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Petitioner: Allah Rakha VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: Allah Rakha vs The State and another Case No.: Criminal Appeal No. 325 of 2017 Date of Judgment:2020-02-19 Reported As: 2020 LHC 1146 Result: Appeal accepted
Judgment SADIQ MAHMUD KHURRAM, J. The appellant, namely , Allah Rakha son of Sher Muhammad along with his co- accused namely Abdul Rehman son of Abdul Sattar (since acquitted) was tried by the learned Additional Sessions Judge, Bahawalnagar in case FIR No.413 of 2015, dated 15.09.2015, registered at Police Station City A Division, District Bahawalnagar in respect of offences under sections 376 and 363 PPC. The learned trial court vide judgment dated 1 1.05.2017 convicted Allah Rakha son of Sher Muhammad (convict) and sentenced him as infra: i) Rigorous Imprisonment for twenty five years under section 376 PPC and directed to pay fine of Rs.50,000/-, compensation of Rs. 100,000/- to the victim and in case of default of payment of fine/compensation to further undergo Rigorous Imprisonment of 06-months. ii) Rigorous imprisonment for five years under section 363 PPC and directed to pay fine of Rs.50,000/- , and in case of default of payment of fine to further undergo Rigorous Imprisonment of 06-months . The appellant was however , extended benefit available under Section 382 B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.) . Both the sentences were ordered to run concurrently . ( The co-accused of the appellant namely Abdul Rehman son of Abdul Sattar was however acquitted by the learned trial court ). Feeling aggrieved, Allah Rakha son of Sher Muhammad (convict) lodged the instant Criminal Appeal No. 325 of 2017 against his conviction and sentence. 2. The brief facts of the prosecution case, as stated by Shan Muhammad son of Ghulam Muhammad (PW-1) in his statement before the learned trial court are as under:- "States that my daughter Amina Shan aged 13-years is student of 8th class and used to go to school on rickshaw . On 07.09.2015 my daughter Amina Shan went to school but she did not return to home. Rickshaw driver came to me at home and asked about Amin Shan whether she had returned home or not. I replied in negative. Rickshaw driver informed me that Amina Shan was not in school. I immediately accompanied with Rickshaw Driver and went
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to school where Chowkidar informed me that no body is at school. On the following day, t went to school and inquired about my daughter from Vice Principle Shahida who informed me that one Abdul Rehman came at School and introduced himself as brother of Amina Shan. Amina Shan went with him. While Principle was on leave therefore, she cannot hand over the record to me. On 11.09.2015 I asked her to refer my application to police who refused to do so and thereafter on 15.09 .2015 I submitted application Ex-P A before the police for registration of formal FIR. Ex-P A is in my hand and bears my signature. FIR was lodged. Investigation was conducted by the police and on 05.10.2015 my daughter Amina Shan returned home sigh and cry. She narrated that when she reached the school with one Rabia, accused Abdul Rehman and Allah Rakha present in the court abducted them and took them to Pakpattan from where the accused Abdul Rehmand took Rabia Bibi to some unknown place. In the evening my daughter asked the accused Allah Rakha to release her upon which accused Allah Rakha threatened her and took her to some different places not known to her. Accused Allah Rakha used to committed forcible rape with my daughter . I send my daughter to the police station with her brother Mubashar where police recorded her statement. She was also medically examined on 07.10.2015. Her statement U/S 164 Cr.P.C was recorded by the learned Area Magistrate. Amina Shan was also sent to Lahore for DNA analysis. I told the whole occurrence to Abdul Majeed S/O Abdul Ghani and Sarfraz S/O Ghulam Rasool and they also told me that they saw Amina Shan in the company of accused. My statement was also recorded U/S 161 Cr .P.C.". 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Allah Rakha son of Sher Muhammad along with his co-accused namely Abdul Rehman son of Abdul Sattar (since acquitted) were sent to face trial The learned trial court framed charges against the appellant on 14.11.2015 to which he pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses. 5. The prosecution in order to prove its case got recorded statements of nine witne sses. Shan Muhammad (PW-1) appeared before the learned trial court and made the statement as reproduced in para No.3 of the judgment. Amina Shan (PW-2), the alleged victim narrated the facts of the occurrence. Muhammad Iqbal 1050/C (PW-3) stated that on 27.10.2015 a teacher namely Iffat Naheed produced the copy of register showing the