Muhammad Azhar vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 572/2024 Muhammad Azhar Vs. The State etc.

JUDGMENT

Date of hearing: 03.12.2025 For the Appellant: Syed Asim Ali Bukhari, Advocate.

For the State: Ch. Asghar Ali Gill, Deputy Prosecutor General. Mr. Muhammad Rizwan Nadeem, Advocate, For the Complainant:

assisted by Rao Nasir Mehmood Khan, Advocate.

Tariq Saleem Sheikh, J. – This appeal is directed against the judgment dated 27.11.2024 delivered by the Additional Sessions Judge, Minchinabad, in a private complaint under section 376 PPC.

2.On 08.10.2023, K.B. (PW‐1), aged about 18 or 19 years (the “Complainant”), submitted a written application (Exh. PA) to Muhammad Manzoor/ASI (CW‐4) at Police Station Minchinabad, District Bahawalnagar, for registration of an FIR. She stated that she was unmarried and lived with her parents. According to her, Muhammad Azhar had an evil eye on her, and when she complained to her father, Azhar became angry and harboured a grudge. On 29.09.2023, her father went to attend a gathering of Saeed Ahmad Shah at Double Phatak, Minchinabad, around 9:00 p.m., while her mother had gone to visit her sister. Her brother was also not at home as he worked in Lahore. She was alone that night when Azhar and Shahzad entered the house armed with weapons and, at gunpoint, threatened to kill her. Azhar grabbed her by the arm and forcibly took her into a room, where he removed her trouser and committed rape. During this time, Shahzad stood guard. The Complainant’s cries for help attracted Ghulam Ali and Muhammad Taj (PW-2) to the scene. Upon seeing them, the accused fled, leaving the Complainant in a naked state. Azhar even left behind his slippers. Based on this application, FIR No. 741/2023 (Exh. CW-4/A) was registered.

3.The case was initially investigated by Shehnaz Akhtar/ASI (CW‐7), who opined that the Appellant was involved in the alleged offence. She endorsed the Complainant’s allegations without conducting any meaningful scrutiny. Notably, she failed to collect physical evidence from the scene. Although the Complainant and Muhammad Taj (PW-2) claimed that the Appellant left behind his slipper, it was not taken into possession. The investigation was then entrusted to Faraz Ahmad/SI (CW-8), who undertook a more thorough probe. He visited the place of occurrence, recorded statements of both parties, and examined the documentary record. He identified material inconsistencies in the Complainant’s version and expressed reservations about the reliability of the initial findings. Based on his analysis, he concluded that the case appeared to be false. During the reinvestigation, DSP Gul Hassan (CW‐9) also interrogated both parties. He found that a dispute existed between them regarding property and drainage, and that the Appellant had submitted an application to the police on 03.10.2023 regarding obstruction of passage. He further found that the Appellant was present at the house of a relative at the relevant time and concluded that the FIR had been lodged as a counterblast. It is relevant that the Complainant did not challenge this reinvestigation during trial, and no material was brought on record to impeach the DSP’s findings. Dissatisfied with the recommendation for cancellation, the Complainant instituted a private complaint (Exh. PA/CS) titled “Kousar Bibi v. Muhammad Azhar etc.”

4.The Additional Sessions Judge recorded cursory evidence adduced by the Complainant and summoned Azhar and Shahzad for trial. On 10.07.2024, the Additional Sessions Judge indicted them. They pleaded not guilty and claimed a trial.

5.To prove the charge, the prosecution produced two witnesses. Complainant K.B. (PW-1) and Muhammad Taj (PW-2) furnished the ocular account. The Complainant gave up PW Ghulam Ali being unnecessary. Besides, the Additional Sessions Judge examined nine persons as Court Witnesses. Ayesha Bibi/ASI (CW-1) testified about the transmission of sealed parcels of swabs to the office of the Punjab Forensic Science Agency (PFSA). Muzammil Bibi 1255/LC (CW-2) got the Complainant’s medical examination conducted at the THQ Hospital, Minchinabad. She was also a

