PLJ 2023 SC (Cr.C.) 275
Rape--Victim a married lady--old hymen ruptured--DNA report--Intoxicant
material--Testimony of victim-
PLJ 2023 SC (Cr.C.)
275
[Appellate Jurisdiction]
Present: Sayyed Mazahar Ali Akbar
Naqvi and Syed Hasan Azhar Rizvi, JJ.
ATTA-UL-MUSTAFA--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 596-L of 2022, decided on 11.8.2023.
(Against the judgment dated 24.02.2022 passed by the Lahore High Court, Lahore
in Cr. Appeal No. 75142/2019)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 376-II/337-J--Rape--Victim a married
lady--old hymen ruptured--DNA report--Intoxicant material--Benefit of
doubt--Acquittal of--Complainant/victim appeared as PW-5 and alleged the
petitioner and his co-accused to have committed rape with her--Victim was 49
years of age while petitioner was a young lady of 20 years old--Story told by
the victim is not plausible--According to her, petitioner’s mother and two
sisters gave her some intoxicating drink which made her unconscious and
petitioner and his friend committed rape--In our society, no matter how morally
bad one is, he cannot do such kind of act in front of his mother and
sisters--Victim was admittedly a married lady--Her hymen to be old
ruptured--Blood sample of victim was taken and sent to PFSA--According to
laboratory report “Alprazolam” was detected in her blood--Neither anything
containing intoxicating material was recovered nor any intoxicating material
was found in her blood--Victim had lodged a similar kind of case against
another person but same was ended in compromise--DNA report revealed that
possibility cannot be ruled out that the petitioners is the contributor of the
semen detected on the vaginal swabs of the victim--DNA report is not conclusive
and certain about the guilt of the petitioner--Co-accused was eliminated being
contributor of male DNA--Prosecution case was not free from doubt--there are
dents which are so grave and sensation--Convert this petition into appeal,
allow it and set aside the impugned judgment--The petitioner is acquitted of
the charge.
[Pp.
279 & 280] B, C, D, E, F, G & I
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Rape--Testimony of victim--Testimony of
a victim in case of sexual offences is vital and unless there are compelling
reasons which necessitate look in for corroboration of a statement.
[Pp.
278 & 279] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Rape--Medical evidence--Alprazolam is
used to treat anxiety and panic disorder--same is in a class of medications
called “benzodiazepines” and it works by decreasing abnormal excitement in the
brain--It seems the victim was a patient of depression.
[P.
279] D
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Rape--DNA--DNA report can not be
treated as primary evidence and can only be relied upon for the purpose of
corroboration. [P.
280] H
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Administration of justice--Mere
heinousness of the offence if not proved to the hilt is not a ground to punish
an accused.
[P.
280] J
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Benefit of doubt--It is better that 100
guilty persons should let off but one innocent person should not
suffer. [P.
280] K
Pakistan Penal Code, 1860
(XLV of 1860)--
----S. 376--Administration of justice--Conviction
must be based on unimpeachable, trustworthy and reliable
evidence. [P. 280] L
Pakistan Penal Code, 1860
(XLV of 1860)--
----S. 376--Benefit of doubt--Any doubt arising in
prosecution case is to be resolved in favour of the
accused. [P. 280] M
Mr. Muhammad Sohail
Dar, ASC for Petitioner (Via video link from
Lahore).
Mirza Abid Majeed, DPG Punjab for State.
Date of hearing:
11.08.2023.
Judgment
Sayyed Mazahar Ali
Akbar Naqvi, J.--Petitioner along with co-accused was tried by the
learned Additional Sessions Judge, Sialkot, pursuant to a case registered vide FIR
No. 269/2018 under Sections 376-II/337-J, PPC at Police Station Neikapura,
Sialkot for committing zina with the complainant. The learned Trial Court vide its
judgment dated 19.11.2019 while acquitting the co-accused, convicted the under
Section 376, PPC and sentenced him to rigorous imprisonment for 10 years. He
was also directed to pay fine of
Rs. 50,000/- or in default whereof to further undergo two months SI. Benefit of
Section 382-B, Cr.P.C. was also extended to the petitioner. In appeal the
learned High Court maintained the conviction and sentences recorded by the
learned Trial Court.