arrival and departure of Amina Shan (PW-2) from the school on 07.09.2015 and the same was taken into possession by the Investigating Officer through recovery memo (Exh.PB). Ayesha Bibi 169/LHC (PW-4) stated that on 05.10.2015 she produced Amina Shan (PW-2) for her medical examination. Haji Muhammad , A.S.I (PW-5) recorded the formal FIR (Exh.P A/1) on 15.09.2015. Dr. Liaquat Khalid, (PW-7) stated that on 07.10.2015 he examined Amina Shan (PW-2) and performed ultrasonography and prepared the report (Exh.PD). Dr. Muhammad Saqib (PW-8) examined the appellant on 13.10.2015 and found him to be sexually potent. Muhammad Taj, A.S.I, (PW-6) investigated the case from 15.09.2015 till 27.10.2015 , arrested the appellant on 10.10.2015 and detailed the facts discovered during the investigation in his statement before the learned trial court. The Prosecution also examined Dr. Uzma Anwar , SWMO (PW-9) who was posted at DHQ, Hospital Bahawalnagar and on 05.10.2015 conducted the medical examination of the victim, namely Amina Shan (PW-2). Dr. Uzma Anwar , SWMO (PW -9) while examining Amina Shan (PW -2) observed as under: "States that 05.10.2015 at 3:45 p.m. Mst. Amina D/O Shan aged about 13-Years Caste Mughal R/O Nizampurah Bahawalnagar was brought for by Ayesha 169/LHC alongwith her brother for medico legal examination. The identification mark was (i) black mole on right cheek, (ii) brown mole on the right cheek. I obtained thumb impressions of the examinee in the relevant column. HIST ORY: According to the examinee two persons abducted her and her friend from gate of school on 07.09.2015 and kept her at a room at Pakpattan. Room was locked and person did sexual assault with her three times in a month. She ran away from that room on 03.10.2015. Last assault was done on 30.09.2015 in the area of Pakpattan. The assailant was one unknown and other details were given above. No such previous incident had taken place with the examinee. She did not disclose any detail of other party . She had no medical/su rgical history . Her last LMP was not sure. Age of menstrual cycle started about one year back. I noted no current symptoms. EXAMINA TIONOF CLOTHES:
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The clothes were changed at the time of examination. Nothing was detected for cuts, tears, wholes, broken button, zipper etc. any kind of staining with blood, urine, faceas or staining with non- biological material on clothes. PHYSICAL EXAMINA TION. Examinee was of average physique, confident, cooperative, was of average height and weight and was having no marks of violence. LOCAL SPECIFIC EXMAM1NA TION: Hymen was torn with old healed margins. Vulva and vagina was healthy . There was a rupture of hymen which was old healed. There was no evidence of bleeding, staining with blood or any kind of seminal stain. C-SYSTEM EXAMINA TION: I secured two external and two internal swabs for DNA, sealed them. I also advised ultrasonography test. INITIAL OPINION: Rupture of hymen, old healed margins. In my initial opinion, however , final opinion was to be given after receiving report of Chemical Examiner and DNA Analyst. I handed over the swabs envelope to Ayesha 169/LC. After receiving USG report by radiologist, I observed as follows:- According to USG pelvis , uterus was N/S, A/V + A/F, nulliparous size is = 6.8 CMs X 3.8 X 2.8. There is no visible semen G/sack. The font size no RPOCs are seen in the utrine cavity . Only prominent and thick endometrial lining was visible.No evidence of pelvic trauma/abortion or free fluid was seen in the pelvic area. Diagnosis : NAD. Advised urine for beta-HCG level. Please correlate with clinical and lab findings. According to DNA report Sr. No.0000234693 dated 03.07.2016 the final result and conclusion was "no seminal material was detected on item 1 and 2(two vaginal swabs + two vaginal swabs), therefore, no further DNA profiling (short tandem repeat analysis) was conducted on these items. No analysis was conducted on item No.3 (blood sample of Amina Shan), Item S-l and Item V-I (buckle swab standard of Allah Rakha + Buckle swab standard of Amina Shan). In my final opinion no final evidence of presence of seminal material on item No.1&2. No evidence of intercourse is present in this case. MLC No. 1/34 0f Amina Shan is Ex-PE is in my hand and the correct carbon copy of the original one. Final opinion is Ex-PE/1 which is attested by me and contains my signature and stamp. I also endorsed application for medical examination of Mst. Amina Shan which is Ex-PE/2." 