marginal witness of Recovery Memo Exh. CW-2/A. Muhammad Imran 465/HC (CW-3) was the Moharrar of the police station and testified about handing over two sealed parcels of swabs to Ayesha Bibi/ASI (CW-1) for onward transmission to the office of PFSA. He was a marginal witness of Recovery Memo Exh. CW-4/A. Dr. Muhammad Usama Nadeem (CW-5) and Dr. Hadia Sarfraz (CW-6) provided the medical evidence. Shehnaz Akhtar/ASI (CW-7), Faraz Ahmad/SI (CW-8), and Gul Hassan/DSP (CW-9) deposed regarding the different stages of investigation. PWs Ghulam Ali and Muhammad Kashif 1326/C were given up being unnecessary. The public prosecutor closed the evidence after tendering the report of the PFSA Exh. PB.

6.After the prosecution was through with its evidence, the trial court recorded the statements of Azhar and Shahzad under section 342 Cr.P.C. and confronted them with the incriminating material that was brought against them during the trial. They refuted the same and professed innocence. Neither did they opt to make a statement on oath under Section 340(2) Cr.P.C. nor examine any witness in their evidence. However, Azhar tendered certified copies of the application moved to the SHO and the cancellation report as Exh. DB and Exh. DC. In reply to the question as to why this case has been registered against him and why the witnesses had deposed against him, Azhar stated:

“PWs are closely inter se related and highly inimical toward me and my co-accused. Actually, the Complainant lodged this false and fabricated case against me on the grudge of purchasing property by me from the Complainant’s relative/Baradri. Moreover, drainage water from house of the complainant party comes in my land, due to this reason, verbal quarrel took place between us, after that the complainant party blocked our way. In this regard, I moved an application to SHO police station. Due to this grudge, the complainant party concocted a false story and get register this false case against me and my co-accused in connivance with each other. In fact, false story of prosecution also proved be second Investigating Officer, Gul Hassan/DSP and my version approved right. During the course of investigation, DSP/second I.O rightly cancelled the Complainant’s case. Moreover, medical officer also negates the prosecution’s story.”

7.On the conclusion of the trial, vide judgment dated 27.11.2024, the Additional Sessions Judge acquitted Shahzad, but convicted Azhar under section 376 PPC and sentenced him to rigorous imprisonment for ten years with a fine of Rs.200,000/- and, in default thereof, to undergo simple imprisonment for a further period of six months. He was also directed to pay

Rs.300,000/- as compensation under section 544-A Cr.P.C. to the Complainant and, in default thereof, to undergo simple imprisonment for a further period of six months. The benefit of section 382-B Cr.P.C. was extended to him. Aggrieved, Muhammad Azhar (hereinafter referred to as the “Appellant”) has filed Crl. Appeal No.572/2024.

8.In support of this appeal, Syed Asim Ali Bukhari, Advocate, contended that the prosecution failed to prove the charge against the Appellant beyond a reasonable doubt. The Additional Sessions Judge failed to properly appraise the evidence, which had caused a grave miscarriage of justice. He argued that there was an unexplained delay of nine days in lodging the FIR, which cast serious doubt on the veracity of the prosecution’s version. According to the counsel, the case was false and motivated, having arisen out of previous enmity between the parties relating to a property transaction, a dispute over drainage water, and obstruction of the right of passage. It was submitted that the Appellant had made an application to the SHO regarding this dispute before the registration of the FIR, and that FIR No. 741/2023 (Exh. CW-4/A) and the subsequent private complaint (Exh. PA/CS) were counterblast. Mr. Bokhari further contended that the Complainant materially improved her version while filing the private complaint as compared to the FIR, and that both the Complainant (PW‐1) and Muhammad Taj (PW‐2) introduced further improvements during trial, which were duly confronted and undermined their credibility. He further argued that the prosecution evidence was riddled with material contradictions and lacked independent corroboration. Moreover, the medical and forensic evidence did not support the allegation of rape. Counsel prayed for acceptance of the appeal and acquittal of the Appellant.

