Zulfiqar Ahmed Vs Muhammad Siddique etc

I

Judpme Sheet

Pnsnaun HrcH COURT. AggoTTA,NAD BENCII

JUDICIAL DEPARTMENI

Criminal Anneal No.172- N2022 Zulfiqar Ahmed... (APPetlant) sgc Muhanmad Siddique etc... @espondents) Present: Mr.Masood Azhar, Advocate for appellant.

IWS Muhammad Asif Qazi, Additional Advocate General and Wajahat Hussain Shah, Assistant Advocate General for State.

IvIr.Atif Ali Jadoon, Advocate for respondent No. I /complainant.

Dates of hearing: !!'!2'W

JUDGMENT

Mur,luu,o Lllz Knlx. J.- Through the instant appeal, appellant namely Zulfiqar Ahmed has challenged the order and judgment of leamed Additional Sessions Judge-I, Haripur dated29.06.2022 passed in .h case FIR No.l I 15 dated 03.11 .2020 registered under sections 376 PPC read with section 53 of The Khyber Pakhtunkhwa (Jamil) (SB) Hon'ble Mr.Jwtice Muhammad ljaz Khan.

Child Protection and Welfare Act, 2010 at Police Station Kot Najibullah, Tehsil & District Haripur whereby the appellant was convicted and sentenced under section 376 PPC to undergo rigorous imprisonment for ten years and to pay a fine of Rs.100,000/-, however, he was acquitted of the charges under section 53 of The KhYber Pakhtunkhwa Child Protection and Welfare Act, 2010 being not applicable.

2.Precisely, the facts ofthe present case are that ot 31.10.2020 at 19.00 hours, complainant namely Muhammad Siddique (PW-10) alongwith his daughter Mst.Laiba came to Police Station Kot Najibullah Haripur and reported the matter to the local police to the effect that he is a truck driver and used to remain outside; on 19.09.2020 he having a bulk of cargo' departed for different destinations ofPunjab Province; on 24.10.2020 he came to village on the death of a relative and on the same day one of his (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khan

relatives told him that one Waqar son of Dildar subjected his daughter to rape; the complainant inquired about that event from his wife Mst.Tasmia (Tasbia) Bibi (PW-9) who disclosed that on 22-09.2020 she alongwith her younger son namely Muneeb took her daughter Mst.Laiba Bibi to the hospital for treatment, however, due to rush in the hospital, she sent Mst.Laiba Bibi with one Zulfiqar (appellant herein) at about 12.30 p.m. for dropping her in the house of her sister namely Mst.Zahida Bibi (PW-8) resident of Amgah; the aforesaid Waqar took her daughter in the bushes of Aamgah graveyard and there committed the sexual intercourse with her and thereafter he left her r daughter in front of the house of Mst'Zahida Bibi; complainant further stated to the local police that due to fear, the inmates of his house did not disclose the occurrence which caused delay in reporting the matter to local police. The report of the complainant was (Jamil) (SB) Hon'ble Mr'Justice Muhammad liaz Khan.

incorporated by Naseer Hayat ASI (PW-7) in Naqal Report No.22 dated 31.10.2020 (Ex.PW-7/1), which after the preliminary investigation led to the registration of instant FIR (Ex.PW-3/l).

3.After the completion of investigation, the complete challan was submitted before the court against the appellant. After observing the codal formalities, the trial court framed charged against the appellant under the relevant sections of law to which he pleaded not guilty and claimed trial which accordingly commenced. In support of its case, prosecution produced and examined as many as thirteen (13) witnesses including the important statements of PW-l ladY Dr.Misbah Qazi. She, vide report Ex.PW- r l/1, conducted pelvic examination of the victim and found no sign of fresh injury on perineum. PW-4 is lady Dr.Farkhanda Gul' She conducted medicoJegal examination of the victim vide MLC Ex.PW-4/I. PW-6 is (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

Muhammad Bashir (then) SVO.I.I. He conducted investigation in this case. PW-8 is Mst.Zahida Bibi wife of Ghulam Sarwar' She stated that on the day of occurrence when she came out of her house on hearing noise of motorcycle she was that the appellant was alighting the victim from his motorcycle. PW-10 is Muhammad Siddique' He is the complainant of this case' He deposed facts which he narrated at the time of his report which was reduced into writing in shape of Naqal Report (Ex'PW-7/l)' He charged the appellant for commission of offence. PW-9 is Mst.Tasbiua Bibi' She happens to be mother of the victim and wife of the complainant' She narrated some facts about the occulrence by trying to support the contents of report (Ex.PW-7/l)' PW-II is I Arshad Khan SVO.I'I' He conducted proceedings in the instant case regarding determination of cause of death of the victim and exhibited his report in this regard as (Jamil) (SB) Hon'ble Mr Justice Mu hammad ljaz Khan.

