ABBAS Versus State
SHAHID HAMEED DAR, J.--- This criminal appeal arises from the judgment dated 30.3.2017, whereby learned Additional Sessions Judge, Chiniot convicted Abbas (appellant) under section 354, P.P.C. and sentenced him to rigorous imprisonment for ten months with fine of Rs.15,000/- or in default, to undergo simple imprisonment for one month, with benefit of section 382-B, Cr.P.C., on conclusion of his trial in case-FIR No.463/16, dated 15.9.2016, under section 376/511, P.P.C., Police Station Bhowana (Chiniot).
2. Precisely, the prosecution story as narrated by Rehmat Ullah (P.W.2/complainant) in his written application (Exh.PA) is that his daughter Salma Bibi (P.W.1) went to the motor (tubewell) of Abbas (appellant) at 1.00 p.m. on 31.8.2016 to wash clothes, where many a women were already present for the same purpose; when his daughter was left alone, the appellant threw her pile of clothes in the water; she ran to collect them and thereby reached near the sugarcane field; the appellant followed her to that place, clutched and dragged her inside the sugarcane crop; his daughter beseeched him, but he put her on the ground and mounted on her; he put off his Shalwar and attempted to remove that of his daughter, so as to commit rape on her; his daughter raised alarm, which attracted Abid PW (not produced) and Muhammad Waris (P.W.3) to the spot, as they passed nearby; the accused saw the witnesses and ran away; the witnessed brought his daughter to the house, where she unfolded tale of her helplessness. He reported the crime through his written application (Exh.PA) to Muhammad Waseem Aslam SI/SHO (P.W.5) at Adda Jamia Abad, at 8.15 p.m. on 15.9.2016, who despatched it to the police station through Haq Nawaz 143/C for registration of case, on receipt of which Tallat Abbas 312/MHC (P.W.4) drafted formal FIR (Exh.PA/1), at 8.40 p.m., the same day.
3. On completion of investigation, report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the accused/appellant, who pleaded not guilty and claimed a trial, when indicted. The prosecution produced five witnesses, namely, Salma Bibi (P.W.1), Rehmat Ullah (complainant/P.W.2), Waris (P.W.3), Tallat Abbas 312/MHC (P.W.4) and Muhammad Waseem Aslam SI/SHO (P.W.5) to prove the charge framed. Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. While answering the question, why this case against him and why the PWs deposed against him, he stated as under:-
"All the private PWs are closely related inter se, actually Rehmat Ullah complainant was my servant and later on I expelled him from job and Rs.3,00,000/- was debited towards complainant Rehmat Ullah, when I demanded back said money, they became angry with me. In the days of alleged occurrence, complainant party was settled with one Mst. Irshad sister-in-law of one Aslam Jappa, who is my opponent and on asking and in connivance of them, they falsely involved me in this false case. Alleged victim Mst. Salma is like my daughter and I never think about this nefarious act."
He opted not to appear under section 340(2), Cr.P.C. nor did he adduce any evidence in defence.
Learned trial court held him guilty of the charge and sentenced him in the mentioned terms through the impugned judgment.
4. Learned counsel for the appellant has submitted that the learned trial court although disbelieved testimonies of Rehmat Ullah (complainant/P.W.2) and that of Waris (P.W.3) in categorical terms, yet, it believed Salma Bibi (P.W.1) without any reasonable cause to convict the appellant; the statement of the alleged victim (P.W.1) is not supported by any independent circumstance and it has been given undue importance by the learned trial court to pass the impugned judgment, which is nothing but based on whimsical thoughts; a case of no evidence has been made into one of conviction in a mindless manner through the impugned judgment, which may be set aside and the appellant may be acquitted of the charge.
5. On the contrary learned Deputy Prosecutor General Punjab has defended the impugned judgment by contending that Salma Bibi (P.W.1) is star witness of the prosecution case, hence, her solitary statement was sufficient to base conviction on against the appellant, whose guilt has sufficiently been proved by the prosecution at trial.
6. After hearing the learned counsel for the parties and perusing the record, it is observed that the FIR-story, as narrated by the alleged victim's father, Rehmat Ullah (P.W.2) looked a bit preposterous and hard to believe, as nothing existed on the record that may be read in fortification thereof. The alleged occurrence took place on 31.8.2016, but he reported the crime on 15.9.2016, a fortnight thereafter, without offering any plausible explanation, except that the accused forced him to compound the offence, beside extending threats of dire consequences to him. This explanation, as mentioned in the FIR, did not figure anywhere in his testimony. He did not witness the occurrence and mentioned in the FIR that Abid P.W (not produced) and Waris (P.W.3) rescued and brought his daughter back to the house, where she narrated about the occurrence in presence of all of them. He did not, however, state it so during his examination and completely omitted to mention, if Waris (P.W.3) and Abid PW (not produced) had witnessed the occurrence or saved his daughter from the accused. About the time, that he took in lodging the FIR, he showed complete silence while tendering evidence and did not utter a word in this regard. The delay in lodgment of FIR has gone unexplained, which may not be a healthy sign for the prosecution case. It is generally said that in such like cases, which involved anyone's family name or honour, people are usually slow in making it to the police for reporting the crime, but in a case, where some reasoning as to delay-caused, has been given in the FIR and abandoned while tendering evidence, would be looked at inquisitively and such unexplained delay may reflect on the veracity of contents of FIR. It has been so held on countless occasions by the apex court as well as by this court that in promptly lodged cases, element of deliberations or concoction is reasonably excluded. The quicker the registration of FIR, the greater would be the chances of its being true. Fifteen (15) days consumed in lodgment of FIR (Exh.PA/1) by the complainant (P.W.2) has substantially reduced its creditworthiness.
