IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Crl. Appeal No.S-70 of 2020

 

Appellant                   Zahid s/o Khan aliasKhanan Chandio,

                                  Through Mr.Ghulam Sarwar Abdullah Soomro, Advocate

 

The State:                   Through Mr. Aitbar Ali Bullo, D.P.G.

 

Date of hearing:                  13-04-2023

Date of decision:         13-04-2023

 

JUDGMENT

 

Zulfiqar Ali Sangi,J;- Through listed Criminal Appeal, appellant Zahid s/o Khan @Khanan Chandio impugns the judgment dated 18.11.2020, delivered by learned Additional Sessions Judge-IV, Dadu/Gender Based Violence Court, in Sessions Case No.217/2020, (Re: Zahid Chandio Vs. The State), emanating from FIR bearing Crime No.74/2020,registered with P.S,K.N.Shah, for offence under Section 376, 511 PPC, whereby he was only convicted for offence punishable U/S.511 PPC and sentenced to sufferrigorous imprisonment forFive years with fine of Rs.100,000/-,and in defaultwhereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.P.C.

2.                          The concise facts of prosecution case are that on 11.04.2020, at 2030 hours, complainant Niaz Hussain Chandio lodged FIR with P.S,K.N.Shah, in which he mentioned that he is laborer and on 04.04.2020, he alongwith his cousin Muhammad Khan and son-in-law Abdul Hakeem Chandio while were chit-chatting at their land, in the meantime, at about 3.00 p.m,on hearing cries, they went inside wheat crop and found accused Zahid naked who while removing trouser of her daughter baby Kainat aged about 10/11 years was attempting to commit rape with herand she was crying,on which the complainant party raised hakals whereupon the said accused leaving baby Kainat and taking his Shalwarmade his escape good towards village. The complainant after putting-on trouser to her daughter went to his house. On 06.04.2020, the complainant owing to feeling ill by her daughter, took her and after obtaining letter for her treatment from P.S thenwent to Taluka Hospital K.N.Shah, where WMO examined and provided treatment to her. Thereafter, the complainant came at police station and reported the incident with police.

3.                          On completion of usual investigation, the investigation officer submitted final report under Section 173 Cr.PC before the Court of concerned Judicial Magistrate. Thereafter, the formal charge was framed against the accused by learned trial Court, to which he pleaded not guilty and claimed trial.

4.                          In order to substantiate the charge, the prosecution examined as many as six witnesses, who all produced certain relevant documents and items in support of their statements. Thereafter, learned State Counsel closed its side.

5.                          Accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence.He however, neither examined himself on oath nor led any evidence in his defence.

6.                          On assessment of evidence and hearing the counsel for the parties, learned trial Court convicted and sentenced the appellant, as detailed above.

7.                          Per learnedcounsel for the appellant,the appellant is innocent and has falsely been arraignedin this case by the complainant with ulterior motives; that the FIR has been lodged with unexplained delay of seven days which reflects consultation and  deliberation;that D.N.A report is not matching; that there are material contradictions in the evidence of complainant and alleged victim and the mode and manner of the occurrence of rape does not appeal to the prudent mind; that the medical evidence is in conflict with the ocular account; that the victim made material improvements in her evidence; that in fact there is demand of the complainant for the transfer of landed property in her name which was the sole reason to falsely implicate the appellant in this case. He lastly, prayed that learned trial Court has erroneously convicted and sentenced the appellant without proper appraisal of evidence through the impugned judgment which is liable to be set aside and the appellant may be acquitted of the charge by allowing instant appeal.

8.                          Conversely, learned D.P.G for the State while supporting the impugned judgment submits that the appellant/accused is involved in this case with specific role of attempt to commit rape with minor girl; that D.N.A report though is in negative but the overall circumstances/evidenceif considered, constitutes the offence holding the appellant responsible for commission of the incident; therefore, the prosecution has succeeded in establishing the charge against the appellant by producing reliable, trustworthy and confidence inspiring evidence;that the delay in lodging of FIR has properly been explained by the complainant; that testimony of the victim and her medical examination are important pieces of evidence in this case and the victim has fully implicated the appellant in her evidence.  Summing up his contentions, he further added that minor contradictions in the evidence of the witnesses will not affect the credibility of the evidence of the victim or create any doubt or dent in the prosecution case and thus lastly prayed for dismissal of the instant criminal appeal.

