MUSHTAQ AHMAD Versus State
DR. FIDA MUHAMMAD KHAN, J.- --Mushtaq Ahmed appellant/complainant has preferred this appeal against the judgment dated 09.02.2007 passed by the learned Addl: Sessions Judge, Taunsa Sharif whereby he has acquitted the accused/respondent Ubaid Ullah of the charges framed under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377 of P.P.C.
2. Briefly stated facts of the case as narrated in FIR, recorded on the statement of appellant/complainant Mushtaq Ahmed (PW.1), are to the effect that on 02.04.2006 at about 06:00 p.m. he was present in his house when Ghulam Shabbir came to see him. They both went to the Dera of his father in law. When they reached near the baithak, they heard crying of a child. After proceeding over there, they saw that Ubaid Ullah accused was committing carnal intercourse with his son Ashiq Hussain. On seeing the PWs, the accused fled away. The relatives of the accused came to him for compromise but he did not agree and on the next day he along with Asghar, Sardar and Azam Khan Malghani went to police station and made, statement (Exh.P.A) which was recorded by Khadim Hussain S.I.
3. After registration of the case, necessary investigation was conducted by Khadim Hussain SI. After completion of the same, challan was transmitted to the court against the accused/respondent Ubaid Ullah for his trial. The learned trial court, after fulfilling all the legal and codal formalities, charged the accused/ respondent under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as under section 377 of P.P.C. The accused/ respondent did not plead guilty and claimed trial.
4. At the trial, the prosecution examined eight witnesses. Mushtaq Ahmed complainant of this case appeared as PW-1 and reiterated his statement as mentioned in the FIR. Ghulam Shabbir appeared as PW-2. He is an alleged eye-witness of the occurrence who supported the statement of the complainant. Muhammad Hassan ASI, appeared as PW-3 and deposed that he registered formal FIR (Exh.PA/1). Dr. Sher Muhammad SMO, THQ Hospital Taunsa appeared as PW-4. On 15.4.2006, he medically examined the victim Ashiq Hussain and observed as under:-
"GENERAL PHYSICAL EXAMI- NATION:
Child was healthy and normal muscular built. No marks of violence seen on his body.
LOCAL EXAMINATION:
"No marks of violence or injury seen on the pari-anal and anal region. However three swabs pari-anal, anal and rectal taken and sealed in a bottle.
Three suspected pieces of shalwar and shirt brought by father of child at the time of examination also sealed in another bottle. Both sealed bottles were sent to Chemical Examiner Punjab Multan for detection of semen if any and final opinion will be given on receipt of report of Chemical Examiner, Multan. Ex.PC is the-correct carbon copy of his original report No. 88/06 dated 15.4.2006 which is in my hand and bears my signatures. It was handed over to the police with two sealed bottles.
I have endorsed the police docket Ex.PC/1. I have seen the report of Chemical Examiner Punjab Multan No. S.429/CE dated 29.4.2006 Ex.PC/2 in which it is reported that the above articles were NOT stained with semen.
According to my opinion as reported by Chemical Examiner, and as written by me that there was NO injury on pari-anal, anal and rectal area. Penetration was NOT done."
Muhammad Nawaz, SI appeared as PW-5 and stated that he produced Ashiq Hussain victim before the M.O. He handed over the parcel to Muharrir and recorded the statements of PWs under section 161, Cr.P.C. Khadim Hussain, SI/I.O. appeared as PW-6. Dr. Abdul Rasheed, M.O. THQ, Hospital Taunsa appeared as PW-7. He medically examined the respondent/accused Ubaid Ullah and found him fit to perform sexual intercourse. Ashiq Hussain DSP (Inv), D.G. Khan appeared as P.W. 8 and deposed that on 27.5.2006 he recorded the supplementary statements of Mushtaq Ahmed, Ghulam Shabbir and Ashiq Hussain victim. He also verified the investigation of Ghulam Muhammad, DSP and Khadim Hussain, SI.
5. The accused/respondent made statement under section 342, Cr.P.C. wherein he denied the allegations and stated that he was falsely involved in this case by the complainant. While replying to a question "why this case is against you and why PWs deposed against you", the respondent/accused made statement in the following words:-
"PWs Mushtaq and Ghulam Shabbir son of Ghulam Rasool are brothers-in-law of the complainant and there is civil litigation between mamun and behnoi of complainant with my father and they pressurized my father for compromise at their own or to grab our land, but my father did not agree. This case is false and no such occurrence took place. The complainant intentionally involved me in this case in collusion with the local police. The owner of the chhaper namely Muhammad Yousaf and Zafar have also filed affidavit that no such occurrence took place under their chhaper and the case is false. On the day of occurrence, the victim fallen the bicycle of Ubaid Ullah accused at morning time which was standing near the house of Yousaf and its pedal was broken. I slapped the victim. Due to this reason I was involved in this case which is false and baseless. My age is 13 years 2 months when the FIR was lodged against me. Moreover the report of Chemical examiner is not supporting the prosecution version. The PWs are related inter-se".
The respondent/accused though did not himself make statement on oath under section 340(2), Cr.P.C., he produced two DWs namely Malik Nazir Ahmad, Inspector special branch and Manzoor Ahmed in his defence.
6. On conclusion of the trial, the learned trial Court acquitted the respondent/accused as mentioned hereinabove.
7. We have heard learned counsel for the appellant as well as the learned counsel for respondent/accused and learned counsel for the State.
