PLJ 2010 Cr.C. (
Present: Manzoor Ahmad Malik, J.
RIZWAN alias ABU BAKAR--Appellant
versus
STATE--Respondent
Crl. Appeal No. 800 of 2009, heard
on 15.4.2010.
----Ss. 376/511--Criminal Procedure
Code, 1898, Sec. 161--Conviction & sentence recorded against appellant by
trial Court--Challenge to--Credibility of witness--Appeal against--Appreciation
of evidence--Benefit of doubt--Acquittal--Held: Statement of alleged victim was
recorded seven days after the occurrence and similarly statements of other
prosecution witnesses were also recorded by the police with delay and there is
no explanation of any sort for this inordinate delay--Admittedly the
complainant/PW was not present at home when the alleged occurrence took
place--Credibility of a witness is looked with serious suspicion if his or her
statement u/S. 161, Cr.P.C. is recorded with delay without offering any
plausible explanation--Appeal allowed. [P.
856] A & B
1998 SCMR 570, Rel.
Mr. Ahmad Nawaz Wattoo-I, Advocate
for Appellant.
Mr. Muhammad Jameel Hassan Pasha,
Advocate for Complainant.
Ch. Muhammad Zafar Khan, D.P.G. for
State.
Date of hearing: 15.4.2010.
Judgment
Rizwan alias Abu Bakar appellant
through this appeal has challenged his conviction and sentence recorded by the
learned Additional Sessions Judge Sheikhupura vide judgment dated 26.05.2009 in
case FIR No. 438/2008 dated 14.07.2008 offence under Sections 376/511 PPC
registered at Bhiki District Sheikhupura whereby the appellant was convicted
and sentenced as under:--
"Thus, I hold him guilty and
convict him with a punishment to undergo rigorous imprisonment for ten years
and with fine of Rs. 10,000/- in default whereof, he shall undergo six months
SI. He, however, shall be entitled to take the benefit under Section 382-B
Cr.P.C."
2.
Briefly, facts of the case as narrated by the complainant Noor Ahmad
(P.W.2) in FIR Ex.P.A/1, are that on 13.07.2008, when he and his wife were away
to get fodder for the cattle his daughter, Tanzeela Bibi (P.W.3), of the age of
13/14 years was alone at the home alongwith little child, when appellant
Abubakar scaled over the outer wall of the house, dragged his daughter Tanzeela
Bibi from Courtyard into the room of the house and attempted to commit
zina-bil-jabr with her by creating harassment and tearing her worn clothes. It
was alleged that the appellant while attempting to commit zina-bil-jabr,
inflicted blow with a Danda on the right arm upper side of the elbow and also
caused bite on the right hand of the victim using his teeth. On raising hue and
cry by the victim, Riasat (P.W.4) and Khalid Mehmood attracted to the spot. On
seeing them the appellant fled away. In the meanwhile the complainant and his
wife also reached at the spot.
3.
After registration of the case, Ghulam Abbas, Sub-Inspector, (PW.6) started investigation, visited the place of
occurrence, inspected the spot, prepared the site-plan of place of occurrence
without scale (Ex.PD). On 20.07.2008 victim Tanzeela Bibi produced her clothes
comprising shirt (P.1), shalwar P2 which were taken into possession vide
recovery memo. (Ex.PB). He also prepared injury statement of the victim
(Ex.PE). He also recorded the statements of PWs under Section 161, Code of
Criminal Procedure and after completing the formalities submitted report under
Section 173, Code of Criminal Procedure.
4.
Formal charge was framed against the appellant on 09.10.2008, to which
he pleaded not guilty and claimed trial. In order to prove its case prosecution
examined six witnesses in all.
5.
After conclusion of the trial, the statement of the appellant was
recorded under Section 342 Cr.P.C. However, the appellant neither made a
statement on oath as required under Section 340(2) Cr.P.C. nor produced any
defence evidence. In reply to a question as why this case against you, the
appellant stated as under:--
"This is totally a fabricated
and false case, concocted against me on the behest of Bilal Virk MNA, with whom
I have political rivalry, moreover, the complainant Noor Muhammad nourished
grudge against me due to demand of Rs.50,000/- loan which he obtained from my
mother and did not return back in accordance with the commitment. In fact,
there was an altercation of petty nature between the children of the family
which was given colour of this case involving moral turpitude. The PWs were
produced and the worn clothes were submitted after seven days abnormal period
of time, thereafter MLR was manipulated in order to strengthen the allegations
against me. No independent witness has come forward to give evidence against me
except the interested one."
The learned trial Court convicted
the appellant, as stated above; hence, this appeal.
6.