9.                          Heard learned counsel for the parties and perused the material made available on the record with their able assistance.

10.                       The ruthless and ghastly offence of attempt to commit rape by accused with a girl of 10/11 years of age is a crime of heinous nature but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. The rule is that the cases are to be decided on the basis of evidence and the evidence alone, and not on the basis of sentiments and emotions.The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution on each and every aspect of the case but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The broad features involved in this case are that the incident took place on 04-04-2020 and as per the version of complainant, the appellant was identified at the spot but the FIR was registered on 11-04-2020for which no any plausible explanation has been furnished by the complainant. It is also alleged by the complainant that victim baby Kainatfelt some health problem on 06-04-2020, therefore, he approached the police for letter of her treatment and she was examined by the lady doctor, though on 06-04-2020, the complainant approached at the police station inspite of that he did not lodge the FIR nor he disclosed the name of accused to the police, even the entry with regard to the incident was not kept.Normally,the delay in lodgment of FIR is notproved fatal in all the cases as it never washes away nor torpedoes trustworthy and reliable ocular and circumstantial evidence, as has been held by the Supreme Court of Pakistan in cases of ZarBahadar v. The State(1978 SCMR 136) and Sheraz Asghar v. The State(1995 SCMR 1365), there is no cavil to the proposition, however, in absence of any plausible explanation, the Supreme Court has always considered the delay in lodgment of FIR to be fatal and casted a suspicion on the prosecution story, extending the benefit of doubt to the accused. The FIR is always treated as a corner-stone of the prosecution case to establish guilt against those, involved in a crime; thus, it has a significant role to play. If there is any delay in lodgment of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anybody else except to the accused.In case of Iftikhar Hussain and others v. The State (2004 SCMR 1185), it was held that the FIR lodged after conducting an inquiry loses its evidentiary value.In case of Zeeshan @ Shani v. The State (2012 SCMR 428), it was held that delay of more than one hour in lodgment of FIR giving rise to the inference that the occurrence did not take place in a manner projected by the prosecution and the time was consumed in making effort to give a coherent attire to the prosecution case, which hardly proved successful. In the case in hand, the distance from the place of incident and the police station was 3/4 kilometers,even otherwise, after two days of the incident when the complainant approached to police but he did not lodge the FIR. The Supreme Courtof Pakistan in case of Noor Muhammad v. The State(2010 SCMR 97) has held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodgment of FIR, such time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. It was also held by the Supreme Court of Pakistan in case of Muhammad Fiaz Khan v. Ajmer Khan(2010 SCMR 105) that when the complaint filed after a considerable delay, was not explained by complainant then in such situation it raises suspicion as to its truthfulness. Thus, I am of the considered view that in the facts and circumstances of case in hand, the explanation given by the prosecution is not plausible and such delay in registration of FIR makes the entire case as doubtful.

11.               The evidence, so produced by the prosecution on its careful scrutiny, is found to be unreliable and untrustworthy. The complainant being star-witness was available at the lands in wheat crop together with his witnesses including victimwho is said to be a girl of 10/11 years of age and the accused is stated to be aged about 18 years, their height must be above 05 feet or in between 04 to 05 feet(as per mashirnama of arrest of accused, his height is 05/08 feet)and normally the height of wheat crop is not above 03 to 04 feet and in such situation, in presence of parents of victim girl,it is beyond imagination that the accused can dare to commit a heinous offence of attempt to commit rape at the place where several other persons were also available and the place is not of such standard to conceal a person of about 05 feet’s height. This aspect of the case singularly is sufficient to hold the story in respect of the offence to be managed and concocted one. Further,it came in the evidence that accused is co-villager of the complainant party and they are knownto each other, again it is not possible for a person to commit an offence as alleged in the present case in presence of parents of a girl in day time without having any weapon or by using any force or threat. Even otherwise, the presence of victim at the relevant time at place of incident is doubtful and if it is believed to be true that the victim was available then the presence of complainant and the other witnesses is doubtful. The victim during her cross-examination stated that she alongwith two sons of her paternal aunt went to collect the wheat crop and stated their names as Sanwal and Adeel, however, the complainant did not disclosethe availability of Sanwal and Adeel with victim in his FIR or during course of his evidence. From this aspect of the case, it is established that the complainant and the victim are telling lie. It is settled law that the evidence of a liar cannot be relied upon for awarding conviction.