9.The Deputy Prosecutor General, assisted by the Complainant’s counsel, controverted the above contentions. He contended that the prosecution had proved the charge against the Appellant through credible evidence. There was no discrepancy or contradiction from which he could derive any benefit. He prayed for the dismissal of the Appellant’s appeal.

10.Arguments heard. Record perused.

11.According to the prosecution, on 29.09.2023 at 9:00 p.m., the Appellant ravished the Complainant in her house. The prosecution examined

Complainant K.B. (PW-1) and Muhammad Taj (PW-2) to prove the charge against the Appellant. At the very outset, we have noted that the Complainant reported the incident to the police through an application Exh. PA on 08.10.2023, i.e., nine days later, whereupon FIR No. 741/2023 (Exh. CW-4/A) was registered. However, it is settled law that a delay in reporting cases of sexual violence does not automatically vitiate the prosecution’s case. Reference in this regard may be made to Mehboob Ahmed v. The State (1999 SCMR 1102), Irfan Ali Sher v. The State (PLD 2020 SC 295), Zahid and another v. The State (2020 SCMR 590), Mubeen Ahmed v. The State and another (PLD 2021 Islamabad 431), Zahid v. The State (2022 SCMR 50) and Imdad Ullah v. The State and another (PLD 2025 Lahore 512). In the present case, the Complainant (PW‐1), in her cross‐examination, stated that after the alleged occurrence, she and her family approached the police, but “they did not turn an ear to our submission”. However, she did not specify when this alleged approach was made, nor did she explain why she failed to submit an application to senior police officers or the Ex-Officio Justice of Peace, or why no medico-legal examination was sought during the intervening period. Therefore, in the circumstances of this case, the delay remains unexplained.

12.The Complainant is the key witness for the prosecution. It is well established that in cases of sexual offences, the victim’s testimony is crucial, and unless there are compelling reasons to seek corroboration, the courts should have no difficulty in solely relying on the victim’s testimony to convict the accused. However, this is contingent on the testimony being independent, unbiased, and straightforward enough to substantiate the accusation. If the court finds it difficult to accept the victim’s account, it may seek corroboration from other evidence that supports her version. Reliance is placed on Muhammad Aslam v. The State and others (2023 SCMR 397) and Atta-ul-Mustafa v. The State and another (2023 SCMR 1698). It is in this legal context that the Complainant’s testimony must now be assessed.

13.The Complainant’s testimony in court largely followed the one set out in the private complaint (Exh. PA/CS), but she introduced significant embellishments and was at variance with her earlier version given to the police. During cross-examination, she admitted that she had not included key facts in the private complaint. She further stated that she had earlier warned

the Appellant to desist from harassing her and that he committed the offence in revenge. However, she acknowledged that this was not recorded in Exh. PA. Similarly, she stated in her examination-in-chief that the eyewitnesses attempted to apprehend the accused, but they fled, brandishing their weapons. This, too, was not mentioned in the private complaint. When confronted with these discrepancies, she was unable to offer any explanation and merely stated that she had narrated the full facts to her counsel when he drafted the private complaint.

14.The Complainant also conceded that there was a pending dispute between her family and the Appellant regarding the drainage of water from her house into a watercourse adjoining the Appellant’s land. She denied that water flowed directly into his property but admitted that her family used to sprinkle the drainage water in the street. She further acknowledged that her family had forbidden the Appellant from using the street in front of their house after a quarrel. When asked about an application allegedly moved by the Appellant to the police on 03.10.2023, she admitted knowledge of it and confirmed that tensions had intensified after it. These facts are extremely relevant. Where animosity is admitted, the possibility of false implication cannot be ruled out lightly, and the court must seek independent corroboration.

15.Muhammad Taj (PW‐2) claimed that on the night of 29.09.2023, he was irrigating his fields when he heard cries and rushed to the house of the Complainant’s father. According to him, he saw the Appellant committing rape with the Complainant while co-accused Shahzad stood guard. He stated that he was accompanied by Ghulam Ali and that they both attempted to apprehend the accused. The Appellant allegedly raised a lalkara and asked his co-accused to fire at them, upon which they stepped back. He further asserted that the accused had fled, leaving behind a slipper, and that the slipper was subsequently secured by the police.