7. Insofar as the ocular account as tendered by Salma Bibi (P.W.1) and Waris (P.W.3) is concerned, learned trial court itself looked a bit slow in believing it, having rejected and disbelieved the testimony of Waris (P.W.3) vide paragraph 18 of the impugned judgment, but it considered the evidence of Salma Bibi (P.W.1) pivotally significant to condemn the appellant by merely believing it to be a case of molestation of chastity of Salma Bibi, instead of treating it to be an attempt to commit rape on her under section 376/511, P.P.C. The complainant, who is real father of the alleged victim, is not an eye-witness of the occurrence. He cleverly concealed his close relationship with the other PWs, Waris and Abid in the FIR, but Salma Bibi unfurled this concealment by mentioning that Waris (P.W.3) was her maternal grandfather and Abid PW, her real Khalu, who was a resident of Nalka Adda, a place, which was fifteen (15) kilometers away from the place of occurrence. Learned trial court did not look satisfied about presence of Waris (P.W.3) at the place of occurrence at the crucial hour and it observed that his evidence had been manoeuvred by the prosecution to prove his presence as an eye-witness of the occurrence. The complainant having self-demolished the text of his written application (Exh.PA), that he submitted for lodgment of FIR, did little good to the prosecution case. Salma Bibi (P.W.1) accused Abbas (appellant) of dragging her to the sugarcane field and breaking string of her Shalwar, beside removing that of his own and in the struggle to save herself from being molested, found her clothes having been torn, but she did not offer herself for medical examination, nor did she produce her torn clothes or broken waist-band before the investigating officer. She also failed to produce the pile of untidy clothes, that she had taken to the tubewell/motor of the accused for washing them. She deposed about a queer circumstance, that untidy clothes allegedly thrown by the accused in water, kept afloat for four kanals from the tubewell till they reached the sugarcane crop, where she was overpowered and dragged by him inside the field. Who can show unawares, as to how uneven a sugarcane field may be and how thickly grown would it be. If she had been dragged by the accused through ridges of field and stout jointed sterns of sugarcane, grown therein, her clothes must have been torn and her body badly bruised/wounded, but she did not have herself medically examined, which evasiveness would be detrimental to her contentions. Her father once remained a servant of Abbas (appellant) as admitted by her in evidence, but she denied it as incorrect that her father had registered a false case against the accused to avoid repaying the advance amount of Rs.3,00,000/-, that he had allegedly received from him sometimes before. This denial on her part may not altogether be false, but it did not necessarily mean that she had spoken the truth. Her statement has gone uncorroborated by any unflinching circumstance. Astonishingly, she claimed that the police visited place of occurrence, the same day, and that she along with her father went to police station at about 4.00 p.m. with a written application, again the same day. Her father, however, did not believe it as such, nor did he say anything at all in this context. He looked increasingly inclined to establish that he presented his written application (Exh.PA) for registration of case against the accused/appellant on 15.9.2016.
8 The alleged victim could not tender a single worthwhile deposition, which might incriminate the accused in terms of the allegation, brought forth against him by her and other prosecution witnesses. The testimony of the alleged victim is as bereft of creditworthiness as that of the rejected PW, Waris. The ocular account in its present form is devoid of credence, hence, brushed aside.
9. There is hardly left any other piece of evidence worth discussing which may inject some life into the prosecution case. It was virtually a case of false evidence, but learned trial court stretched the prosecution evidence too far and derived such conclusions, which are incompatible therewith. How can it be denied that the impugned judgment has been passed gratuitously and it suffered from non-reading and misreading of evidence. The appellant was somewhat unlucky to have been held guilty and sentenced by the learned trial court in a case, which ought to have ended in his acquittal. It is not, however, too late to make the mends. A fallible judgment must fall and so is the fate of the impugned judgment which is hereby set aside, resultantly, the appellant is acquitted of the charge. He is present on bail, for, his sentence had been suspended by this court on 14.4.2017. His bail bonds are cancelled and surety discharged. This appeal stands allowed.
JK/A-95/L Appeal allowed.