2016 SCMR 267

2016 S C M R 267

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

MUHAMMAD NAWAZ and others—Appellants

Versus

The STATE and others—Respondents

Crl. Appeals Nos. 329-L, 330-L of 2012 and 163-L of 2013, decided on 4th December, 2015.

(Against the judgment of the Lahore High Court, Lahore dated 19-1-2012 passed in Crl. A. No. 1849 of 2009, Crl. A. No. 1836 of 2009 and Crl. A. 386-J of 2009)

(a) Penal Code (XLV of 1860)—

—-Ss. 449, 376(2) & 392— House-trespass to commit robbery and rape—Re-appraisal of evidence—Benefit of doubt—Delay of a month in lodging FIR—Unnatural conduct of victim in not raising hue and cry during rape—Probability of false implication—Absence of medical report/opinion on record—Doubtful extra judicial confession—Details of robbed articles not provided in the FIR— Accused persons were acquitted of the charges against them by extending them benefit of doubt.

In the present case, matter was reported to the police thirty days after the occurrence, and explanation offered by the complainant for such delay was highly improbable. Witnesses of the ocular account made contradictory statement about the occurrence. Conduct of both the complainant and victim was highly improbable as they did not raise hue and cry during or after the occurrence. Possibility of false implication of the accused persons could not be ruled out especially when the alleged victim stated during her cross-examination that FIR was registered after the arrival of her father who consulted with witnesses. Doctor who medically examined the victim, did not submit her final opinion as she did not receive the report of Chemical Examiner. During cross-examination doctor categorically stated that in the absence of Chemical Examiner’s report, she could not say whether the victim was subjected to rape or not. Witnesses of alleged extra judicial confession did not state the exact date and time of the confession made by the accused persons, and they also did not claim that accused persons had narrated the mode and manner of the occurrence. Prosecution claimed that one of the accused persons was armed during the occurrence, however during course of investigation no weapon was recovered. Some articles allegedly robbed during the occurrence were recovered at the instance of accused persons, however, complainant had not given any description of robbed articles in the FIR. Convictions and sentences recorded against accused persons were set-aside in circumstances by extending them benefit of doubt. Appeal was allowed accordingly.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

(b) Criminal Procedure Code (V of 1898)—

—-S. 342—Evidence—Conviction and sentence—Scope—Piece of evidence not put to an accused during his/her examination under S.342, Cr.P.C., could not be used against him/her for maintaining conviction and sentence.

(c) Criminal trial—

—-Recovery evidence, relevance of—Corroborative piece of evidence—Relevant only when primary evidence i.e. ocular account inspired confidence.

Dost Muhammad Kahoot, Advocate Supreme Court for Appellants (in Crl. As. 329-L of 2012 and 163-L of 2013).

Nemo for Appellants (in Crl. A. 330-L of 2012).

Perveiz Iqbal Gondal, Advocate Supreme Court for the Complainant.

Asjad Javed Ghurral, Additional P.-G. for the State.

Date of hearing: 3rd December, 2015.

JUDGMENT

MANZOOR AHMAD MALIK, J.—Muhammad Nawaz (appellant in Crl. Appeal No.329-L of 2012), Javed (appellant in Crl. Appeal 330-L of 2012) and Shahid Imran (appellant in Crl. Appeal No.163-L of 2013) were accused in case FIR No.537/2007 dated 23.07.2007 offence under sections 449, 392, 376 and 411, P.P.C. registered at Police Station Sadar Mandi Bahauddin, District Mandi Bahauddin. They were tried by the learned Additional Sessions Judge Mandi Bahauddin and vide judgment dated 15.10.2009, all the appellants were convicted under sections 449, 376(2) and 392, P.P.C. and sentenced as under:-

“So, I accordingly convict all the three accused persons as they committed the offence under their common intention under section 449, P.P.C. for committing house trespass to commit the offence of robbery and rape and sentence the accused to ten years RI with a fine of Rs.20,000/- and in default of payment of fine, each accused will undergo further one year SI. Similarly, I convict all the three accused under section 376(2), P.P.C. for committing rape with PW.1 and sentence all the three accused to imprisonment for life. Likewise, I convict all the three accused persons under section 392, P.P.C. for committing robbery and sentence them to imprisonment for ten years with a fine of Rs.20,000/- each. In default of payment of fine, each accused will undergo further simple imprisonment for one year.”

Javed (appellant) was further convicted under section 411, P.P.C. and sentenced to rigorous imprisonment for three years with a fine of Rs.10,000/- and in default of payment of fine, he was ordered to undergo further simple imprisonment for six months.