Learned counsel for the appellant, in support of this appeal, contends
that as per FIR occurrence in this case took place on 13.07.2008 and the FIR
was got registered at 14.07.2008 i.e. after 26 hours of the alleged occurrence,
therefore, the chances of consultation and deliberation cannot be ruled out;
that as per FIR son of the complainant namely Nawaz aged 7/8 years was present
in the house at the time of alleged occurrence and in his presence there could
not be any possibility of making an attempt to commit rape with the victim;
that allegation of inflicting danda blows to the victim does not appear to be plausible;
that as per FIR the occurrence was witnessed by Riasat Ali and Khalid Mehmood
whereas the alleged victim while appearing as P.W.3 stated that Muhammad Amin
son of Muhammad Tufail and Riasat Ali witnessed the occurrence and only Riasat
Ali appeared in the witness box as P.W.4; that said Raisat Ali is resident of
Tibba Jewanpura as per the address, given by him while making his statement
before the Court whereas the occurrence allegedly took place at Mohallah
Bambanwala, City Sheikhupura; that as per complainant he submitted the
application on 13.07.2008 and on the same day the Police visited the spot and
recorded statements of the victim as well as the PWs whereas as a matter of
fact as per statement of Investigating Officer (P.W.6) he recorded statement of
the victim and other PWs on 20.07.2008 and even the clothes of the victim were
taken into possession on 20.07.2008 and she was got medically examined on
21.07.2008 and there is no explanation for this inordinate delay and in such
circumstances story of the prosecution is highly improbable and no reliance can
be placed on the statement of the victim who as per her own statement got
recorded her statement after fourteen days of the occurrence whereas as per the
Investigating Officer her statement was recorded on 20.07.2008; that the victim
was medically examined on 21.07.2010 and according to the statement of the Lady
Doctor (P.W.6) probable time between injuries and medical examination is 10/15
days and if this duration is accepted as correct, then the date of occurrence
becomes doubtful, therefore, there are serious doubts in the prosecution story
and as such the appellant is entitled to acquittal.
7.
Learned counsel for the complainant, on the other hand opposes this
appeal on the grounds that the appellant is duly nominated in the FIR with a
specific role and the prosecution has produced confidence inspiring evidence
against the appellant; that the prosecution story was duly supported by the
statement of victim and finds corroboration by the medical evidence available
on the record; that delay in recording statements of the victim and the PWs is
not fatal to the case of prosecution as the prosecution has established guilt
of the appellant to the hilt through reliable ocular account, therefore, this appeal
is liable to be dismissed.
8.
Learned Deputy Prosecutor General while adopting the arguments of
learned counsel for the complainant also vehemently opposes this appeal.
9.
I have heard learned counsel for the appellant and the learned Deputy
Prosecutor General for the State and learned counsel for complainant and have
also gone through the record with their able assistance.
10.
In this case, as per FIR, the occurrence took
place on 13.07.2008 and the matter was reported to the Police on 14.07.2008.
Though there is a delay in reporting the matter to the Police but delay in such
like cases it is not much material as the complainant party
in order to protect their honour hesitate in reporting the case to the
Police. But there are other circumstances in this case which create dents in
the prosecution story. Mst. Tanzeela Bibi victim is the star witness of this
case but her statement under Section 161, Code of Criminal Procedure was
recorded on 20.07.2008. She was medically examined on 21.07.2008 and even her
clothes were also taken into possession on 21.07.2008. Though the allegations
against the appellant are heinous in nature but at the same time this Court is
conscious of the fact that conviction can only be maintained if the prosecution
has proved its case beyond any shadow of doubt. The fact that the statement of
the alleged victim was recorded seven days after the occurrence and similarly
statements of other prosecution witnesses namely Noor Ahmad, Riasat Ali and
Muhammad Amin were also recorded by the Police on 20.07.2008 and there is no
explanation of any sort for this inordinate delay. As far as statement of the
complainant (PW.2) is concerned, admittedly he was not present at home when the
alleged occurrence took place. The only explanation given by the Police Officer
(PW-6) was that the delay occurred as the complainant wanted to protect his
family honour. But this explanation is not plausible because of the simple
reason that family honour of the complainant party was at stake from the moment
when an application for setting the criminal law in motion was filed in the
Police Station. It is a settled law that credibility of a witness is looked
with serious suspicion if his or her statement under Section 161, Cr.P.C. is
recorded with delay without offering any plausible explanation. While holding
so I am guided by the dictum of law enshrined by the Hon'ble Supreme Court of
Pakistan in "Muhammad Khan versus Maula Bakhsh" (1998 SCMR 570)
wherein at page 575, it has been observed:--
"It is a settled law that
credibility of a witness is looked with serious suspicion if his statement
under Section 161, Cr.P.C. is recorded with delay without offering any
plausible explanation."
Even clothes of the victim were
taken into possession through recovery memo. on 20.07.2008 and she was
medically examined on 21.07.2008 (Ex-PC) Considering all these points, case of
the prosecution is not free from doubts and it was bounden duty of the
prosecution to prove its case beyond any shadow of doubts. The benefit of doubt
would go in favour of the appellant not as a grace but as a right, therefore,
this appeal is allowed. The conviction and sentence of appellant recorded by
the learned Additional Sessions Judge Sheikhupura vide judgment dated
26.05.2009 is set aside and he is acquitted of the charges levelled against
him. The appellant is in jail. He shall be released forthwith if not required
in any other case.
(M.S.A.) Appeal
allowed.