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Criminal Appeal No. 160 of 1982, decided on 1st November, 1982.

--- S. 376-Rape, offence of-Evidence, appreciation of-Benefit of doubt--Statement of prosecutrix imputing pregnancy to accused finding no support whatsoever from any other source-Mother of prosecutrix strongly refuting allegation that accused misconducted himself with her daughter-No evidence that during relevant period prosecutrix had no access to some one else-Held: Unsafe to base conviction of accused upon sole testimony of pro secutrix-Accused given benefit of doubt and acquitted, in circumstances.--[Benefit of doubt].

Ch. Ghulam Qadir for Appellant.

Nemo for the State.

Dates of hearing : 24th October and 1st November, 1982.

The appellant, Abdullah (aged 40 years) was convicted by a Magistrate, exercising enhanced powers under section 30 of the Code of Criminal Procedure, of an offence under section 376 of the Pakistan Penal Code and was sentenced to suffer rigorous imprisonment for a period of seven years. He has filed this appeal against his conviction and sentence.

2. The allegations against the appellant are that over a period of many months in 1978 he committed rape upon his step daughter, Mst. Halima Khatoon (P. W. 3) who was about 15, years of age at the relevant time. The father of Mst. Halima Khatoon (P. W. 3) was dead and her mother married the appellant when she was only 6/7 years of age. Con sequent upon the forcible intercourse which the appellant allegedly had with her she became pregnant. In the beginning the pregnancy was con cealed but when it reached an advanced stage it became known in the mohalla. On the evening of 14th September, 1978 the residents of the mohalla surrounded the house of the appellant and raised a loud protest. This attracted A. S. I. Mian Muhammad of Police Station Misri Shah who was on patrol duty in the area. He recorded the statement of Mst. Halima Khatoon (P. W. 3). On the basis of her statement a case was registered at Police Station Misri Shah. On the following day Lady Doctor Farhat Iqbal (P. W. 7) of Services Hospital examined Mst. Halima Khatoon (P. W. 3). In her opinion Mst. Halima Khatoon (P. W. 3) was in 28th week of pregnancy. There were no marks of violence on her person.

3. The appellant pleaded not guilty to the charge of rape against him. His case was that Mst. Halima Khatoon (P. W. 3) used to often visit the house of her uncle and it was in the course of these visits that she became pregnant. He denied that he ever had sexual intercourse with the girl. He produced two witnesses in his defence.

4. The conviction of the appellant is based entirely upon the testimony of Mst. Halima Khatoon (P. W. 3). She stated that the appellant was a night-watch man in the Railways and that he used to spend the day in the house where she also lived with hec mother. The appellant would send her mother out of the house to seek alms and then commit rape upon her. On one occasion she complained to her mother but she was snubbed by the latter who said that it was of no consequence.

5. The statement of Mst. Halima Khatoon (P.W. 3) in so far as it imputes her pregnancy to the appellant finds no support whatsoever from any other source. Her mother Mst. Nasima Khatoon (P. W. 1) strongly refuted the allegation that the appellant had misconducted himself with her daughter. One of the neighbours, namely, Muhammad Sharif (P. W. 2), who was examined by the prosecution in support of its case expressed complete ignorance in the affair and was declared hostile.

6. I am not prepared to hold the refusal of the mother of the prosecutrix to support the story of her daughter as a circumstance against the prosecution for her dilemma in the matter is well under standable. But then it will also be unsafe to found the conviction of the appellant upon the sole testimony of Mst. Halima Khatoon (P. W. 3) which as mentioned above finds no corroboration from any source whatsoever. Her reticence during the period the appellant was allegedly misbehaving himself with her is a circumstance unfavourable to her story. The evidence of the prosecution does not indicate that she had no other relation in the town, to whom she could have complained. In fact she admitted that just before the occurrence she had been visiting the house of her maternal aunt. There is also no evidence that during the relevant period she remained totally locked up in her house so much so that the only person who could have access to her was the appellant. In the circumstances even though I am not prepared to reject her story as totally incredible I am of the view that it is of a quality which cannot be implicitly relied upon for A sustaining the conviction of the appellant on such a serious charge as rape. I would, therefore, give the benefit of doubt to the appellant set aside his conviction and sentence and acquit him of the charge against him. He shall be set at, liberty forthwith if not required in any -other case.

Appeal allowed.

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