Ex.PW-11/1. PW-I3 is Abdul Qadeer SI. He conducted preliminary investigation under section 157(l) Cr.PC visited the scene of occurrence and prepared site plan Ex.PW- l3/2. Wher, prosecution closed its evidence, statement of the appellant was recorded under section 342 CI.P.C before the leamed trial court, wherein he claimed innocence, however, he neither wished to produce the defense evidence nor desired to be examined as witness under section 340(2) Cr'PC. Then after hearing arguments of leamed counsel for the parties, the leamed trial court vide impugaed order and judgment dated 29.06.2022 convicted and sentenced the appellant as mentioned in Para No'l of this judgment. The appellant has now called in question the aforesaid order of conviction and sentence through the instant criminal appeal.

4.Arguments of learned counsel for the parties and Assistant Advocate General (Jamil) (SB) Hon'ble Mr'Jttstice Muhammad ljaz Khan

i/ were heard in detail and record perused with their able assistance.

5.The record would show that the alleged occulrence took place on22.09.2020 and as per statement of PW-I0/complainant namely Muhammad Siddique he was informed about the occurrence on 24.10.2020, however, even thereafter, he did not bother to lodge the report and waited for seven long days. It is an established law that in such-like cases, delay would hardly matter, however, when it is brought into the notice ofthe father of the victim then any delay thereafter would be damaging the case of prosecution especially when it is seen in juxtaposition with a suggestion Put to PW-9 namelY V Mst.Tasbia Bibi that her brother namely Azhar has constructed Dera on the property of Dildar, who is the father of the present appellant. It is a settled preposition of criminal (Jamil) (SB) Hon'ble Mr'Jttstice Muhammad ljaz Khan

law that lodging of delayed FIR speaks of consultations and deliberations unless explained by the prosecution and thus it casts serious doubt on the veracity of prosecution story. In the case titled "AMIR MUHAMMAD KHAN vs IE_.IE[AJ!E"

repo rted as 2 SCMR 66 the Apex Court has held that nowhere in the entire evidence, the prosecution has explained the reason for the delay in reporting the matter to the Police with such a delay. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation.

6.It is the case ofprosecution as alleged by PW-9 namely Mst.Tasbia Bibi who is wife of the complainant that on the day of occurrence she has visited Amgah hospital V and when they got late there she handed over the victim Mst.Laiba Bibi to the appellant namely Zulfiqar for taking her to the house of her sister's husband, however, the (Jamil) (SB) Hon'ble Mr'Justice Muhammad ljaz Khan.

prosecution has not been able to bring on record any material whatsoever to establish that on the day of occurrence, PW-9 (Mst.Tasbia Bibi) alongwith the victim and her minor son namely Muneeb had visited the hospital, therefore, the prosecution has not been able to prove the very foundation of lts case.

7.The record would also indicate that initially the report of the complainant was lodged through Madd Report No'22 (Ex'PW- 7/l), however, in the said Madd Report, two times the name of the accused has been mentioned as "Waqar", whereas one time it is mentioned as "Zulfiqar". Similarly, in the site plan (Ex.PW-13/2) as well as recovery memo Ex.PW-211, too, the name of one "yfuqal" has been tampered with the name of "Zulfiqar" and neither during the course of investigation nor during the course of trial that the prosecution has been able to explain as to whether it was "Waqar" or "Zulftqar" (Jamil) (SB) Hon'ble Mr'htsrice Muhammad Ijaz Khan

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who has committed the offence or that they were two names of a single Person.

8.The aforesaid lacuna qua the correct name of the real culprit in the prosecution case gains more significance when it is seen that the copy of the Madd Report No'22 available on police file is not reflecting the name of appellant Zulfiqar as in the said Madd Report, onlY one Waqar has been shown as the real culprit, therefore, in the given facts and circumstances, the prosecution has not been able to establish as to whether it was Waqar ot Zulfiqat who has committed the offence of rape with the victim and thus to this extent, too, the case of prosecution is shrouded in doubts' The leamed counsel for the complainant tried to explain the aforesaid fatal lacuna in the f.

prosecution case by making reference to the statement of PW-l0/complainant where he

has stated that infact the appellant was known in the village with the name of Waqar (Jamil) (SB) Hon'ble Mr'hntice Muhammad ljaz Khan

and his real name was Zulfiqar, however, such explanation was destroyed by another prosecution witness namely Naseer Hayat ASI (PW-7) who scribed report of the complainant by stating in his court statement that in fact it was due to sliP of Pen, therefore, such explanation if any is of no benefit to the prosecution.