8. Learned counsel for the appellant submitted that the learned trial court has erred in acquittal of the respondent on the basis of statement made by DW.1 Malik Nazir Ahmed, Inspector because that statement is entirely out of context and unreliable. The learned trial court has ignored the law set by the superior Courts where it has been held that opinion of police is not binding upon the Court and especially when the investigating officer himself becomes a party and more so when a complainant loses confidence in him, as is the position in the instant case wherein application by the complainant had been moved against DW.1. He added that DW.1 nourished bias against the complainant after he moved an application against him. Bias of DW.1 could be judged from the fact that he did not join the complainant party in investigation and neither recorded his statement nor that of the victim. The ocular account which in itself is unimpeachable should have been given due consideration. The instant occurrence took place in broad-daylight and there was absolutely no suspicion about the identification of the accused/ respondent. He argued that the complainant belonged to a tribal area where nobody ever likes to bring such a stigma to the family at any cost. He vehemently contended that no enmity exists between the complainant and the accused and therefore, any chance for false implication is absolutely ruled out.
9. Learned counsel for the respondent vehemently contended that the statements of the PWs are not consistent and find no corroboration. The parties are still busy in litigations and there was every possibility of false implication of the accused/respondent who was 12/13 years of age at the time of occurrence. The medical report as well as report of chemical examiner do not support the case of prosecution. The Shalwar etc. were also not taken into possession. He further submitted that it is really strange to note that both the PWs never tried to apprehend the respondent/accused inspite of the fact that the unarmed respondent/ accused was minor and could have been easily overpowered by the PWs if they were actually present over there. He added that in the instant case the respondent/accused has been acquitted and as such he has earned double presumption of innocence. The learned counsel placed reliance on 2019 PCr.LJ 420, 2019 YLR 593 and 2016 SCMR 267.
10. Learned counsel for the State supported the impugned judgment of acquittal.
11. We have gone through the evidence on record in the light of submissions made by learned counsel for the parties and have also gone through the impugned judgment.
12. It transpires that the occurrence took place on 02.4.2006 at Degar Wela and report in respect of the same was made to the police on the next day at about 03:30 P.M. The victim Ashiq Hussain being minor was given up. However, he was medically examined. The complainant Mushtaq Ahmed appeared as PW.1. Ghulam Shabbir, PW.2 supported his statement. For various reasons, however, their statements do not inspire confidence. Thorough scrutiny of the depositions made by the PWs reveal that the complainant has made several improvement. In his initial statement he had stated that the accused was trying to commit carnal intercourse with his son which, on confrontation, was found to have been so recorded. He admitted that Yousaf and Muhammad Bakhsh were real brothers and that Muhammad Yousaf has appeared in defence of the accused and also submitted his affidavit wherein he has stated that he along with his son had remained present in that Baithak during whole day on the above date and no such occurrence ever took place. In addition to him, his son Zafar Hussain also appeared before the police and negated the occurrence. He has, admitted that none from the Basti had seen the respondent/ accused while taking away the victim inside the chapper. Though PW.2, Ghulam Shabbir supported, his version, he admitted that his relations with father and uncle of the accused were strained and they were not on talking terms with each other as there were civil litigations between them which were still pending for the last two years. He also admitted that his relations with the accused were also strained because of the civil suit. Though denied by him, he was suggested that he had falsely registered this case on asking of Ghulam Shabbir just to pressurize the accused side for compromise. He also admitted that the appeal filed by father of the accused against Muhammad Bakhsh and his brother in law Riaz was still pending. It is pertinent to point out that, as admitted by him, their disputes with father of the accused had started prior to the registration of this case. Although PW.2 supported his version, he also admitted that the complainant and his relatives had litigation with the accused party. It is also very unbelievably strange that admittedly the respondent/accused who was then about 13 years old and was physically weak also, was neither chased by the two PWs nor they raised any hue and cry to get hold of him. The complainant admitted that if they had tried they could have apprehended the accused.
13. DW.1, is Malik Nazir Ahmed, inspector special branch who initially investigated the case and DW.2 is Manzoor Ahmed. Both appeared in defence of the accused. Deposition of DW.2 altogether shatters the statement of PW.1 and PW.2. Moreover the statement of PW.1 and PW.2 find no corroboration from the medical evidence. PW.4 Dr. Sher Muhammad who examined the victim Ashiq Hussain did not observe any mark of violence on his body nor on the pari-anal and anal region. He took swabs and sent the same to the chemical examiner. Report of the chemical examiner (Ex.PC/2) reveals that the swabs were not stained with semen. On the basis of his observations as well as report of the chemical examiner, he opined that no penetration had taken place. Moreover, the site plan (Exh.PD) shows that the place of occurrence was an open place and situated on a thoroughfare street, with surrounding houses on the Northern side. The place was visible from there and the occurrence could have been seen by a number of persons who were residing in the nearby 40/45 houses. In rural areas especially, the people are very sensitive and in case of such but none appeared in the instant case. Even father in law of the complainant Muhammad Bakhsh did not appear in his support during investigation. On the contrary, a close relative appeared in defence and categorically denied that any such occurrence had ever taken place. We have gone through the impugned judgment also and have found neither any illegality nor misreading and non-reading of evidence that may call for any interference.
14. Consequently, for the reasons stated above, this appeal against acquittal is dismissed accordingly.
15. These are the reasons for our Short Order dated 11.04.2019.
SA/54/FSC Appeal dismissed.