IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Appeal No. S- 102 of 2019.
Appellant: Abdul Rehman alias Sulleman alias Siloo, through Mr. Muhammad Afzal Jagirani, Advocate.
Complainant. Mst. Shabiran, through Mr. Irfan Badar Abbasi, Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 07.12.2020.
Date of the decision: 07.12.2020.
Date of reasons: 23-12-2020.
JUDGMENT
ZULFIQAR ALI SANGI, J-. Through this criminal appeal, appellant Abdul Rehman alias Sulleman alias Siloo son of Dil Murad Khan Magsi has impugned the judgment dated 31.10.2019, passed by learned Additional Sessions Judge-I, Shahdadkot, in Sessions Case No.29/2014, re; St. v. Abdul Rehman alias Sulleman alias Siloo, arisen out of Crime No.69/2013 of P.S Sijawal (District Kamber-Shahdadkot @ Kamber) for the offence U/S 365-B, 366, 34 PPC; whereby the appellant was convicted and sentenced for offence under Section 365-B P.P.C. The appellant was sentenced to suffer R.I for life and to pay fine of Rs.100,000/- and in case of default in payment of fine, he was directed to suffer S.I for six months more.
2. The case of prosecution as per F.I.R is that on 04.10.2013 complainant Mst. Shabiran wife of Shaman Pathan alongwith her brother Ghulam Shabir and maternal uncle Ghous Bux were standing in the street and her daughter Kiran aged about 14/15 years being un-married was going towards School, when she reached near house of Dost Muhammad Jamali, three persons came over there on two motorcycles; the complainant party identified one of them, to be Sulleman alias Siloo, whereas two persons were not known to complainant party. The accused persons took out pistols from their folds and aimed the same upon complainant party, while accused Sulleman alias Siloo forcibly dragged daughter of complainant, namely, Kiran and abducted her. Ultimately, the complainant registered the F.I.R.
3. On completion of usual investigation, the investigation officer submitted charge sheet against appellant and after completing the formalities charge was framed against the appellant to which he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove the case against the appellant examined PW/ ASI Qurban Ali at Ex.12, who produced copy of CNIC of complainant Mst. Shabiran, copy of F.I.R, copies of entries No.4 and 5, memo of place of incident at Ex.12-A to Ex.12-E. PW-2 complainant Mst. Shabiran was examined at Ex.13. PW-3 Ghous Bux was examined at Ex.14. PW-4 Mst. Kiran at Ex.15 and mashir Gada Hussain was examined at Ex.16. Then, learned Prosecutor closed side of prosecution vide his statement Ex.17. The statement of appellant was recorded under Section 342 Cr.P.C. at Ex.18, in which he denied the prosecution allegations against him and also denied to examine himself on oath and to lead evidence in his defence.
5. The learned trial Court on conclusion of trial passed the impugned judgment whereby convicting and sentencing appellant, as stated above.
6. Learned counsel for the appellant criticized the impugned judgment and argued that, the prosecution witnesses are closely related inter-se, and no independent witness has been examined by the prosecution at trial. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further submitted that, there was delay of two days in reporting the matter to police, as such question of consultation and false implication of appellant could not be ruled out and this fact of consultation has been admitted by complainant in her evidence that she consulted with her brothery and thereafter she lodged the F.I.R. Learned counsel further contended that the alleged abdcutee was not recovered from the possession of the appellant and that there is also no any medical evidence to support the version of complainant/ prosecution. Learned counsel lastly submitted that, entire case is doubtful the benefit doubt must go in favour of the accused. He prayed that appeal may be allowed and the appellant may be acquitted.
7. Learned D.P.G. controverted the arguments of learned appellant’s counsel and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction. He further added that abductee as well as rest of prosecution witnesses have fully supported the case of prosecution by implicating the appellant in the commission of offence; that ingredients of Section 365-B P.P.C are fully attracted and proved against the appellant.
8. Learned advocate for the complainant had argued that all the witnesses supported the case; that no major contradictions were pointed out by the defence counsel; that minor contradiction cannot be considered for giving benefit of doubt; that though there is no medical evidence but prosecution proved the case by producing oral evidence. Lastly he prayed that appeal of the appellant may be dismissed.
9. I have heard learned counsel for the appellant, learned Advocate for complainant and learned Deputy Prosecutor General, so also perused the entire record / evidence with their able assistance.
10. On the assessment of evidence produced by the prosecution, it is established that the prosecution has failed to prove its case against the appellant beyond shadow of doubt.
