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Petitioner: MUHAMMAD JAVED VS Respondent: StateHonorable Justice Sohail NasirPrince Rehan Iftikhar Sheikh
2022 P Cr. L J Note 45 [Lahore (Multan Bench)] Before Sohail Nasir, J MUHAMMAD JAVED---Appellant Versus The STATE---Respondent Criminal Appeal No. 560 of 2018, heard on 15th November, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Benefit of doubt---Delay of six days in reporting the matter to police---Scope---Accused was charged that he along with co-accused persons kidnapped the sister of the complainant for committing rape---Record showed that first time matter was reported to police after six days, while presenting the application to SHO---No convincing reason whatsoever was given for such delay---On that score alone prosecution's story had come under serious clouds of doubts---Circumstances established that prosecution had failed to prove its case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Unnatural conduct of eye-witness---Scope---Accused was charged that he along with co-accused persons kidnapped the sister of the complainant for committing rape---Alleged abduction was made from a populated area at about 04:00 p.m.---Eye-witness maintained that in his presence when he was sitting at his Property Dealer office, the accused and his co-accused entered in the house of complainant, brought out victim who was screaming and they had taken her in a car---Conduct of that witness was highly unnatural who being the close friend of complainant since his childhood did not bother to intercept or challenge the accused or assailants---Even, as evident from the statement of said witness, he did not bother to call the police but kept on waiting the complainant---Version given by said witness that victim was screaming was contradicted by victim who maintained that accused and his co-accused entered into her house where she was administered some intoxicant and she became unconscious---How was it possible for victim to make screaming as claimed by witness---Circumstances established that prosecution had failed to prove its case against accused beyond reasonable doubt--- Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with co-accused persons kidnapped the sister of the complainant for committing rape---Complaint showed that assailants contacted the complainant from two mobile numbers but during entire investigation no data was collected and produced to confirm that fact---Record was silent as to how victim was succeeded to escape from the clutches of the accused and his co-accused, which was also a mystery---Although victim stated that getting a chance she ran away but thereafter she was silent that if she was taken to other city or some other place how she arrived back home---Not believable that lady was taken from one place to other and the fear continued throughout and she was not able to attract any one for her release---Not acceptable to a prudent mind that accused along with his wife, his mother-in-law and brother-in-law abducted the victim and then committed rape in the same house where mother of accused and mother of wife of accused were also present---Another important fact which was a final blow in prosecution's case was that at the time of bail application of mother of wife of accused, the complainant submitted an affidavit where he maintained that he got recorded the name of that lady due to misunderstanding who was completely innocent---Said particular aspect of the case could not restrain the Court to hold that complainant was a false witness---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt against accused---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 365-B & 376---Criminal Procedure Code (V of 1898), S. 164---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Statement of victim before Judicial Magistrate---Scope---Accused was charged that he along with co-accused persons kidnapped the sister of the complainant for committing rape---Statement of victim recorded under S. 164, Cr.P.C., was also very important because she gave the date of her abduction as 19.03.2016---During the entire proceedings before the Trial Court no exception was taken by the prosecution on the said date that it was result of some confusion, slip of tongue, or error or omission on the part of Judicial Magistrate---Unchallenged opinion of the Trial Court that no abduction had taken place had made the case clear that victim left the house on her own---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt against accused---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged that he along with co-accused persons kidnapped the sister of the complainant for committing rape---Medical evidence did not support the version of victim in particular when her hymen was old torn---Even otherwise when the private witnesses including the victim were disbelieved, medical evidence alone could not be a base for sustaining the conviction of accused---Similarly the DNA report which was positive about the profiles of accused and victim, could not be taken as a conclusive proof, once the private witnesses had been disbelieved---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt against accused---Appeal against conviction was allowed, in circumstances. Prince Rehan Iftikhar Sheikh for Appellant. Muhammad Laeeq-ur-Rehman Khan, Assistant District Public Prosecutor for the State. Date of hearing: 15th November, 2021. JUDGMENT SOHAIL NASIR, J.