7. On 16.12.2016, the learned Deputy District Public Prosecutor gave up PW's Abdul Majeed and Sarfraz being unnecessary . On 26.01.2017, the learned DDPP gave up PW Muhammad Shari f 732/C being unnecessary . On 17.03.2017, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the statement of Mst. Amina Shan recorded under section 164 of the Cr.PC (Exh.PG) and the report of Punjab Forensic Science Agency ,Lahore (Exh PH) 8. After the closure of prosecution evidence, the learned trial court examined Allah Rakha son of Sher Muhammad (appellant), under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he stated that he had been falsely involved in the case and further submitted that as his co- accused namely Abdul Rehman (since acquitted) had contracted marriage with the other abductee of the case namely Rabia Bibi (not produced) hence this false case was got lodged against him. Neither the appellant opted to get himself examined under Section 340(2) Cr.P.C nor adduced any evidence in his defence however the co- accused of the appellant namely Abdul Rehman (since acquitted) produced a certified copy of judgment pronounced in case FIR No. 401 of 2015 (Exh. DA) evidence in his defence. 9. On the conclusion of the trial, the learned Addl. Sessions Judge, Bahawalnagar convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is invented and untrue. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant submits that the appellant is quite innocent and has nothing to do with the alleged occurrence. He further submitted that the matter had been reported to the police with an inordinate delay . He further submitted that the prosecution has miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt and the learned trial court, while passing the impugned
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judgment of the appellant's conviction, has erred in law and facts of the case, which warrants interference by this court. 11. On the other hand, learned Deputy District Public Prosecutor along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further submitted that there was no untoward delay in lodging the FIR. The learned Deputy District Public Prosecutor further submitted that it was a heinous offence and exploited the victim's future by the appellant at the expense of his lust; that the victim was a lady and it cannot be expected from her to put her future at stake for the purpose to falsely implicate the appellant in this case for nothing; that delay in reporting the matter to the police has no adverse effect on fate of the prosecution case because in the cases where family honour is involved, immediate rushing to the police station for lodging the crime report and putting the honour at stake, is always difficult for anybody; that the medical evidence provided further corroboration to the ocular account; that the impugned judgment entailing the conviction and sentence of the appellant does not warrant interference by this Court. Lastly , they prayed for the rejection of appeal. 12. I have heard the learned counsel for the parties, learned Deputy District Public Prosecutor and with their assistance perused the record and evidence recorded during the trial carefully . 13. Learned Deputy District Public Prosecutor and the learned counsel for the complainant have stressed upon the rule of appreciation of evidence that the sole statement of the victim can be taken into account to maintain the conviction and sentence of the appellant under the charge of rape. However , the said rule is applicable only when the same is found to be confidence inspiring and trustworthy having corroboration from other independent source of evidence like the medical evidence. The self-contradictory statement of the victim is neither trustworthy nor confidence inspiring and, thus, the same is not worth reliance. This court has carefully and minutely perused the record. Dr. Uzma Anwar , SWMO (PW-9) had conducted the Medico-Legal Examin ation of the victim namely Mst. Amina Shan (PW-2) and observed that there was no sign of any injury , trauma or bruise on any part of the body of Mst. Amina Shan (PW-2). Dr. Uzma Anwar , SWMO (PW-9) deferred her final opinion with regard to the act of sexual intercourse till the receipt of report of Punjab Forensic Science Agency . Dr. Uzma Anwar , SWMO (PW-9) stated that she had seen the report of Punjab Forensic Science Agency and as per the said report, no seminal material was detected on Items submitted to the office of Punjab Forensic Science Agency , Lahore for DNA and serology analysis. But most significantly Dr . Uzma Anwar , SWMO (PW -9) opined conclusively as under:- "In my final opinion no final evidence of presence of seminal material on item No.1&2. No evidence of intercourse is present in this case.." In such state of affairs, the medical evidence provides no corroboration to the ocula r account. Reliance is placed on the case of "IBRAR HUSSAIN and others Versus THE STATE and another" (2007 SCMR 605), wherein, the august Supreme Court of Pakistan has held as under:- "It is a settled law that in rape/Hudood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. In the presen t case as mentioned above the statement of the victim is not inspiring-confidence at all and this fact was not considered by both the Courts below in its true perspective and the principle laid down by this Court in various pronoun cements. We are pained to note that both Courts below had given benefit of doubt to the prosecution in violation of principle laid down by this Court in various pronouncements. It is a settled law that benefit of doubt always be given to the accused and this principle was violative by the Courts below ." 