11. The delay of two days in registration of FIR has not been explained by the complainant, however, abductee Mst. Kiran deposed in her examination-in-chief that on the same day she left the house, where she was detained and reached at the house of her aunty Akhtiar and on next day her father came and brought her at Sijawal, which gave picture that on the same day viz. 04.10.2013 she came back and on 05.10.2013 her father brought her at Sijawal, whereas F.I.R was registered on 06.10.2013 and in the F.I.R complainant did not disclose that abductee Mst. Kiran returned back, which suggests that F.I.R was lodged with false facts. It is also observed that in the F.I.R complainant admitted that the same was registered after consultation with the elders.All these facts are fatal to the prosecution case and make it doubtful. Reliance can be placed on the case of Haider Ali and others v. State (2016 SCMR 1554), the honourable apex court acquitted the appellants while appreciating / discussing such conduct of the victim. The relevant portion of the judgment reads as:-
"3. After hearing the learned counsel for the parties and going through the record we have observed that the FIR in this case had been lodged with a delay of one day and the complainant had stated before the trial court in so many words that the FIR had been lodged after consultation and deliberations. The solitary witness of the alleged gang-rape was none other than the alleged victim herself namely Mst. Sumera Bibi who was a young girl aged about fourteen years. To start with, we have found the story advanced by the alleged victim to be hard to believe because she had alleged that as many as three persons had committed rape with her repeatedly at about 06.00 P.M in some bushes available near a Sunday bazaar. That story was changed during the trial and it was alleged that the alleged victim had in fact been subjected to gang-rape not in some bushes near a Sunday bazaar but in an under-construction house. Such change of the place of occurrence has been found by us to be irreconcilable pointing towards falsehood of the story. .."
12. From the evidence of the witnesses it is established that the incident was unseen incident, the complainant while deposing in her examination-in-chief deposed that when her daughter reached near house of Ghous Bux, three persons arrived on motorcycle, and she identified one of them as Sulleman (appellant). Whereas, the abductee Mst. Kiran during her cross-examination deposed that on the day of incident she was alone when the incident took place and she threw her bag at the place from where the accused persons took her. While, PW Ghous Bux deposed that he alongwith Shabiran, Ghulam Shabir and Mst. Kiran were available in the street; where from Mst. Kiran was abducted. From assessment of this piece of evidence of complainant Shabiran, abductee Kiran and eyewitness Ghous Bux it is established that complainant and PW Ghous Bux were not the eyewitness of the incident.
13. Complainant in her examination-in-chief deposed that the accused had taken her daughter to Larkana, where they committed Zina with her and her daughter returned home after few days, whereas abductee Mst. Kiran in her examination-in-chief deposed that accused Sulleman had asked her to have married with him, otherwise he would commit Zina with her, and in the meantime accused received telephone call and left her alone in the room and the other woman present there, went inside wash room, to whom she locked and then left house and caught rickshaw and came to house of her aunty Mst. Akhtiar. However, she did not allege that she was subjected to Zina.
14. Abductee Mst. Kiran in her examination-in-chief deposed that on the same day she left the house, where she was detained and went to the house of her aunty Mst. Akhtiar, where she stayed a night and on the next day her father came and brought her at Sijawal. However, during cross-examination she has contradicted same version by stating that she was confined for two days and she did not take any food or water for about two days.
15. The important witnesses of the case were aunty of abductee, namely, Mst. Akhtiar, where abductee came back after escaping from custody of accused and stayed with her for a night and rickshaw-driver who brought abductee from jungle to the house of her aunty; the father of Kiran who brought the abductee from the house of her aunty to Sijawal,were not examined by the prosecution before the trial Court. Even the motor cycle on which abductee was taken by the accused nor the car was recovered, on which as per abductee, she was shifted from motorcycle.
16. It is further observed that the place where abductee Mst. Kiran was detained was not inspected by the investigating officer of the case nor any efforts were made for the identification and tracingthe said lady, who was stated to be available in the house of accused.
17. There is no medical evidence in support of allegation of Zina. Abductee Mst. Kiran during her cross-examination had deposed that the police did not get her medical checkup. However, PW ASI Qurban Ali the I.O of the case deposed in his examination-in-chief that Mst. Kiran was produced before learned Magistrate for recording her statement under Section 164 Cr.P.C. and learned Magistrate had issued directions to refer her for medical examination, to which she (Mst. Kiran) refused, and the statement under Section 164 Cr.P.C was not recorded due to such reasons. The I.O during cross-examination deposed that he tried his level best to examine the other persons of locality except witnesses of complainant, who disclosed in presence of complainant party that Mst. Kiran (abductee) was the fiancé of accused Abdul Rehman and she was engaged with him.
18. The witnesses have admitted that appellant Sulleman is residing near their house and they have also admitted that both the parties were on inimical terms. P.W Ghous Bux admitted during cross-examination that he had dispute with father of accused over the possession of house. He further deposed that father of accused occupied house of complainant after the incident of abduction.
19. In the last, I would add that the Court (s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Honourable Supreme Court in case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), has held as:-
"29. The plea of the learned ASC for the complainant and the learned Additional prosecutor General, Punjab that because the complainant party was having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced shall be believed, is entirely misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer v. The State (PLD 1991 SC 447)."
20. Thus based on the above discussion, I am of the view that prosecution has failed to establish its case against the appellant beyond any reasonable doubt. The concept of benefit of the doubt to an accused person is deep-rooted in our country. For giving the accused the benefit of the doubt there does not need to be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right as has been held by Honourable Supreme Court of Pakistan in case Tariq Pervez v. The State(1995 SCMR 1345). I, therefore, allow the appeal filed by the appellant Abdul Rehman alias Sulleman alias Siloowith the result that the conviction and sentences awarded by the trial court vide judgment dated: 31.10.2019are set-aside and he is acquitted of the charges by extending him the benefit of the doubt.
21. These are the reasons of my short order dated: 07-12-2020.
JUDGE