---Muhammad Javed (appellant) along with Mst. Shahnaz and Mst. Siani Mai had faced trial in case/First Information Report (FIR) No. 203 (PD-I) recorded on 29.03.2016 at Police Station Qutabpur district Multan under section 365-B, P.P.C. on the complaint of Qari Muhammad Jawwad (PW-1) for the allegations of abduction of Mst. Rabia Batool (PW-3) and commission of rape with her by appellant. During investigation section 376, P.P.C. was also added. 2. On conclusion of trial vide judgment dated 07.05.2018 passed by the learned Additional Sessions Judge Multan, appellant was convicted under section 376, P.P.C. and sentenced to undergo 10 years rigorous imprisonment (RI) along with fine of Rs.100000/- (one lac). In default of payment of fine he was ordered to further undergo four months simple imprisonment (SI). Benefit of section 382(B), Cr.P.C. was also extended to him. On the basis of same judgment Mst. Shahnaz and Mst. Siani Mai were acquitted. 3. Facts of the case are that on 29.03.2016, Qari Muhammad Jawwad submitted an application (PA) to Station House Officer (SHO) where he maintained that on 22.03.2016 at about 04:00/05:00 p.m. he had gone to offer the prayer in PTV Centre whereas, his mother had gone to the house of a neighbor; when he returned to his house, he found the household articles in scattered position; his sister Rabia Batool (14/15 years) was not present there; it transpired that 3 tolas jewelry and Rs.20000/- were also missing; when he inquired from his neighbors, it was disclosed that Muhammad Javed (appellant), Aslam, Siani Mai and two unknown persons had forcibly taken his sister in a car; he started search and the same information was given to him by Muhammad Sajid (PW-2) and Malik Muhammad Rafiq; he received repeated telephone calls on his mobile from mobile numbers 0348-7366829 and 0348 0893610 that if any hue and cry was made or legal proceedings initiated, he shall face the dire consequences. 4. On the basis of above application, FIR was recorded by Muhammad Arshad Iqbal ASI (PW-6). 5. The case was investigated by Mehmood Iqbal ASI (PW-5) who had arrested the appellant on 10.04.2016 and Mst. Shahnaz on 15.04.2016. Mst. Siani Mai was found innocent. 6. It is not clear that as and when Mst. Rabia Batool was free from the clutches of appellant and his co-accused, however, according to Investigating Officer on 06.04.2016 she was produced before a learned Magistrate Multan for her statement under section 164, Cr.P.C. (PE) where she maintained that Muhammad Javed (appellant), Mst. Shahnaz, Mst. Siani Mai, Liaquat and Mistri Aslam, on 19.03.2016, came to her house; she was administered some intoxicant and then she was taken to Lahore where appellant forcibly committed 'Zina' with her; when she used to resist she was beaten by the appellant. She finally added that accused committed no theft from her house. 7. So in view of statement of Rabia Batool, Shahnaz Mai and Liaquat first time came in the picture. 8. On conclusion of investigation report under section 173, Cr.P.C. (ChaIlan) was submitted in court. 9. Initially, on 29.11.2016, a charge was framed against Siani Mai only, where after on 24.08.2016 charge was framed against Mst. Shahnaz and Muhammad Javed also. Finally the joint charge against appellant and his co-accused was framed on 03.03.2017 under sections 365-B/376, P.P.C. for which they pleaded not guilty and demanded their trial. 10. In support of its case prosecution had produced Qari Muhammad Jawad/complainant (PW-1), Muhammad Sajid/witness of abduction (PW-2), Rabia Batool/victim (PW-3), Dr. Tasneem Kausar Malik who medically examined the victim (PW-4), Mehmood Iqbal ASI/IO (PW-5), Muhammad Arshad Iqbal ASI/author of FIR (PW-6), Azhar Javed/Magistrate (PW-7) and Dr. Mukhtar Ahmad who medically examined the appellant (PW-8). 11. In his examination made under section 342, Cr.P.C. version of appellant was about his false involvement. He opted not to produce defence evidence or to appear in terms of section 340(2), Cr.P.C. 12. HEARD 13. At the very outset it is observed that Mst. Shahnaz accused is the mother of Muhammad Javed/appellant; Mst. Siani Mai is the mother of wife of appellant, whereas Liaqat is the husband of sister of appellant. It has been further noticed that the learned trial court disbelieved the allegation of abduction. 