GHULAM MOHAY-UD-DIN alias BAOO Versus State

June 12, 2012LAHORE HIGH COURT LAHORE Honorable Justice Rauf Ahmad Sheikh Rai Muhammad Hussain Kharal , Mian Muhammad Awais Mazhar 2012 PCrLJ 1903
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JUDGMENT
RAUF AHMAD SHEIKH, J.--The appellant has assailed the vires of judgment dated 5-3-2010 passed by Mr. Shaukat Kamal, learned ASJ, Faisalabad, in case F.I.R. No.334 of 2008 dated 31-3-2008 Police Station Saddar Faisalabad under section 376/34, P.P.C., whereby he was convicted under section 376, P.P.C. and was sentenced to 10 years' RI and a fine of Rs.50,000. It was further ordered that in case of default in payment thereof he will undergo Sl for six months. However, the benefit under section 382-B, Cr.P.C. was extended to him.
2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PA/1) recorded on the application (Exh.PA) submitted by Liaqat Ali son of Feroze Din Caste Ansari, Donkey-cart plier resident of Muslim Park Town, Faisalabad is that on 26-3-2008 at about 12-30 p.m. he had gone to his job. His daughter Mst. Naila aged about 13/14 years had gone in the street to fetch the earth. In the meanwhile, the appellant and one Sarfraz (since acquitted) armed with fire arms arrived there. The appellant told the complainant's daughter to accompany him quietly otherwise, nothing would be good for her. Both of them took his daughter in a vacant house, where the appellant committed Zina with her, whereas Sarfraz remained at guard. On hue and cry of his daughter Muhammad Saeed and Anwar-ul-Haq P.Ws. arrived there and witnessed the occurrence. Sarfraz fled away on seeing the witnesses. His daughter and witnesses informed him about the events, which had taken place. The relatives of the accused had been making requests to him not to approach the police and also extended threats of dire consequences, in case the request was not acceded to so he could not make the report in time. After investigation both the accused were sent up to face the trial. They pleaded not guilty and claimed trial.
3. The prosecution has produced eight witnesses in addition to documentary evidence to prove its allegation against the accused persons.
4. The appellant in his statement under section 342, Cr.P.C. denied the correctness of allegations by contending that the same are false and fabricated. It was contended that the victim is habitual of such acts and the case has been got registered by the complainant only to extort money. After conclusion of the trial the learned trial Court proceeded on to convict and sentence the accused as mentioned above.
5. The learned counsel for the appellant has contended that the learned trial Court failed to appreciate the evidenced in its true perspective; that solitary and uncorroborated statement of Mst. Naila (P.W.7) was not sufficient to prove the allegation of commission of illicit intercourse against the appellant as it is established on the record that she is a person of doubtful character, who has the habit of involvement in sexual activities; that the victim who was about 15/16 years old at the time of her statement even could not tell the year of the occurrence or the period, which had elapsed between the alleged occurrence and her statement; that she has categorically stated that she was making statement on asking of her father so her statement must be scrutinized with great care; that the sole independent witness Anwar-ul-Haq P.W.6 has not supported the prosecution version and the second witness cited in the F.I.R. was given up as he was also not ready to support the prosecution version; that in affidavit Exh.D/1 the complainant had categorically stated that the culprits had muffled their faces and that he had nominated Sarfraz co-accused since acquitted due to suspicion and as such the whole prosecution version becomes doubtful.
6. The learned DPG has vehemently controverted the above contention. It is contended that the statement of Mst. Naila coupled with medical evidence was sufficient to prove the prosecution version and non-appearance of other witnesses is therefore, insignificant. In support of the contentions raised reliance is placed on 2011 SCMR 1665.
7. The alleged occurrence took place on 26-3-2008 and according' to the complaint Mst. Naila was 13/14 years old at that time so at the time of her statement on 11-6-2009, she must be about 14/15 years old. According to the medical evidence, she was fully grown up person and was mature enough. She did not tell the year of occurrence and also did not narrate the period, which had elapsed between the occurrence and her statement. In the cross-examination she further stated that she was making the statement on asking of her father. Her father has submitted an affidavit to the effect that the accused persons had muffled their faces at the time of occurrence. It is true that the such offences are committed in loneliness so the absence of the eye-witnesses is not material and statement of the victim corroborated by the medical evidence is sufficient to prove the charge but if the statement of the victim does not inspire confidence or her own character appears to be doubtful, then her solitary statement cannot be deemed to be sufficient to prove the allegation of commission of rape punishable under section 376, P.P.C. Dr. Munazza Khurshid P.W.2 has categorically stated that hymen of the victim was torn, tears were old and healed all around orifice at 1.00 O'clock and 8.00 O'clock and that the vagina admitted two fingers. It was further stated by her that she was not so habitual but was subjected to sexual intercourse on many times. It is not alleged that prior to this occurrence, the appellant had committed the mischief earlier also. It is thus obvious that she is person of dubious character. Her solitary statement was not sufficient to prove the allegation of commission of illicit intercourse with her. Moreover, the alleged occurrence had taken place at about 12:30 Noon. The Street No. 4 Muslim Park Chak No. 225/RB is a thickly populated area. The site plan Exh.PC shows that there are houses on both sides in the street. In the broad day-light, the removal of a young girl per force does not appear to be possible. The complainant has also admitted in the cross-examination that he had received a sum of Rs.10,000 from the other accused person. This shows that the contention of the accused as raised in the statement under section 342, Cr.P.C. that the case was got registered in order to extort money is not without weight. For the reasons supra, a reasonable doubt Sexists as to correctness of the prosecution allegations against the appellant. The learned trial Court did not appreciate the evidence in its true perspective and has failed to take notice of the infirmities in the prosecution evidence as pointed out in the foregoing paras. The impugned judgment, therefore, is not sustainable. The appeal is accepted. Resultantly, the conviction recorded and sentence awarded to the appellant are hereby set aside. He is in the Jail and be released forthwith, if not required to be detained in any other case.
MWA/G-23/L????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.

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