12.               Surprisingly, the prosecution has no-where alleged that the victim was subjected to rape by the accused but her semen-stained clothes were sent for DNA alongwith the sampleof blood taken from the appellant. The complainant who is real father of victim and the victim herself deposed that only an attempt was made by the accused, both of them have not deposedeven a single word that any semen was available on the clothes of victim. The complainant during cross-examination stated that they changed and washed the clothes of victim and then brought her at police station. It has also come in evidence that at the first time, victim was brought at police station on 06-04-2020, two days after the alleged incident. The clothes of the victim were handed over to the police by the complainant on 12-04-2020,eight days after the incident when the same were already washed, then how the semen would remain available on such clothes, sent by Dr. SahrishKanwal WMO Taluka Hospital K.N Shah for DNA on 06-04-2020 through Letter No.647/2020 dated: 06-04-2020 and the report was called through letters MLC No.312/2020 available at Page No.61 of the paperbookand letter MLC-out word No.342(A) dated:14-04-2020 available at Page No.63 of the paper book. Again, it is astonishing that how the samples were taken from the trouserand were sentbyDr.SahrishKanwal WMO Taluka Hospital K.N.Shahon 08-04-2020 when the clothes werehanded over by father of the victim (as per his evidence)to police on 12-04-2020 which is also supported by the mashirnama dated: 12-04-2020 available at Page No.31 of the paper book.Further, from the DNA report issued by the Forensic & Molecular Biological Laboratory, DNA Testing (Liaquat University of Medical & Health Sciences, Jamshoro, Sindh, Pakistan), available at Page No.47 and 67of the paper book reflects that the samples were received at Laboratory on 04-05-2020, through ASI Imam Bux Khoso.Dr.SahrishKanwal WMO Taluka Hospital K.N.Shah has not mentioned even a single word in the provisional or final medical certificates that she took the samples from clothes of victim girl for DNA or otherwise.Investigation officer ASI Imam Bux Khoso in his examination-in-chief deposed that on 11-04-2020, he received clothes of the victim and samples from doctor at 1600 hours and prepared such mashirnama which is too against the evidence of complainant and the mashirnama available at Page No.31 of the paperbook which reflects that the clothes were handed over to him by the complainant on 12-04-2020. The investigation officer further deposed that on 11-05-2020 he recorded further statements of the witnesses who stated that no such incident had taken place and on that basis, he recommended the case to be disposed of under “C” class but the Magistratedirected him to file challan against the accused, hence he filed the same. All these facts as discussed above reflect that Investigation officer ASI Imam Bux Khoso and Dr.SahrishKanwal WMO Taluka Hospital K.N.Shah have managed all the papers and the samples with dishonest intention only for the purpose of getting wrongful gain and on that basis, an innocent person was charged, tried and convictedin a false case.Dishonesty of the investigation officer is further evident from fact that the complainant alleged that the incident took place on 04-04-2020, the victim was examined by the police on 06-04-2020 and by Dr.SahrishKanwal WMO Taluka Hospital K.N Shah on 07-04-2020 and the FIR was registered on 11-04-2020, clothes of the victim were handed over to police by the complainant on12-04-2020 but investigation officer ASI Imam Bux Khoso inspected the place of incident on 15-03-2020, one month prior to the incident as is obvious from the mashirnama of place of vardat available at Page No.27 of the paper book.

13.               The prosecution examined P.W/Dr.Abdul Hameed who deposed that on 14.04.2020 he received police letter for medical examination of accused Zahid son of Khan @ Khanan Chandio, as such he examined him on the same day and pre pubic and pre penal swabs were taken out for the chemical detection of human sperms or otherwise and sent to LUMHS for the purpose of DNA. After collection of DNA report, he issued Final Medical Certificate on 24.09.2020, with following opinion.

I am of the opinion that injury is declared on the basis of DNA there has not been sexual act performed to the passive side (Kainat). The report is as under:-

"The male DNA profile obtained from semen analysis/sperm fraction identified on the item 2.0 and item 3.0 (green color piece of shalwar and cloth of victim baby Kainat d/o Niaz Hussain) does not share the required alleles with DNA profile obtained from item No. 4.0 (blood sample of accused Zahid son of Khan Muhammad Chandio). The item No.1.0 (vaginal swab samples of victim baby Kainat d/o Niaz Hussain) does not contain any male DNA/semen stain/sperm fraction."