2. The prosecution
story as given in the impugned judgment reads as under:
“2. As per story narrated by the complainant Mst. Azmat Sultan in her
written application EX.P.B, 8/10 months ago, accused Ata Mustafa came to her
house and requested her to resolve the dispute between his father and mother as
she deal with social welfare work. Then she went to the house of accused
Ata-ul-Mustafa on his request where she met three ladies namely Samina, mother
of accused Ata-ul-Mustafa and Aisha and Khadija, sisters of accused
Ata-ul-Mustafa who caused to drink her some intoxicated juice and after that
she became unconscious. Thereafter complainant was shown a blue film which was
captured by accused Ata-ul-Mustafa after administering her intoxicating liquid.
Thereafter accused
Ata-ul-Mustafa kept on blackmailing and threatening the complainant, and used
to obtain money from her on different occasions. On 08.05.2018 at about 3/4:00
p.m, complainant called accused Ata-ul-Mustafa on mobile phone and requested
him to delete her video and pictures as she is having a family. On the same day
at about 9:00 p.m, accused called the complainant outside and with the
assurance of deleting the video and pictures, took her to his house on a
Rickshaw and again administered intoxicating juice to her and accused persons
Ata-ul-Mustafa and Habib committed rape with the complainant one by one. When
complainant gained conscious she found herself in Civil Hospital, Sialkot. Then
complainant narrated whole story to her son and brother-in-law, and also
informed the police for taking action.”
3. After completion of
the investigation, report under Section 173, Cr.P.C. was submitted before the
Trial Court. The prosecution in order to prove its case produced seven
witnesses. In his statement recorded under Section 342, Cr.P.C., the petitioner pleaded his innocence and
refuted all the allegations levelled against him. However, he did not opt to
appear as his own witness on oath as provided under Section 340(2), Cr.P.C. in
disproof of the allegations levelled against him. He also did not produce any
document in his defence.
4. Learned counsel for
the petitioner/convict contended that the prosecution case is based on whims
and surmises and it has to prove its case without any shadow of doubt but it
has miserably failed to do so. Contends that there is
no evidence to prove the guilt of the petitioner except the solitary statement
of the victim. Contends that the
medical evidence did not corroborate the stance of the victim. Lastly contends that the reasons given by the learned High Court
to sustain conviction of the petitioner are speculative and artificial in
nature, therefore, the impugned judgment may be set at naught.
5. On the other hand,
learned Law Officer has defended the impugned judgment. He contended that there
is no material contradiction in the prosecution evidence and the prosecution
has proved its case beyond any shadow of doubt by producing convincing evidence,
therefore, the petitioner does not deserve any leniency from this Court.
6. We have heard
learned counsel for the parties at some length and have perused the evidence
available on the record with their able assistance.
7. In the present
case, the complainant/victim Azmat Sultana, who appeared as PW-5 is the star
witness of the prosecution. In her deposition, she reiterated her stance as
narrated in the crime report and alleged the petitioner and his co-accused to
have committed rape with her. By now it is well settled that the testimony of a
victim in cases of sexual offences is vital and unless there are compelling
reasons which necessitate looking for corroboration of a statement, the Courts
should find no difficulty to solely rely on the testimony of the victim of a
sexual assault to convict the accused. However, the strict condition for this
is that the same shall reflect that it is independent, unbiased and
straightforward to establish the accusation against the accused and if the
Court finds it difficult to accept victim’s version, it may seek corroboration
from some evidence which lends assurance to her version. In the present case,
we have noted that the victim Mst. Azmat Sultana was 49 years of age while the
petitioner was a young lad of 20 years old at the time of commission of the
alleged offence. Although it is not impossible that a twenty years old boy
cannot commit zina with such an older woman but the story told by the victim is
not plausible. According to her, the petitioner’s mother and his two sisters
gave her some intoxicating drink, which made her unconscious and during this
period, the petitioner and his friend committed rape with her. It is generally
seen in our society that no matter how morally bad one is, he cannot do such
kind of act in front of his mother and sisters. On our specific query, learned
Law Officer admitted that the story narrated by the victim does not appeal to
reason to the mind of a prudent man. In such circumstances, this Court is duty
bound to weigh the other materials and evidence on record to come to the
conclusion on guilt or otherwise of the petitioner. The victim was examined by
Dr. Ayesha Aman (PW-1) and as she was admittedly a married lady, therefore,
medico legal report showing her hymen to be old ruptured was inconsequential.
