Aman Ullah Vs The State

Stereo. H C J D A 38.

Judgment Sheet

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.233347 of 2015 (Aman Ullah. Vs. The State, etc.)

JUDGMENT

Date of hearing: 11.09.2025 Appellant by: M/s Raza Subhani & Zeba Hameed, Advocates State by: Ms. Sumara Shafi, DDPP Ch. Najam ul Hassan, Assistant Attorney General (on Court’s call) Complainant by Mr. Khawar Bashir, Advocate

Abher Gul Khan, J. Aman Ullah (appellant) was tried in case F.I.R. No.226/2016 dated 14.10.2016 registered under Section 376-I PPC at Police Station City Jalalpur Jattan District Gujrat by learned Additional Sessions Judge, Gujrat. The learned trial court vide judgment dated 01.09.2018 proceeded to convict him as under;- Under section 376 (i) PPC;- To undergo imprisonment for life along with fine of Rs.50,000/- and he was also liable to pay an amount of Rs.300,000/- as compensation to the victim under section 544-A Cr.P.C. in default whereof to further undergo imprisonment for a period of six months.

Challenging his conviction and sentence, the appellant filed the above captioned appeal.

2.Arguments heard and record perused.

3.Precisely stated the case of prosecution, as disclosed by complainant Mst. Aqsa Noureen (PW-4) in complaint (Ex.PH) is to the effect that appellant used to visit her house who developed illicit relations with her and had been committing rape with her. Subsequently on 04.10.2016 at 03.00 p.m. appellant came to her

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house and on gun point committed rape with her and threatened that if she would tell anyone, he would defame her in the world.

4.Upon receipt of written application (Ex.PH), it culminated in the registration of FIR (Exh.PA) and the investigation was conducted by Shoaib Aftab, A.S.I (PW.10) who arrested accused Aman Ullah (appellant) and after fulfillment of all legal formalities, he submitted report u/s 173 Cr.P.C to the concerned court where trial was held.

4.During trial the prosecution, in order to prove its case against the appellant produced ten prosecution witnesses including Dr. Aqsa Shahzadi, WMO (PW.4), who conducted medical examination of the victim, Muhammad Iqbal, 372/C (PW.6) in his presence appellant led to the recovery of pistol, mobile and laptop, Judge Aftab Ahmad, Judicial Magistrate 1st Class (PW.7), he got recorded statement of victim under section 164 Cr.P.C. and Mst. Aqsa Noureen (PW8), as complainant/victim, whereas the remaining PWs are more or less formal in nature.

5.After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which questions were asked arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant neither made statement under section 340 (2) of Cr.P.C, nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant criminal appeal.

6.It is discernable from the perusal of record that case is arising out of an incident, which occurred on 04.10.2016 at about 03:00 p.m. during which Aman Ullah (appellant) statedly went to the house of the complainant and after finding her alone

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committed rape with her on gun point. Astonishingly, the information of this crime was imparted to police approximately after about ten days of the incident on 14.10.2016 at 09.00 p.m. Inexorably, such enormous delay in approaching the police on behalf of Mst. Aqsa Noureen gives rise to many questions, which in the absence of an acceptable explanation can only be resolved in favour of the defence. I have meticulously perused the record and have not come across even a single explanation offered for explaining the delay in the registration of instant FIR. It is also not proved from record that investigating officer received any information about the occurrence through wireless or from any source. I feel no hesitation in holding that the information regarding the incident was imparted to the police by the complainant after a considerable delay and that too after due consultation and deliberation. Thus, a cautious approach ought to be adopted by the Courts for evaluating the evidence. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under: - “........perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution.”

7.It is further noticed that as per compliant, Ex.PH, appellant had been committing the act of sexual assault with the complainant continuously for a period of one and a half years and the most recent episode occurred on 04.10.2016, which compelled her to finally report the matter to the police. The prolonged period of silence on behalf of the complainant prior to this disclosure understandably gave rise to various doubts and suspicions

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regarding the veracity and timing of the allegations. Furthermore, in the complaint (Exh.Ph), the complainant explicitly stated that the accused threatened her 04.10.2016 by stating that he would make her video viral in the public, however, during cross- examination, the complainant denied of having made such a statement in the complaint. The relevant portion from her cross examination is reproduced below:- “I had not stated in my complaint Ex.PH that the accused told me on 04.10.2016 that he had “already” prepared my naked pictures and video”

So there exists a material and significant contradiction between the two versions put-forth by the complainant and acceptance of one inherently necessitates the rejection of the other, as both statements cannot be reconciled or simultaneously upheld.

