the accused nor any forensic report of such video clip was brought on record before the learned trial court. Furthermore, her claim of torture and forcible sexual assault stood negated by the medical evidence furnished by lady doctor Nazia Parveen (PW-4) observing no sign of assault/injury on any part of her body. During investigation, no gold ornament was recovered from any of the accused persons. At the end of trial, learned trial court reached at a definite conclusion that all the accused including the appellant were not guilty of the offences under Sections 452, 392 and 292, P.P.C. and they were accordingly acquitted of the said charges. 14. However, he had specifically stated that accused persons forced her for compromise in the previous case already got registered by her husband against paternal uncle of the appellant. The said case was existed, which shows that both the parties were already inimical to each other. 15. Another aspect of the matter relevant to the discussion is that the appellant and his co-accused were specifically alleged to have launched sexual assault upon her when her four children were also sleeping in the same compound. She did not mention the names and age of her children in the crime report but in cross-examination before learned trial court, it came on surface that her son Abdul Rehman was 14-years of age at the time of occurrence. It took about one hour during the occurrence but surprisingly, none of her children got up especially when accused were making video at the time of committing rape with the victim. During cross-examination it was admitted that, during the process of rape by three accused, she did not raise hue and cry due to fear of getting up her children. This shows that either something else happened than that as alleged by the complainant or she had suppressed some real facts from the court for the reason best known to her. 16. In support of the victim's stance, Muhammad Sharif (PW-7) appeared and demonstrated that he along with Nazar Hussain (since given up) had seen three accused, in the light of electric bulb, when they were leaving the house of the victim lady. It is surprising that the victim lady was his sister-in-law and her husband was in Saudi-Arabia, he had seen three armed accused while leaving his brother's house but he as well as Nazar Hussain approached the victim lady in the morning and got information regarding this occurrence. Moreover, the complainant did not mention the name of the witnesses in the crime report, which was got lodged after three days of the occurrence. Meaning thereby, they were introduced later on after due deliberation, consultation and, thus, their presence at the venue of occurrence at the relevant time has been discarded by the trial Court being not truthful witness. Moreover, he had stated that he was informed by the victim that the accused trespassed her house by scaling over the wall, in contrary to the victim's own version in her deposition, even site plan of the place of occurrence shows the height of the four-walls were not less than 12-feet and the outer door was the only source to enter into the house. Upon my own independent evaluation of the evidence available on record, it has been established that Muhammad Sharif (PW-7) had not seen any of the accused coming out of the victim's house on the fateful night and whatever he narrated before the learned trial court was nothing but a brunch of lies and thereby he ostensibly committed the offence of perjury. 17. All three accused were specifically alleged to have committed gang rape turn-by-turn with the victim lady but two of them i.e. Mubashir Manzoor and Adnan Ahmad having exactly identical role, have already been acquitted of the charge by the learned trial Court while disbelieving the prosecution evidence to their extent. The settled principle of law in this backdrop is that all the accused having identical role shall be treated on equal footings instead of any pick and choose. Reference may be made to cases titled "Shahbaz v. The State" (2016 SCMR 1763), "Tariq v. The State and others" (2017 SCMR 1672) and "Imtiaz alias Taj v. The State and others" (2018 SCMR 344). A ready reference may be made to the last one wherein it has been held as under:- "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witness receive independent corroboration qua the other accused person-----" 18. Dr. Nazia Parveen (PW-4) conducted medico-legal examination of the victim lady on 08.03.2015 and observed that her clothes were neither stained with blood nor semen and there was no injury on any part of her body. She collected internal and external swabs of the victim lady for onward transmission to the office of Punjab Forensic Science Agency for analysis. She neither gave opinion with regard to commission of rape with the victim lady nor was it reserved by her. In cross-examination, she specifically deposed that "there was no abnormality on the wearing clothes of examinee so were not taken into possession and were not handed over to police. No mark of violence or rape were found by me on the body of examinee. I had not given opinion with regard to rape nor has same been reserved by me". This shows that the medical officer was not certain with regard to any sexual assault upon the victim lady. She observed no abnormality and even her clothes were not found stained with blood or semen and due to that reason the victim's clothes were not handed over to the police. The DNA profile of stained section of kameez was identified but the same was negated to the extent of vaginal swabs. The victim, in her own statement, admitted that her clothes were removed prior to the…

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