g. It is also part of the record and as argued by the leamed counsel representing the respondent/complainant and leamed Assistant Advocate General that the appellant was last seen by PW-8 (Mst'Zahida Bibi) and PW-9 (Mst'Tasbia Bibi) who too reached there from the hospital at the relevant time, however, PW-9 has totally excluded the presence of PW-8 as his examination-in-chief is absolutely silent V about her presence at the time when the appellant was allegedly deboarding the victim. Similarly, the prosecution has also not been able to establish that how PW-8 (Jamil) ISD Hon'ble Mr'Jttstice Muham mad Ijaz Khan

could see an event happening outside of her house as under normal circumstances, a Pardah-Nashin lady would not opt to go outside the house over the noise of a motorcycle as alleged by PW-8, therefore, in the given facts and circumstances, the last seen evidence is also not worth reliable for the impugrred conviction.

10.It was also noted that keeping in view the vivid stance of the prosecution as reflected from the Madd Report, site plan and recovery memo that as to whether it was appellant Ztifiqar Ahmed or one Waqar who was the culPrit then under such circumstances it was incumbent upon the prosecution to have conducted identification parade from PW-S and PW-9 that it was appellant Zdfiqar Ahmed to whom the victim Mst.Laiba was handed over by her mother (PW-9) and it was he who deboarded

PW-

Mst.Laiba Bibi in front of the house of parade has 8, however, no such identification (Jamil) (SB) Hon'ble Mr'Jttstice Muhammad liaz Khan'

been conducted by the prosecution so as to prove its case beyond any doubt against the appellant Zulfiqar Ahmed.

11.It is also relevant to mention here that though it is the case of prosecution that the present appellant has committed rape with the victim, however, such allegations do not find any support from the medical report and evidence produced by PW-l namely lady Dr.Misbah Qazi and PW-4 namely lady Dr.Farkhanda Gul. The record would indicate that it was on 31.10.2020 when the victim was initially examined by PW-4 namely lady Dr.Farkhanda Gul, however, it was PW-4 who on pelvic examination OS is opened and finger is stained with blood and as such the aforesaid report (Ex'PW'4ll)' on

one hand, is inconclusive and on the other' v swabs were also taken from vagina of victim and were handed over to the police' the

however, the said swabs were found negative for human semen' Similarly' when the (Jamil) (SB) Hon'ble Mr'Justice Muhammad ljaz Khan'

Gynecologist namely lady Dr.Misbah Qazi appeared as PW-l and who examined the victim being a Gynecologist and has stated that she found old heal tear in posterior part of hymen, however, to a court question, she confirmed that the old heal tear may be three to five days old which prima facie shows that it was the injury caused to the hymen of the victim on 3l.lO.2O2O when PW-4 at the time of examination of the victim put her hnger in the pelvic of the victim and thus on the face ofrecord/evidence the allegations ofrape are not supported by any independent evidence including the medical evidence produced by the two lady doctors. It is well settled now that whenever there is contradiction between the ocular account and medical evidence' to the benefit of the same has to be given

(6T! L

the accused' In the case titled

The STATE and ^7 HUS S AIN s vs

the another" reported as 2022 SCMR 1567' Supreme Court of Pakistan has held on

(Jamit) (SB) Hon'ble Mr' Justice Muhammad ljaz Khan

account of contradiction between ocular account and medical evidence that prosecution has failed to prove its case beyond any reasonable shadow ofdoubt.

12.It was also noted that though PW-9 namely Mst.Tasbia Bibi in her examination- in-chief has stated that they took Mst.Laiba Bibi inside house and the clothes of her daughter on inspection were stained with blood. She in her cross-examination has also stated that they have handed over the blood stained clothes of the victim daughter to the local police on 22.09.2020. However, those blood stained clothes were neither taken into possession through a proper recovery memo nor the same were sent to FSL for analysis nor the same were exhibited or produced on before the leamed trial court, therefore' this score too, the case of prosecution is shrouded in doubts.

13.Apart from this, PW-8 (Mst'Zahida whose Bibi) and PW-9 (Mst'Tasbia Bibi) on Khan (Iamil) (SB) Hon'ble Mn Justice Muhamm ad ljaz

statements, the leamed trial court awarded the impugned conviction and sentence, remained inconsistent on many scores as PW-S in his court statement says that she was all alone when her statement was recorded by the local police on the second day of the report. She further stated that in her presence statement of Mst.Tasbia Bibi was not recorded by the local police, whereas PW-9 says that it was on the same day of report i.e. 31.10.2020, when her statement was recorded by the local police' The I.O./PW-l3 has contradicted both of them by stating that he recorded statements of both these PWs at one time and outside the house of Mst.Zahida Bibi' Moreover, PW-9 stated that the local police also recorded the statement of her daughter Mst.Laiba Bibi in P'S. whereas, investigation officer/PW-6 has admitted in his cross- v examination that he has not recorded statement of victim Mts'Laiba Bibi and thus