14. Occurrence had taken place on 22.03.2016 and first time matter was reported to police on 29.03.2016 that was after six days, while presenting the application (PA) to SHO but no convincing reason whatsoever was given for such delay. On this score alone prosecution's story has come under serious clouds of doubts. 15. Alleged abduction was made from a populated area at about 04:00 p.m. Muhammad Sajid (PW-2) maintained that in his presence when he was sitting at his property dealer office, the appellant and his co-accused entered in the house of complainant, brought out Rabia Batool who was screaming and they had taken her in a car. The conduct of this witness is highly unnatural who being the close friend of complainant since his childhood did not bother to intercept or challenge the appellant or assailants. Even, as evident from his statement, he did not bother to call the police but kept on waiting the complainant. The version given by him that victim was screaming was contradicted by Rabia Batool (PW-3) who maintained that appellant and his co-accused entered into her house where she was administered some intoxicant and she became unconscious. So how was it possible for Rabia Batool to make screaming as claimed by Muhammad Sajid? 16. The complaint (PA) shows that assailants contacted the complainant from two mobile numbers but during entire investigation no data was collected and produced to confirm this fact. 17. Another fact alleged by complainant was that the accused made call and demanded Rs.2000/- which amount was transferred to accused through 'easy paisa'. Even no record was produced to substantiate this plea. 18. How Mst. Rabia Batool was succeeded to escape from the clutches of the appellant and his co-accused? This is also a mystery. Although she stated that getting a chance she ran away but thereafter she was silent that if she was taken to Lahore or some other place how she arrived at Multan? 19. It is not believable that lady was taken from one place to other and the fear continued throughout and she was not able to attract any one for her release. I am conscious of the fact that age of the victim was about 16 years but for that reason no premium can be given to her because she appeared to be a mature lady who used to work as maid servant in Lahore. 20. This too is not acceptable to a prudent mind that appellant along with his wife, his mother-in-law and brother-in-law abducted the victim and then appellant committed rape in the same house at Lahore where Mst. Shahnaz and Mst. Siani Mai were also present. 21. The statement of Mst. Rabia Batool recorded under section 164, Cr.P.C. (PE) is also very important because she gave the date of her abduction as 19.03.2016. During the entire proceedings before the trial court no exception was taken by the prosecution on the said date that it was result of some confusion, slip of tongue, or error or omission on the part of learned Magistrate? 22. Unchallenged opinion of the trial court that no abduction had taken place has made the case clear that Mst. Rabia Batool left the house of her own. 23. Another important fact which is a final blow in prosecution's case is that at the time of bail application of Siani Mai, the complainant Qari Muhammad Jawwad submitted an affidavit where he maintained that he got recorded the name of that lady due to misunderstanding who was completely innocent. This particular aspect of the case cannot restrain this Court to hold that Qari Muhammad Jawwad/complainant is a false witness. 24. Coming to medical evidence, Dr. Tasneem Kausar Malik on medical examination (06.04.2016) observed contused area 3cm x 2cm on the upper part of left breast which was greenish brown in colour. Vagina was admitting one finger loose and hymen was old torn. 25. The medical evidence, does not support the version of Mst. Rabia Batool in particular when her hymen was old torn. Even otherwise when the private witnesses including the victim are disbelieved, medical evidence alone cannot be a base for sustaining the conviction of appellant. 26. Similarly the DNA report which was positive about the profiles of appellant and victim, cannot be taken as a conclusive proof, once the private witnesses have been disbelieved. 27. Mst. Rabia Batool in her statement categorically stated that appellant committed rape with her in presence of Mst. Shahnaz and Mst. Siani Mai. Acquittal of these two accused in the case has also given a legitimate right to appellant seeking his clearance because the said acquittal till today has not been taken to any exception by the prosecution. 28. Concluding the discussion made above, I hold that prosecution has badly failed to prove its case beyond reasonable doubt against appellant therefore, this Criminal Appeal is allowed. Impugned judgment dated 07.05.2018 is set aside. Appellant is acquitted from the case. He is in custody and shall be relapsed forthwith if not required in any other case. JK/M-242/L Appeal allowed.