Rashid Ali Vs The State

IN THE PESHAWAR HIGH COURT

MINGORA BENCH (DAR-UL-QAZA), SWAT.

(Judicial Department)

(1)Cr.A No. 183-M/2024 (Conviction) Rashid Ali ...................................... (Appellant) versus The State & another ...................... (Respondents) Present: Mr. Sabir Shah, ASC for the appellant/ convict.

Mr. Naeem Khan, Asstt: A.G, for the State.

Mian Safeer, AHC for the complainant/ respondent.

(2)Cr.A. No. 202-M/2024 (Acquittal) Mst. Bakht Bibi ................................ (Appellant) versus Umar Gul and others ..................... (Respondents) Present: Mian Safeer, AHC for the complainant/ appellant.

Mr. Naeem Khan, Asstt: A.G, for the State.

M/S Farzand Ali, Shah Faisal Khan and Sardar Ahmad, AHCs for the accused/respondents.

Date of hearing: 07.10.2025

JUDGMENT

SALAH-UD-DIN, J.- This single judgment shall decide the fate of instant criminal appeal bearing No.183-M/2024 as well as the connected criminal appeal No.202-M/2022 titled “Mst. Bakht Bibi v/s Umar Gul and others, as both these appeals have been risen out of the same and one judgment, dated 29.06.2024, by-product of one and the same FIR No.260, dated 10.06.2023, U/Ss. 457, 354, Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

384, 506, 147, 149, 376, 365-B of the Pakistan Penal Code, 1860, (“PPC”), and sections 37/53 of the Khyber Pakhtunkhwa, Child Protection and welfare Act, 2010, (“C.P.A”), registered at the Police Station Karora, District Shangla, rendered by learned Additional Sessions Judge/Izafi Zilla Qazi/JGBVC/JJC, District Shangla.

2.Arguments heard and record gone

through with the able assistance of learned counsel for the parties and learned Asstt: A.G for the State.

3.Perusal of record would demonstrate that the complainant, Mst. Bakht Bibi, (“the respondent”), has charged the accused, Rashid Ali, (“appellant”), alongwith co-accused, Umar Gul, Sahib Zada, Muhammad Nawaz, sons of Habib-ur-Rehman, Umar Saeed son Qadar Mand, Said Ali son of Umar Saeed, Ahmad Jan son of Nowsheray and Iqbal-ud-Din son of Akhbab, in the subject FIR mentioned above by alleging there in that her husband had died nearly 10/11 years back and since then, she was residing in her house alongwith her children.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

It was disclosed that about two years back to the subject incident, the engagement and Nikah of her minor daughter, Mst. Tasleem Bibi, aged about 14/15 years, was solemnized with the accused Rasheed Ali son of Habib-ur-Rahman, however, her Rukhsati had not yet been performed. The in-laws of her daughter persistently demanded the solemnization of marriage, upon which, the complainant told them to first construct a separate house for her daughter and thereafter, the marriage would be solemnized, however, they could not honour her reasonable demand. On 09.06.2023 at afternoon, a de facto brother of the respondent, namely, Sahib Zada son of Habib-ur-Rehman, had come to her house with bringing some edible items and they were busy, inter-se, in gossiping, that at 00:10 hours, the aforesaid accused came there. Accused, Ahmad Jan, caught hold her and the co-accused, Umar Gul and Umar Zahid, started beating her with kicks & fist, from which, she got painful and the other co-accused fastened her two children, a daughter Mst. Samina Bibi and a son Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

Rahmat Ali, whereas, the accused son-in-law, by using criminal force, eloped and took away her daughter, Mst. Tasleem Bibi, from her house.

During the scuffle, her cellular phone having SIM No.0341509988 was taken by Muhammad Nawaz and accused Umar Gul deprived her son, Rahmat Ali of his phone, whereas, co-accused, Iqbal-ud-Din, took cash amount of Rs.1,200,000/- from an almirah of their residential room.

The aforesaid event was witnessed by her children who were present at the scene. Motive behind the occurrence was attributed to the demand of the complainant that a separate residence be arranged for her daughter prior to Rukhsati.

4.The aforesaid incident was reported to the local police by the respondent, initially recorded vide Mad report Ex:PW5/1, which was reduced into writing in shape of the Murasil Ex:PW2/1 and thereafter its contents were incorporated in the FIR Ex:PW17/1. On the completion of investigation, complete challan was submitted before the Court concerned.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

5.Compliance of section 265-C, Cr.P.C was made and then, formal charges were framed against the accused, on 18.09.2023, who pleaded not guilty and claimed the trial.