(Jamil) (SB) Hon'ble Mr'Jttstice Muhammad Ijaz Khan

in view of the above glaring contradiction and inconsistency in the statements of the important prosecution witnesses, their evidence could not be relied upon for the purpose of conviction. In the case titled "Mst .ASIA BIBI vs. The STATE" rePorted as PLD 2019 SC 64 , the Supreme Court of Pakistan acquitted the accused by observing that many inconsistencies/discrepancies were found in the statements of the two women who were introduced as prosecution witnesses inasmuch as variations were made by them from their earlier statements recorded under 5.161, Cr.P.C. Further there were also discrepancies between the examination-in-chief of the complainant and the complaint lodged by him. Such material contradictions and inconsistent statements of the witnesses and complainant cast further doubts on the coherence of the evidence pertaining to the questions as to who informed the complainant about the (Jamil) (SB) Hon'ble Mr'Justice Muhammad liaz Khan.

occurrence; who was present at the time of disclosure regarding the allegation made against the accused. Certain contradictions were also present in the examination-in-chief and cross-examination of a police officer/ prosecution witness regarding the place and time of arrest of accused. Prosecution had categorically failed to prove its case beyond reasonable doubt.

14.By now it is established law that heinousness and gravity of an offence(s) would not be sufficient to maintain a conviction rather the same could be awarded and maintained if strong, confidence inspiring and unimpeachable evidence is available against an accused which is apparently missing in this case' In the case titled .IAZEEIM and another vs.

and others " reported as

2016 SCMR 274, the SuPreme Court of v Pakistan has held that it is also a well embedded principle of law and justice that (Jamil) (SB) Hon'ble Mr'Justice Muhammad ljaz Khan

no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit ofreasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion' In that event the justice would be casualty'

15.It is relevant to mention here that by now it is a trite law that that for giving benefit to an accused, it is not essential that ( there should be many circumstances creating doubts, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal (Jamil) (SB) Hon'ble Mr'Justice Muhammad Iiaz Khan.

administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. The Honourable Supreme Court of Pakistan in the case titled "AMIR KHAN

vs The STATE" rePorted as @[!{!

fff, has held that it is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and ifthere is only one doubt, the benefit of the same must go to the accused' Same norm was settled by the Apex Court in the CASE titlEd "SAGHIR AIIMAD VS ThE STATE a nd others" reported as 2023 SCMR

241.Similarly, in the case titled "El\iEB MI]IIAMMAD KTIAN VS The TA

reported as 2022 SCMR 986, the august ( Supreme Court has held that single circumstance creating reasonable doubt in a

prudent mind about the guilt of accused (Jamil) (SB) Hon'ble Mr'Justice Muhammad Ijaz Khan

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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. Similarly, in the case titled ((KHALID MEHMOOD alias KIIALOO vs The STATE" rePorted as M MR 1148 the Apex Court has reiterated the same rational by observing that in these circumstances, 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 reasonable doubt in a prudent mind about the guilt of tI accused makes him entitled to its beneflts' not as a matter of grace and concession but be as a matter of right' The conviction must based on unimpeachable, trustworthy and (Jamil) ISD Hon'ble Mr'Justice Muham mad ljaz Khan

reliable evidence. In another case titled (KASHIF ALI alias KAL U vs. The STATE and anothert' rep orted as 2022 MR 1515 the Apex Court has held that it is settled law 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 case is to be resolved in favour of the accused. Reliance in this behalf can be made upon the following cases:-

i)Tari o Pervez v. The S te

0995 SCMR 134$,

iD Gh lam adir nd 2 othe v. The Sta QO 08 SCMR

iiDMuhammad Akram v' The State (2009 SCMR 230),

iv)Muh amm ad Za man v. The State (2014 SCMR 749) and

v)M a ad Ma v The

S14!9" 201 SCMR

(Jamil) (SB) Hon'ble Mr'Justice Muhammad liaz Khan.

16.For the reasons recorded above, this criminal appeal is allowed, the conviction and sentence of the appellant namely Zulfiqar Ahmed recorded by the leamed Additional Sessions Judge-I, Haripur through the impugned judgment dated 29.06.2022 are set aside and by extending him the benefit of doubt he is acquitted of all the charges levelled against him. He shall be released from the jail forthwith if not required to be detained in any other case'

ANNO UN CEI)

t8.12.2023.

(Jamil)

JU DGE

(SB)Hon'ble Mr. Justice Muham mad Ijaz Khan.