So far as, medical evidence is concerned, it is observed that Mst. Aqsa Naureen (PW.8) was medically examined on 15.10.2016 by Doctor Aqsa Shahzadi, W.M.O (PW.4) i.e with the delay of 11 days. There is no explanation qua the delay in getting medical examination of Aqsa Naureen victim (PW.8) after a considerable period. I have also observed that medical account runs contrary to the ocular account in as much as that according to the statement of Dr. Aqsa Shahzadi (PW.4) "she had not observed any mark of violence on the body of victim". Furthermore, during cross-examination, Dr. Aqsa Shahzadi (PW.4) admitted that according to the PFSA report (Exh.PE), no seminal material was found detected on any of the items she sent to Lahore and PFSA report also stated that the victim had not been subjected to sexual intercourse. The relevant portion from her cross examination is reproduced below;- “As per report of PFSA, Lahore Ex.-PE no semen was identified on all the items which were sent by me through police to the office of

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PFSA, Lahore. Keeping in view the report of PFSA Lahore, Aqsa Noreen alleged victim was not subjected to sexual intercourse.” Though, it is argued by the learned Law Officer that since the case was registered with afflux of ten days, thus, the medical evidence could not be collected. Suffice it to say in this regard that since the delay in registration of the case can be attributed to the complainant, thus, the negative impact of non- collecting of medical evidence is also destined to be on the case of prosecution and cannot be used detriment of the appellant. It is essentially required to mention here that the medical examination of the victim would have lifted veil from the actual facts because the presence of some mark of violence on her private parts would have supported the accusations burdened upon the shoulder of appellant. So much so, even the torn clothes of the victim were neither produced before police nor tendered in evidence before the trial court. The accumulative effect of supra mentioned discussion is that I have no hesitation to hold that the ocular account is not synchronized with the medical account.

11.It is further deciphered from record that a CD (P1) in which statedly the video of the incident was captured by the appellant was produced before the trial court and was played during the course of cross examination of Mst. Aqsa Naureen (PW.4), however, no video is found in the CD (P1). Similarly, complainant was also specifically confronted with the pictures P2/1-33 and the CD (P1) and she admitted that in none of the pictures, face of the accused is visible. The relevant portion from her cross examination is reproduced below;- I have seen the pictures P2/1-33 and CD P1. It is correct that in none of the pictures face of the accused is visible.

9.Needless to mention here that the present case is based on the solitary statement of the victim. The court is neither oblivious of heinousness of the offence nor the legal position that the

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presumption of truth, in such type of cases, is attached to statement of the victim and her family members as normally nobody would own such allegation, however, such presumption would not be sufficient for conviction unless the evidence of such set of witnesses passed the required test for judging the evidence judicially. Insofar as the heinousness of the offence is concerned, the Supreme Court of Pakistan in the case of Saghir Ahmed v. The State and others (2023 SCMR 241) while dealing with somewhat on the identical issue has held as under:

"Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." The above report of the Forensic Science Laboratory is sufficient to cast a shadow of doubt on the prosecution case, which entitles the petitioner to the right of benefit of the doubt."

17.In the present case, as discussed above, there are number of infirmities / loopholes / lacunas, which create serious doubts in the prosecution case. It is a well settled principle of law that for the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. The Supreme Court of Pakistan in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) has categorically held that 'if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as a matter of right. Similar view was taken in case of Abdul Jabbar v. State (2019 SCMR 129) wherein the Supreme Court of Pakistan, inter alia, has

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observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused. It is also well settled that the conviction must be based on unimpeachable and reliable evidence. Any doubt arising in the prosecution case is to be resolved in favour of the accused.

For what has been discussed above, I am of the view that the prosecution has failed to prove its case against the appellant/accused beyond any reasonable doubt, hence the conviction so recorded by the trial court cannot be maintained. Consequently, the appeal is accepted, the impugned Judgment is set aside and the appellant/accused by extending the benefit of doubt is acquitted of the charge. He is on bail and as such his surety stands discharged from liability.

(Abher Gul Khan) Judge Approved for reporting

JUDGE

*Abdul Rehman *