6.While establishing the commission of alleged guilts of the accused, the prosecution examined as many as seventeen (17) PWs, whereafter, the accused were examined u/s.342, Cr.P.C, in which, they categorically denied all the allegations levelled against them by the respondent, however, neither they opted for recording their statements on oath in terms of section 340(2), Cr.P.C nor wished to produce evidence in defence. After hearing arguments of learned counsel for the parties, the learned trial Court vide impugned judgment, dated 29.06.2024, acquitted the co-accused, namely, Umar Gul, Sahib Zada, Umar Saeed, Muhammad Nawaz, Said Ali, Ahmad Jan and Iqbal-ud-Din, from the charges leveled against them, whereas, convicted the appellant, Rashid Ahmad, u/s.376, PPC, and sentenced to suffer rigorous imprisonment for 25 years with imposition of fine Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

of Rs.200,000/- for committing the rape of Mst. Tasleem Bibi. In default whereof, the appellant shall further suffer six months S.I.

Similarly, the appellant was also convicted u/s.365-B, PPC, and sentenced to suffer life imprisonment with imposition of fine of Rs.100,000/- against the abduction of the victim Mst. Tasleem Bibi. In default whereof, the appellant shall further suffer six (06) months S.I.

However, the benefit of section 382-B, PPC was extended to the appellant/convict. It obliged the appellant/convict to approach this Court through preferring instant criminal appeal No.183-M/2024 u/s.410, Cr.P.C, for his acquittal in the case from the charges leveled against him, whereas, the respondent/complainant preferred the connected criminal appeal No.202-M/2024 u/s.417(2A), Cr.P.C, against the acquittal of co-accused, Umar Gul and 06 others mentioned above.

7.Now, the Court has to see and

evaluate as to whether in the given circumstances, the prosecution succeeded to bring home the guilt against the convict, when:

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

(i)The so-called abductee is major and a legally wedded wife of the convict.

(ii)Whether in the given circumstances the prosecution has been able to prove the allegations of rape against accused or whether being a consenting, she herself left the house of complainant.

(iii)Whether the evidence, so produced by the prosecution is potentially capable to provide base for conviction.

(iv)Whether the evidence so produced is confidence inspiring, trust worthy, consistent and reliable to the purpose of conviction.

8.For seeking reply to these quarries, this would require reappraisal and reassessment of the material available on the record. Although in the FIR, it has been narrated by the complainant that at the time of occurrence, the abductee was of 14/15 years old, but this stance of the complainant has got no support from other kinds of prosecution evidence. The age of the victim Mst. Tasleem Bibi was recorded as 17/18 years in her statement recorded u/s.164, Cr.P.C. The MLC confirms the age of accused to be 17/18 years. A Nikah-Khwan, namely, Maulana Muhammad Bashar, was examined as PW3, who deposed that Nikah between the accused Rashid Ali and the alleged abductee, Mst. Tasleem Bibi, was solemnized by Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

him in the year 2021, in the presence of both parties with their mutual consent and free will.

This clearly denotes that the Nikah was contracted between them with free will and consent of both the parties. If she had been a minor, the Nikah would certainly not have been solemnized through her own Ijab-o-Qabool (offer and acceptance) but rather through her Wakeel or natural guardian. This means that not only was she sui juris, but her Nikah was also solemnized with her own free will and consent. When the statement of Investigating Officer, namely, Muhammad Khalid Khan, ASI, was being recorded, who exhibited a document as Ex:PW16/11, an application “Form B”, wherein the date of birth of Mst. Tasleem Bibi has been recorded as 03.06.2006 and at the relevant date of alleged occurrence, i.e., 10.06.2023, she was at the age of 17 years, 11 months and 20 days. Similarly, at the time of the medico-legal examination, the age of the victim was recorded as 17 to 18 years in the Medico-Legal Certificate (Ex.PW12/1) by the lady medico-legal officer. As per the statement of PW12, a lady medico-legal officer, the body features of the victim were shown her to be major and physically well matured.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

9.It is now proved that the so-called abductee was not only major at the time of alleged event but also, she had developed and matured body features. While examining the accused u/s.342, Cr.P.C, no question with regard to the minority of the victim was put to the accused.

10.It is also an admitted fact that Nikah in between the victim Mst. Tasleem Bibi and the appellant, Rashid Ali, has been solemnized with free will and mutual consent of the parties, as such, their Nikah is not disputed.

11.As to the second query, the Court has to visualize that on the basis of available evidence, whether abduction or rape is proved. According to the medico-legal report Ex:PW12/1, except for small bruises on the left arm, no any abrasion or injury was found inflicted on the body of the victim, especially, on or around her private parts.