The blood sample of the victim was taken and sent to Punjab Forensic Science
Laboratory for forensic toxicology and according to the Forensic Toxicology
Analysis Report, “Alprazolam” was detected in her blood. Alprazolam is used to
treat anxiety and panic disorder. The same is in a class of medications called
‘benzodiazepines’ and it works by decreasing abnormal excitement in the brain.
It seems the victim was a patient of depression and she had some mental
problems. The victim had leveled a specific allegation of intoxicating material
being administered to her but neither anything containing intoxicating material
was recovered nor any intoxicating material was found in her blood in the medico legal report. A bare perusal of
record reflects that the victim had lodged a similar kind of case against
another person but the same ended in compromise later on. This conduct of the
victim adversely reflects on her credibility and does not require a flattering
commentary. There is no denial to this fact that DNA test report revealed that
possibility cannot be ruled out that the petitioner is the contributor of the
semen detected on the vaginal swabs of the victim. It shows that the DNA report
is not conclusive and certain about the guilt of the petitioner. The victim had
leveled allegation of rape against two persons but according to the report of
PFSA the co-accused of the petitioner was eliminated as being the contributor
of male DNA. This means that whatever the victim said was not entirely true.
Even otherwise, the DNA report cannot be treated as primary evidence and can
only be relied upon for the purposes of corroboration and as stated above the
evidence of the victim is not of such character, which can solely be relied
upon to sustain conviction of the petitioner. When all the above-narrated
circumstances are juxtaposed i.e. the implausible stance of the
victim, her lodging of similar kind of case against another person and then
patching up the matter after receiving hefty amount and the dubious DNA test
report, it makes the prosecution case not free from doubt. These are the dents,
which are so grave and sensational that they are squarely hampering the
authenticity of the prosecution case. Therefore, it can safely be concluded
that the prosecution has miserably failed to substantiate its case.
8. Mere heinousness of
the offence if not proved to the hilt is not a ground to punish an accused. It
is an established principle of law and equity that it is better that 100 guilty persons should let off but one
innocent person should not suffer. The peculiar facts and circumstances of the
present case are sufficient to cast a shadow of doubt on the prosecution case,
which entitles the petitioner to the right of benefit of the doubt. It is a
well settled principle of law that for the accused to be afforded this right of
the benefit of the doubt, it is not necessary that there should be many
circumstances creating uncertainty and if there is only one doubt, the benefit
of the same must go to the accused. Reliance is placed on Mst. Asia
Bibi vs. The State (PLD 2019 SC 64), Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC
1048) and Abdul Jabbar vs. State (2019 SCMR 129). The conviction must be based on unimpeachable, trustworthy and
reliable evidence. Any doubt arising in prosecution case is to be resolved in
favour of the accused. However, as discussed above, in the present case the
prosecution has failed to prove its case beyond any reasonable shadow of doubt.
9. For what has been
discussed above, we convert this petition into appeal, allow it and set aside
the impugned judgment. The petitioner is acquitted of the charge. He shall be
released from jail unless detained/required in any other case. The above are the
detailed reasons of our short order of even date.
(K.Q.B.) Petition
allowed