  1. Assailing their convictions and sentences, Javed, Muhammad Nawaz and Shahid Imran preferred Crl. Appeal No.386-J of 2009, Crl. Appeal No.1836 of 2009 and Crl. Appeal No.1849 of 2009, respectively, which were heard by a learned Single Judge of the Lahore High Court Lahore and dismissed through a consolidated judgment dated 19.01.2012 maintaining the convictions and sentences awarded to the petitioners by the learned trial court. Thereafter Muhammad Nawaz and Javed preferred Crl. PLA No.551-L of 2012 and Jail Petition No.201 of 2012, respectively wherein leave was granted vide order dated 11.12.2012, which is reproduced as under:-

“Criminal Petition No.551-L, of 2011(sic.) and Jail Petition No.201 of 2012

It has inter alia been contended by the learned counsel for Muhammad Nawaz petitioner that the occurrence in this case had taken place during a night; the FIR in this case had been lodged after a delay of one month despite the fact that the complaint’s(sic.) husband was an employee of the police department; the medical examination of alleged victim of rape had taken place after one month of the alleged occurrence; in the medical examination no mark of violence had been found on any part of the victim’s body; no semen had been detected by the Chemical Examiner on the vaginal swabs of the victim; the High Court had itself declared the eyewitnesses produced by the prosecution as “interested” witnesses; the extra-judicial confessions allegedly made by the petitioners had the trappings of a joint confession which is inadmissible in evidence; the entire case of the prosecution was replete with serious doubts the benefit of which ought to have been extended to the petitioners; and, thus, the learned courts below were not justified in convicting and sentencing the petitioners.

  1. The contentions of the learned counsel for the petitioner in Criminal Petition No.551-L of 2012 noted above require a detailed reappraisal of the evidence so as to secure the interests of justice. Both these petitions are, therefore, allowed and leave to appeal is granted therein for the purpose.”

In Criminal Petition No.121-L of 2013 leave was granted vide order dated 05.03.2013, which is reproduced as under:-

“2. Upon acceptance of Criminal Petition No.551-L of 2012 and Jail Petition No.201 of 2012 on 11.12.2012 leave to appeal has already been granted by this Court for the purposes of a detailed reappraisal of the evidence vis-a-vis the petitioner’s co-convicts namely Muhammad Nawaz and Javed. The case against the present petitioner is not substantially dissimilar to the case against the said co-convicts. This petition is, therefore, also allowed and leave to appeal is granted in the same for a detailed reappraisal of the evidence so as to secure the interests of justice.

  1. Let the appeal arising out of the present petition may be heard along with the appeals arising out of the above mentioned Criminal Petition No.551-L of 2012 and Jail Petition No.201 of 2012.”
  2. The machinery of law was set in motion on the statement (Exh.PA) of Mst. Rehana Kausar complainant (PW.2) on the basis whereof formal FIR (Exh.PA/1) was registered on 23.07.2007. Precise but relevant facts of the prosecution case are that on the intervening night of 24th and 25th of June 2007 the complainant along with her daughter namely Naveela Tabassum victim (PW.1) were sleeping in their house. At about 01:00 a.m. (night) the complainant woke up and found door of one room open whereas a male person was standing on the other side. Thereafter three unknown persons with muffled faces came near the complainant. One assailant who was armed with a pistol gave a butt blow to the complainant and by awakening the daughter of the complainant took her into a room. Thereafter they searched both the rooms of the complainants house, forcibly took away gold ornaments of the complainant, fastened her with the clothes and committed rape one after the other with Mst. Naveela Tabassum. It was further averred in the FIR by the complainant that she identified Muhammad Nawaz whereas the two other assailants disclosed their names as Shahid Imran and Javed.
  3. The appellants were charged under sections 449, 376, 392 and 411, P.P.C. After conclusion of the trial, they were convicted and sentenced as detailed above and their appeals failed before the learned Lahore High Court, Lahore. Hence these appeals.
  4. After hearing Mr. Dost Muhammad Kahoot, ASC on behalf of Muhammad Nawaz (appellant in Criminal Appeal No.329-L of 2012) and Shahid Imran (appellant in Criminal Appeal No.163-L/2013), Mr. Pervaiz Iqbal Gondal”, Advocate Supreme Court on behalf of the complainant, Mr. Asjad Javed Ghural, Additional Prosecutor General for the State and after perusing the record as well as impugned judgment we have observed as under:-