Likewise, there was also found no any injury on the body of the accused. Had the act of rape actually been committed, it would have naturally resulted in corresponding injuries on the bodies of both, i.e., the marks of violence on the victim and Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

defensive injuries on the appellant. Furthermore, the alleged victim was recovered from a house where other women and children were also present, whereas, an abductee cannot be kept in such a house where families, especially women and children, are residing. Although, PW1 in his examination-in-chief improved that during raid on the house, a girl called him from a room who was abductee but when he was confronted with his previous statement recorded u/s.161, Cr.P.C, where this narration was found missing, thus, this portion was nothing else than mere a dishonest improvement on the part of prosecution witness. In Muhammad Mansha’s case, it has been ruled out by the Hon”ble apex Court that once the Court came to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it was not safe to place reliance on their statements.1

12.PW1 further admitted in his evidence that neither hands of the alleged victim were tied nor her mouth was zipped, thus, it proves that she 2018 SCMR 772, titled Muhammad Mansha v. The State.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

was free to move and was not detained. Besides, Ajmal Khan, (PW6), deposed in his cross- examination that the house wherefrom the alleged victim was recovered had no main gate and he alongwith police party directly entered into veranda of the said house. It was further deposed that at the time of raid, the door of the room was opened by the alleged victim herself. It is obvious from the aforesaid narrations that the alleged victim was not actually abducted but she was residing there with her own sweet will. The alleged victim, Mst. Tasleem Bibi, in her statement recorded u/s.164, Cr.P.C, deposed that she was dragged but no single scratch or bruise was inflicted to her body. In her Court statement recorded as PW15, deposed that the distance between the road side from her house was of 30 minutes by foot and on the way, there were situated the houses of her relatives but it is astonishing enough as to why she couldn”t call them for helping her. During the course of her cross-examination, she uses a term “enticed” for herself and not abduction or kidnapping. If her eyes were closed than how she was able to tell the Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

sitting order of the accused in the Jeep. As per her stance in evidence, she was dragged by all the accused for 30 minutes and in this process not only her dress was torn but she also sustained injuries on her leg but neither her clothes were found torn by the Investigating Officer nor the doctor found any injury on her leg. On the first night she was taken to a house where females and kids were there, and they were having free excess to the alleged abductee. They also gave her a blanket and chappal, as such, the aforesaid event is seemingly unbelievable. It has been further narrated by the alleged victim that on the first night of her abduction, she was subjected to rape thrice, but in her Court statement, she states that after 30 minutes of their arrival to that particular house, Fajar-Azan was called. So, it is unbelievable that the appellant could have been subjected her to rape in the presence of inmates of the said house.

13.While thrashing out the whole

evidence, the Court is of the view that the prosecution case suffers with several material dents and serious doubts. Legally even a single reasonable doubt is enough to record acquittal of Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

an accused. It is now a settled law that even a single reasonable doubt is sufficient to record acquittal of an accused and the cardinal principle of criminal administration of justice is that let hundred guilty persons be acquitted but one innocent person should not be convicted. In Bashir Muhammad Khan’s case, Hon”ble the apex Court has held that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence.

Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt.2

Similarly, Hon”ble the apex Court in Khalid Mehmood alias Khaloo’s case has reiterated the same rational by observing that a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating 2022 SCMR 986, Bashir Muhammd Khan v/s The State.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence.3

14.For what has been discussed above, learned counsel for the accused-appellant has remained successful for making out good arguable case in favour of acquittal of the accused/ appellant, whereas, the prosecution has failed to prove its case against the accused-appellants beyond reasonable doubts, therefore, his conviction cannot be maintained. Consequently, while extending him the benefit of doubts, instant criminal appeal bearing No.183-M/2024 stands allowed, set aside the impugned order/judgment, dated 29.06.2024, rendered by the learned trial Court as to the convictions and sentences awarded to the accused-appellant.

15.Resultantly, the appellant-convict, namely, Rashid Ali son of Habib-ur-Rehman 2022 SCMR 1148, Khalid Mehmood alias Khaloo v/s The State.

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

resident of village Mian Kalay, Tehsil Alpurai, District Shangla, is acquitted of the charges levelled against him. He be released forthwith if not required in any other case.

16.As far as the connected appeal against acquittal filed by the respondent/complainant bearing No. 202-M/2024 titled “Mst. Bakht Bibi v.

Umar Gul and others” is concerned, since this Court has already allowed the appeal of the appellant-convict, Rashid Ali, preferred against his convictions u/s. 376 and 365-B, PPC, who was charged for the alleged abduction and rape of Mst. Tasleem Bibi, but the prosecution has not been able to prove its case beyond any doubts through firm, cogent, reliable, believable and trustworthy evidence, therefore, the learned trial Court has rightly extended the benefit of doubts by acquitting the co-accused, Umar Gul and others, vide impugned judgment, dated 29.06.2024, which is neither perverse nor arbitrary or whimsical and does not suffer from any illegality, material irregularity, having jurisdictional error or the result Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

of misreading and non-reading of the evidence on the record. Hence, the connected criminal appeal No.202-M/2024 referred to above stands dismissed being bereft of merits.

17.These are reasons of our short order of even date.

Announced Sd/- Dt. 07.10.2025 JUDGE

Sd/-

JUDGE

Bakht Sher Ali/SSS (D.B.) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din