Mst. SHAMIM and 2 others vs THE STATE and another

' QAZI MUHAMMAD FAROOQ, J.---The appellants herein were tried by the learned Additional Sessions Judge, Pakpattan Sharif for offences under sections 16 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. They were found guilty and while all of them were convicted under section 16 and sentenced to seven years' R.I. And a fine of Rs,5,000 each or six months' R.I. In default thereof and whipping numbering 20 stripes each, the appellants Nazar Muhammad and Muhammad Yousaf were further convicted under section 10(3) and sentenced to 25 years' R.I. And whipping numbering 30 stripes each. The sentences of imprisonment were ordered to run concurrently. The appeal preferred by the (sic) 21-10-1998 with the modification that their conviction and sentence under section 16 and sentence of whipping were set aside, the sentence under section 10(3) awarded to Nazar Muhammad and Muhammad Yousaf was reduced to 10 years' R.I. Each and appellant Mst. Shamim was convicted under section 10(3) read with section 109, P.P.C. And sentenced to 10 years' R.I. Benefit of section 382-B, Cr.P.C. Was also extended.

2. Leave was granted to consider whether the evidence on record was sufficient for conviction.

3. The occurrence had allegedly taken place on 27-12-1991 at about 10-00 a.m. The F.I.R. Was lodged by Mst. Halima Bibi at Police Station Saddar, Pakpattan, located at a distance of about 10 kilometres from the spot of occurrence, on 2-1-1992 at 5-30 p.m. But it was cancelled having been found false by successive Investigating Officers. The complainant reconciled with the fate the F.I.R. But after about seven months set the ball rolling again by filing a private complaint.

4. The prosecution case, as spelt out by the private complaint, in substance is that the complainant was a married woman having a daughter. On the eventful day the appellant Mst. Shamim alias Sheema came to the house of the complainant and asked her to accompany her to the fields for plucking cotton. The complainant agreed and when they reached near an abandoned Kotha, located in the fields of Amin Arain, Mst. Shamim deliberately lagged behind and turned towards the other side. The appellants Nazar Muhammad and Muhammad Yousaf, who were already present there, caught hold of the complainant and committed Zina-bil-Jabr with her. The complainant raised an alarm which attracted Nizam Din, Peer Bakhsh, Hanif and Muhammad Yaseen and on seeing them both the culprits ran away alongwith Mst. Shamim who was sitting on the other side of the Kotha.

5. At the trial, the case set up by the prosecution rested on the statement of the complainant, eye- witness account furnished by Muhammad Hanif and Nizam Din, testimony of Dr. Kaneez Fatima and positive report of the Chemical Examiner. Implicit reliance was placed on these pieces of evidence by the learned trial Court as well as the Federal Shariat Court.

6. We have heard the learned counsel for the appellants and the learned counsel appearing for the State who reiterated the contentions raised before the Federal Shariat Court, namely, that the opinion of the Investigation Officers was not binding on the Court and the ocular evidence was not only reliable but was also corroborated by the medical evidence and positive report of the Chemical Examiner.

7. The first contention raised by the learned counsel for the appellants was that the prosecution story was improbable because the appellant, Mst. Shamim was the wife of the appellant Nazar Muhammad. The contention has substance. It is an admitted position that the appellant Mst.

Shamim is the wife of the appellant Nazar Muhammad. The statement of the complainant also makes it manifest that Mst. Shamim was not her friend, she had accompanied Mst. Shamim for the first time and had not enquired about the field from which cotton was to be plucked. The prosecution story is indeed improbable and irrational because it does not appeal to reason that the appellant Mst. Shamim had procured the complainant for her husband and the complainant had accompanied a stranger to pluck cotton from unknown fields. The prosecution story being the foundation on which edifice of the prosecution case is raised occupies a pivotal position in a criminal case. It should, therefore, stand to reason and must be natural, convincing and free fram any inherent improbability. It is neither safe to believe a prosecution story which does not meet these requirements nor a prosecution case based on an improbable prosecution story can sustain conviction.

8. The next point urged by the learned counsel was that there was delay of five days in lodging the F.I.R. And seven months in making the private complaint after cancellation of the F.I.R. The question of delay in making the F.I.R. Has lost significance on account of its cancellation. Be that as it may, unexplained delay in setting the machinery of law in motion prima facie points to fabrication of the prosecution story, therefore, we would like to observe that if the complainant hibernates after cancellation of the F.I.R. And makes a delayed private complaint the prosecution evidence must be sifted and weighed with great care and caution.

9. The remaining contentions raised by the learned counsel were to the effect that the appellants were declared innocent by several Investigating Officers and for that very reason the F.I.R. Was cancelled, the ocular evidence had not been furnished by natural witnesses and the medical evidence was meaningless as the complainant was a married woman and was medically examined after six days of ' the alleged occurrence. Opinion of a police officer being an opinion simpliciter can neither bind the Court nor can serve as a springboard for acquittal of an accused.

However, there is force in the criticism levelled against the testimony of the complainant and the eye-witnesses. The testimony of the complainant has been rendered unreliable by , the unrealistic and improbable nature of the prosecution story. Besides, her testimony is inconsistent with the ocular evidence furnished by Muhammad Hanif (P.W.2) and Nizam Din (P.W.3). The inconsistency which stands out like a porcupine quill is that it is in her statement that she had become unconscious as a result of Zina-bil-Jabr whereas both the said eyewitnesses have stated that when they reached the spot the appellant Yousaf was committing Zina-bil-Jabr with the complainant and on seeing them the culprits ran away and they escorted the complainant to her house after giving her a Chaddar. None of them has stated that she had lost consciousness.

Another intriguing circumstance which reflects on her testimony is that she remained unscathed in spite of the fact that two rustics had subjected her to Zin-bil-Jabr in a cotton field. The ocular evidence is also not confidence-inspiring because both the eyewitnesses are not natural and probable witnesses and their presence on the spot is highly doubtful. They have not explained their presence on the spot satisfactorily. The name of Muhammad Hanif (P.W.2) did not figure in the F.I.R.

And was added in the complaint. He is undoubtedly a trumped-up witness. Moreover, both of them are closely related to the complainant and their testimony has not been corroborated by any independent evidence coming from an unimpeachable source.

10. Adverting to the medical evidence, which has been treated as a confirmatory piece of evidence, we find that it does not support the testimony of the complainant inasmuch as Dr. Kaneez Fatima (P.W.5) who had examined her neither found any mark of violence or injury on her body nor has opined that she was subjected to rape. This circumstance has also been overlooked that the complainant is a married woman and was medically examined after six days of the occurrence.

For the same reason the positive report of the Chemical Examiner is not better than the medico- legal report of the complainant.

11. The prosecution has singularly failed to prove its case against the appellants beyond any reasonable doubt, therefore, they are entitled to the benefit of doubt.

12. Hereinabove, are the reasons for acceptance of the appeal through the short order, dated 17-4- 2003 which reads as under:-- ' "For reasons to be recorded later, this appeal is allowed, the conviction and sentences of the appellants are set aside and they are acquitted of the charge levelled against them. The appellants Nazar Muhammad and Muhammad Yousaf alias Dhaula are confined in Jail. They be released forthwith if not required in any other case. The appellant Mst. Shamim is on bail. Her bail bond stands cancelled."