MUSHTAQ AHMAD Versus THE STATE M. Sultan Wattoo , S. Abdul Hameed

1. The facts giving rise to this petition briefly are that a case under section 354, P.P.C. was registered against Mushtaq Ahmad petitioner at Police Station Mcleod Ganj on 28‑11‑1986 on the report of Mst. Irshad Bibi. It was stated in the F.I.R. that:‑

2. While explaining the delay, it was stated in the F.I.R. that:‑

3. The petitioner denied the charge and claimed to be tried. To prove its case, prosecution produced 4 witnesses in all. Mst. Irshad Bibi appeared as P.W.2. She stated:‑

4. While explaining the delay, she stated:‑

5. Ahmad Yar P.W.3 stated:‑

6. Ilam Din P.W.4 stated:‑

7. The rest of the evidence‑ is of formal nature. When examined under section 342, Cr.P.C. the petitioner denied all the incriminating circumstances. In defence he produced two witnesses. The trial Court convicted the petitioner under section 354, P.P.C. and sentenced him to nine months' R.I. The appeal filed by him against this order failed on 10‑4‑1988, hence this revision.

2. Learned counsel for the petitioner submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as there is unexplained delay of about 12 days in lodging the F.I.R. and that the prosecution evidence suffers from material contradictions and discrepancies. Learned counsel for the State has supported the judgment of the trial Court.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that although it has been stated in the F.I.R. that:‑ but it has not been stated so by Mst. Irshad Bibi at the time of her evidence before the Court. In the Court she explained the delay of two days in lodging the F.I.R. Since the F.I.R. is not a substantive piece of evidence, therefore, it cannot be said that the delay of 14 days in lodging the F.I.R. has satisfactorily been explained by the prosecution. Furthermore, the ocular testimony suffers from infirmities such as material contradictions and major discrepancies. The two eye‑witnesses claimed to have seen the petitioner forcibly taking Mst. Irshad Bibi towards the bushes but it was not the case of Mst. Irshad Bibi at the time of lodging the F.I.R.

8. It is very easy to concoct case of criminal assault with intent to outrage the modesty of a girl and very difficult to rebut the same. So strong and cogent evidence would be required to prove an offence punishable under section 354, P.P.C. which I do not see in the case in hand.

9. For what has been said above, while giving benefit of doubt to the petitioner, his conviction and sentence is set aside. He shall be released forthwith, if not required to be detained in any other case.

10. S.A./M‑823/L ????????????????????????????????????????????????????????????????????????????????????? Acquittal ordered