MAQSOOD ALI Versus State
MALIK SHAHZAD AHMAD KHAN, J.--- Maqsood Ali petitioner was tried by the learned Additional Sessions Judge-III, Mardan, pursuant to case FIR No.579/2012, dated 12.10.2012, under sections 365-B/376 P.P.C., registered at Police Station Par Hoti, District Mardan. The learned Trial Court vide its judgment dated 17.03.2016, convicted and sentenced the petitioner as under:-
➤ under Section 365-B P.P.C. to imprisonment for life with fine of Rs.1,00,000/- and in default whereof to further undergo six (06) months simple imprisonment.
➤ under section 376 P.P.C. to fifteen (15) years rigorous imprisonment with fine of Rs.50,000/- and in default whereof to further undergo six (06) months simple imprisonment.
Benefit of section 382-B Cr.P.C, was also extended to the petitioner and both the sentences of imprisonment awarded to the petitioner were ordered to run concurrently.
In appeal, the learned High Court maintained the convictions and sentences awarded to the petitioner by the learned trial Court vide impugned judgment dated 09.10.2019.
2. Arguments heard. Record perused.
3. As per contents of the FIR, on 24.09.2012, between 9.00 am to 9.30 a.m, the daughter of the complainant namely Mst. Rabia (PW-3). aged about 15/16 years went out of her house in order to go to her paternal uncle namely Fazal Karim but she did not return to her house. The complainant reported the matter to the police through mad No. 30, on 05.10.2012 and finally he lodged the FIR, on 12.10.2012, against the unknown accused with the allegation that his daughter had either been abducted by some unknown accused on the pretext of contracting marriage with her or his daughter had gone with her paramour with her free consent. On the same day, when the FIR was lodged i.e.. 12.10.2012, the daughter of the complainant namely Mst. Rabia (PW-3), was recovered by the police when she was statedly travelling along with Maqsood Ali (petitioner), in a flying coach. The said Mst. Rabia (PW-3), implicated the petitioner in this case with the allegation of her abduction and rape. The statement under section 164 Cr.P.C., of Mst. Rabia (PW-3), was recorded by the concerned Magistrate on 13.10.2016.
4. As mentioned earlier, FIR was lodged against the unknown accused and the petitioner was not named therein. Moreover, the FIR was lodged with the delay of about eighteen (18) days from the alleged occurrence. Although in such like cases, mere delay in reporting the matter to the police is not always fatal to the prosecution case but keeping in view the other factors of a particular case, the same may be relevant. This Court has to determine that as to whether the charges of forcible abduction and rape punishable under sections 365-B and 376 P.P.C., have been proved or not in this case by the prosecution against the petitioner beyond the shadow of any doubt. In this respect, we have noted that Mst. Rabia alleged abductee/victim while appearing in the witness box before the learned trial Court as PW-3, has categorically stated that she was in contact with the petitioner through cell phone prior to the occurrence. She further stated that on the day of occurrence, she received a phone call from the petitioner, whereupon she went out of her house and thereafter the petitioner took her to a vacant house where he committed sexual intercourse with her. She had not stated that the petitioner was carrying any weapon at the time of her alleged abduction. Even otherwise, she had herself stated in her examination-in-chief, as well as, in cross-examination that she was in contact with the petitioner through a cell phone since the last 4/5 months prior to the present occurrence. She also stated that at times, the petitioner also called her on the cell phone of her brother. Though the alleged victim made an excuse that she was threatened by the petitioner but she admitted that she did not inform her brother or anybody else regarding the above-mentioned alleged threats. She further claimed that she was abducted by the petitioner through a motorcar but no motorcar has been recovered from the possession of the petitioner during the investigation of this case. As mentioned earlier, the alleged victim was statedly recovered while travelling in a flying coach and she was recovered after eighteen (18) days from the occurrence. Admittedly she never raised any hue and cry when she was statedly roaming around with the petitioner from one place to another. Mst. Rabia (PW-3), stated at one place that after her abduction when she regained her senses, she found herself in a vacant house but on another place, she has admitted that she was not intoxicated by the petitioner. Moreover, no material, which can cause intoxication was recovered from the possession of the petitioner. The statement of the alleged victim is highly self-contradictory and unreliable.
5. It is true that the medical officer namely Dr. Farah Sani (PW-4), had stated that the vagina of the alleged victim namely Mst. Rabia (PW-3), admitted two (02) fingers and as per FSL report, the vaginal swabs of Mst. Rabia (PW-3), were found to be stained with semens but no DNA test of the said semens was conducted in this case. Furthermore, there is nothing in the statement of the Medical Officer to show that the alleged victim namely Mst. Rabia (PW-3), was recently subjected to intercourse. She has not stated that there was any sign of fresh rupture of hymen of the alleged victim namely Mst. Rabia (PW-3). She has further stated that no mark of violence was noted on the entire body of Mst. Rabia (PW-3). No CDR of mobile phone of the petitioner and the alleged victim Mst. Rabia (PW-3) or her brother, was brought on the record. Likewise, no proof regarding the ownership of any mobile phone SIM in the name of the petitioner or in the name of Mst. Rabia (PW-3), was brought on the record to corroborate the claim of Mst. Rabia (PW-3) that she was in contact with the petitioner since last 4/5 months prior to the present occurrence. It is further noteworthy that the complainant has himself mentioned in the contents of the FIR that either his daughter Mst. Rabia (PW-3), had been abducted by some unknown accused on the pretext of marriage or Mst. Rabia (PW-3), had left her house with her paramour with her own free consent.
6. Keeping in view all the abovementioned facts, we have come to this irresistible conclusion that the prosecution has failed to prove the charges of forcible abduction and rape against the petitioner beyond the shadow of doubt. Even the charge of zina with consent punishable under section 496-B P.P.C., could not be established in this case on account of absence of DNA test report, call data record of the phone of the petitioner and alleged victim. Moreover, the statement of alleged victim namely Mst. Rabia (PW-3), who is the star witness of this case has been found to be unreliable and doubtful, therefore, it is not safe to pass conviction under section 496-B P.P.C., solely on the basis of said statement. Consequently, this petition is converted into an appeal and allowed. The judgments of the High Court dated 09.10.2019 and the Trial Court dated 17.03.2016, are hereby, set-aside. The petitioner is acquitted of all the charges while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case.
JK/M-120/SC Appeal allowed.