14.               PW-5/WMO Dr.SahrishKanwalin her evidencedeposed that on 07.04.2020, while posted as WMO at Taluka Hospital, K. N. Shah, she received police letter No.647 for medical checkup of Baby Kainat d/o Niaz Hussain Chandio. She conducted medical examination of baby Kainat and found the following;

                    1.       Abrasion measuring 2 x 1 c.m on post surface of left forearm on upper 1/3.

                    2.       Abrasion measuring 6.5 x 0.2 c.m on post surface of right thigh on upper 1/3 portion middle.

                    3.       Abrasion measuring 6.5 x 0.1 c.m on post surface of right thigh on upper 1/3 part in middle below and abrasion.

                    4.       There is no any bruises hear @ parietal area; hymen seems to be intact.

                    She issued such provisional medical certificate and on 19.10.2020, receiving DNA report with police letter No.1750, sheissued final medical certificate with final opinion.”        

OPINION

“I am of the opinion from provisional certificate that the marks of violence were present/seen on body of injured/complainant baby Kainat d/o Niaz Hussain Chandio and from DNA report semen/stains/sperm fractions identified on injured complaint clothes pieces of shalwar and clothes (Kameez and Shalwar),So I have the opinion that attempt of sexual assault has been committed but not matched with accused Zahid son of Khan Muhammad Chandio’s blood sample DNA.

 

                    The woman medical officer in her cross examination stated as under:-

 

When victim came to me, she was conscious. The color of injuries was dark brown at the time of examination. Date and time of offence informed by the mother of victim. It is correct to suggest that the kind and the manner of abrasion on the person of injured is not mentioned by me in the MLC. It is fact that bleeding can come from abrasion. I do not remember that whether or not the clothes produced before me was the blood stained. I collected the clothes which were worn by the victim at the time of examination.It is correct that in MLC it is mentioned that “hymen is intact” hence the sexual intercourse has not been committed. It is correct to suggest that no single hair of accused was found around the vagina and person of victim. I do not remember whether the trouser of victim was stained with sperm spots of the accused or not. It is correct that I issued final MLC on the basis of report of DNA. It is correct to suggest that DNA profile of accused was not matched. It is correct to suggest that victim did not make complaint of any abdomen pain. It is incorrect to suggest that I have issued the Medico legal certificate at the instance of complainant and the police.”

15.               The oral as well as documentary evidence,as discussed above, reflect that the case was mishandled by the investigation officer and the WMO Taluka Hospital K.N.Shah for some illegal means. Though, WMO during her cross-examination stated that she collected the clothes worn by the victim at the time of examination but she did not mention such fact in the documents, so prepared and produced by her. There was no need to take the samples of clothes at the time of examination which was conducted three days after the incident,for the reason that the same clothes were not worn by the victim at the time of incident and the clothes worn by the victim at the time of incident were changed and were washed on the day of incident,as is stated by the complainant in his evidence who is real father of the victim and the same were produced before the police eight days after the incident and five days from the medical examination. Further,it is apparent from the evidence of WMO that some injuries were available on the person of the victim and were declared by WMO to be caused with hard and blunt substance but the ocular account is totally silent to it and that the prosecution did not justifythat the victim received any injury at the time of incident, therefore, in such a crucial situation,the conviction cannot be maintained. The Court(s) never be influenced with severity of the offence while appreciating the evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even in 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. Reliance in this regard can be placed upon case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of doubt is essentially a rule of prudence which cannot be ignored while dispensingjustice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (Peace Be Upon Him) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".  The prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution". The Supreme Court in another case of ShamoonaliasShamma v. The State(1995 SCMR 1377), held that, "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise.” Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

16.               The over-all discussion arrived at conclusion that the prosecution has miserably failed to establish the guilt against present appellant beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on case of Muhammad Mansha v.The State(2018 SCMR-772)wherein the  Supreme Court of Pakistan has held that:-

“4.        Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749)”.

17.               The sequel of above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence; consequently, the instant criminal appeal is allowed; the conviction/sentence awarded to appellant by way of impugned judgment could not be sustained, it is set aside and he is acquitted of the charged offence. He is present on bail, his bail bond is cancelled and surety discharged. Office is directed to return the surety papers to the Surety after proper verification and identification.

18.               The instant Criminal Appeal is disposed of in above terms.

 

 

                                                                                                                                 JUDGE