(a) The occurrence took place on the intervening night of 23rd and 24th of June, 2007 whereas the matter was reported to the Police on 23.07.2007 i.e. thirty days after the occurrence. The explanation offered by the complainant is to the effect that her husband Iftikhar Ahmad was a police employee posted at Lahore and on her telephone call when said Iftikhar Ahmad reached home the case was reported to the Police. This explanation is highly improbable because the complainant did not utter a single word as to what prevented her from calling her husband prior to 22.07.2007. The alleged victim Volunteered during her cross-examination that other inmates of the village were informed that there was a theft in the house, however, names of the accused were not disclosed. Moreover, Muhammad Sharif (PW.6) who is real brother of Iftikhar Ahmad, brother in law (dewar) of the complainant and paternal uncle (chacha) of the victim lived in the same village and he categorically stated while appearing before the learned trial court that Iftikhar Ahmad also came there but went away. Therefore, the witnesses of ocular account made contradictory statements on this aspect of the case. In the circumstances, inordinate delay of 30 days in reporting the crime to the Police remained unexplained, which creates serious dents in veracity of prosecution story.

(b) Conduct of both the witnesses of ocular account i.e., Mst. Naveela Tabassum (PW1) and Mst. Rehana Kausar (PW2) is highly improbable as they did not raise hue and cry, during the occurrence or after the occurrence. Possibility of false implication of the appellants also cannot be ruled out especially when the alleged victim (PW.1) stated during her cross-examination that FIR was registered after the arrival of her father who consulted along with witnesses.

(c) Allegation of rape has been leveled against the appellants in the FIR as well as by both the witnesses of ocular account while appearing before the learned trial court but the said allegation could not be substantiated during the trial as Dr. Khalida Zeshan (PW.9) who medically examined the victim mentioned in the MLR (Ex.PC) that final opinion will be submitted after receipt of report of Chemical Examiner. No final opinion was submitted and during the course of her cross-examination, she categorically stated that in the absence of report, she could not say whether the victim/girl was subjected to rape or not. Therefore, in the absence of medical opinion, the charge of rape could not be proved by the prosecution. There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence.

(d) Evidence of the alleged extrajudicial confession made by the appellants before Muhammad Sharif (PW.6) and Mehdi (PW.7) also cannot be used against the appellants for various reasons: Firstly according to both the witnesses of extrajudicial confession all the three appellants came together but confessed their guilt one after the other; secondly none of the witnesses of extra judicial confession stated the exact date and time of the confession made by the appellants; thirdly according to Muhammad Sharif (PW.6) the appellants had come to him on the next day of the occurrence and according to Mehdi (PW.7) occurrence had already taken place 2/3 days prior to confession of guilt of the appellants but the FIR was got registered thirty days after the alleged occurrence and under the circumstances in view of the specific assertion of Mehdi (PW.7) during his cross-examination that at that time when the appellants approached them, FIR was not lodged, it does not appeal to a prudent mind as to what prompted the appellants to confess their guilt; and fourthly it was never claimed by the witnesses of extra judicial confession that the appellants had narrated the mode and manner of the occurrence, therefore, the testimony of both the witnesses of extra judicial confession does not hold much water.

(e) It is also case of the prosecution that one of the assailants was armed with a pistol who allegedly inflicted the butt blow of pistol at the shoulder of Mst. Rehana Kausar complainant (PW.2). While appearing before the learned trial court both the witnesses of ocular account stated that Javed (appellant) was the assailant who was armed with a pistol but no such pistol was recovered during the course of investigation.

(f) During the occurrence, certain gold ornaments, identity card and bag of the complainant were snatched by the appellants. During the course of investigation some articles allegedly robbed during the occurrence were allegedly recovered at the instance of the appellants. No description of the robbed articles was given by the complainant in the FIR. The complainant whose ornaments/articles were allegedly robbed during the occurrence and who allegedly identified the same, during her cross-examination, affirmatively responded to the suggestion that the gold ornaments referred above could be purchased from the goldsmith’s shop. Therefore, it is highly unsafe to rely on the evidence of recovery, which even otherwise is a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspires confidence.

  1. This Court in the case titled “Ayub Masih v. The State” reported as PLD 2002 SC 1048 observed as under:-

“…It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antitheses of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.”

Resultantly these appeals are allowed. Convictions and sentences recorded against the appellants by the learned Additional Sessions Judge Mandi Bahauddin and maintained by the learned Single Judge Lahore High Court Lahore are set aside and the appellants are acquitted of the charges framed against them. They are behind the bars and ordered to be released forthwith if not required to be detained in any other case.

MWA/M-55/SC Appeal allowed.

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