14. Additionally , this court has observed that according to Mst. Amina Shan (PW-2),the appellant namely Allah Rakha son of Sher Muhammad along with his co-accused namely Abdul Rehman son of Abdul Sattar (since acquitted) kidnapped her on 07.09.2015 , when she was with Rabia Bibi (not produced) and both of them were taken to Pakpattan. The said Rabia Bibi neither joined the investigation of the case nor was examined as a witness by the prosecution during the trial. Rabia Bibi (not produced ) was a necessary witness to prove the factum of kidnapping as alleged by the prosecution witnesses. This failure of the prosecution to produce Rabia Bibi (not produced ) as a witness before the learn ed trial court is conspicuous by its absen ce. Article 129 of the Qanun-e- Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have
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happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order , 1984 provides as under:- " (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;" This Court, therefore, is certain of the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that had the said Rabia Bibi (not produced ) appeared before the learned trial court, she would have not supported the prosecution case. Reliance is placed on the case of Riaz Ahmad Vs. The State (PLJ 2010 SC 877) wherein the august Supreme Court of Pakistan has held as under:- "One of the eye-witnesses Manzoor Hussain was available in the Court on 29.07.2002 but the prosecution did not examine him, declaring him as unnecessa ry witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order , 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution." 15. As has already been mentioned the appellant namely Allah Rakha son of Sher Muhammad was tried along with his co-accused namely Abdul Rehman son of Abdul Sattar (since acquitted). Shan Muhammad (PW-1) and Amina Shan (PW-2) deposed in unison as against the appellant and his co-accused namely Abdul Rehman son of Abdul Sattar (since acquitted). The learned trial court did not believe the statements of the prosecution witnesses to the extent of the co-accused of the appellant, namely Abdul Rehman son of Abdul Sattar (since acquitted). The learned trial court acquitted the above mentioned co-accused of the charge. The Court has queried the learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant regarding the filing or otherwise of an appeal against acquittal of the said co- accused, who have stated that the acquittal of Abdul Rehman son of Abdul Sattar (since acquitted) had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of Abdul Rehman son of Abdul Sattar (since acquitted). The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a seriou s crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. This Court has noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following principles:- "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony . The very fact that there is a whole chapter , numbered XI, dedicated to such offenc es amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidenc e And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
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191. Giving false evidence: Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. 192. Fabricating false evidence: Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator , and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence". 193. Punishment for false evidence: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 194. Giving or fabricating false evidence with intent to procure conviction of capital offence: Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by any law for the time being in force, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; if innocent person be thereby convicted and executed: and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described. 195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or for a term of seven years or upwards: Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by any law for the time being in force is not capita l, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. 196. Using evidence known to be false: Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. 197. Issuing or signing false certificate: Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in…
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