16.Muhammad Taj (PW‐2) was confronted with his statement under section 161 Cr.P.C. (Exh. DA) during cross-examination. He conceded that several core elements of his deposition were not recorded in it. These included the claim that he witnessed the rape, the Appellant’s alleged threat to shoot, the fact that the victim was left naked, and the recovery of the slipper. His only explanation was that the police did not

record his version accurately. While such a claim may occasionally be true, it cannot override the settled evidentiary rule that a witness who materially improves upon his initial statement must be viewed with caution.

17.The Complainant herself admitted during her cross- examination that “prior to the arrival of Taj PW my uncle Ghulam Muhammad (read Ghulam Ali) had approached the place of occurrence. Taj reached the place of occurrence after about 15 minutes of arrival of Ghulam Muhammad (read Ghulam Ali).” This admission clearly shows that PW Taj was not the eyewitness. The prosecution should have produced Ghulam Ali, but he was given up. Under Illustration (g) of Article 129 of the Qanun-e- Shahadat, 1984, the presumption would be that if he had been produced, he would not have supported the prosecution. Reliance is placed on Lal Khan v. The State (2006 SCMR 1846).

18.There is another point: if PWs Muhammad Taj, Ghulam Ali and 15 to 20 people, as claimed, had gathered at the crime scene, why did they not make any attempt to apprehend the Appellant and his co-accused. In incidents of this nature, it is commonly observed that the victim’s relatives or bystanders, without regard for their own safety, typically try to capture the culprit to prevent their escape and to hold them accountable for their misconduct. The prosecution has not given any satisfactory explanation in this regard.

19.During cross-examination, Muhammad Taj (PW‐2) conceded that he was a close relative of the Complainant. He described her as his niece and confirmed that his own residence is approximately one acre away from the scene of the occurrence. He stated that his house is situated inside his agricultural land and that he reached the Complainant’s house only after hearing the cries. When asked about the timing of the incident and his movements, he could not recall the time. He also acknowledged that the Complainant’s sister Nusrat resided in the same house, but was not cited as a witness.

20.For the reasons discussed above, the testimony of Muhammad Taj (PW-2) is unreliable and cannot be used to corroborate the Complainant.

21.It is significant that both the Complainant and Muhammad Taj (PW‐2) stated that the Appellant left behind his slippers while fleeing the

scene. However, those were neither secured during the investigation nor produced in evidence at trial. Furthermore, the weapon allegedly used to threaten the Complainant was never recovered.

22.The Complainant was medically examined on 05.10.2023 by Dr. Hadia Sarfraz (CW 6), who initially noted that the hymen was ruptured and mild hyperemia was present at the introitus. However, she found no signs of injury, resistance, or trauma on any part of the body. In her final opinion, given after receipt of the PFSA report, she concluded that “nothing can approve the act of sexual offence.” She confirmed that the absence of seminal material, coupled with the lack of clinical findings, did not support the allegation. In her cross-examination, she clarified that hyperemia is not necessarily a sign of rape and may result from infection. She also admitted that there were no injuries on the hips, thighs, knees, or genitals of the victim. According to the PFSA report (Exh. PB), no seminal material was detected on the vaginal swabs or clothing of the victim. The Agency did not conduct DNA profiling due to this absence. Taken together, the medical and forensic material does not corroborate the allegation of rape.

23.It is a cardinal principle of criminal jurisprudence that the accused is entitled to the benefit of doubt arising from any deficiency in the prosecution case. In this instance, the evidence as a whole does not meet the standard required to sustain a conviction under section 376 PPC. The finding of guilt recorded by the Additional Sessions Judge appears to be based on an inadequate appraisal of the evidence and cannot be maintained. Accordingly, we accept Crl. Appeal No.572/2024 and set aside the Appellant’s conviction and sentence. He shall be released from jail if not required to be detained in another case.

(Muhammad Amjad Rafiq) (Tariq Saleem Sheikh) Judge Judge Naeem