IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-72 of 2017

Appellant/Complainant : Mst.Abida Khatoon w/o Muhammad Hashim by caste Lashari through

Mr.Saeed Ahmed Bijarani, Advocate

Respondents : Through Mr.Safdar Ali Bhutto,

Advocate for private respondent

The State Mr.Sharafuddin Kanhar, A.P.G

Date of hearing : 07.01.2019

Date of decision : 07.01.2019

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 30.11.2017, passed by learned 1^st Additional Sessions Judge, Kandhkot, whereby the private respondent has been acquitted of the offence punishable under section 376 PPC, for which he was charged.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondent allegedly by committing trespass into house of the appellant/complainant committed rape with her daughter baby Muskan, aged about 11/12 years, for that he was reported upon by the police to face trial.

3. At trial, the private respondent did not plead guilty to charge and the prosecution to prove it examined PW-01 appellant/complainant (Exh.03), she produced FIR of the present case, PW-02 victim baby Muskan (Exh.04), she produced the police letter whereby she was referred to hospital, PW-03 Women Medical Officer Dr.Ghazala Shaikh (Exh.05), she produced provisional as well as final medical certificate and report of the chemical examiner, PW-04 Mashir Zaffar Ali (Exh.06), he produced memo of recovery of cloth of victim and place of incident, PW-05 SIO/ASI Ghulam Shabir (Exh.07) and prosecution then closed the side.

4. The private respondent in his statement recorded u/s 342 Cr.PC denied the prosecution allegation by pleading innocence by stating that;

“Sir there was some amount of me outstanding against the husband of complainant namely Muhammad Hashim since 2010 super flood. I was continuously demanding the said amount from the husband of complainant namely Muhammad Hashim, he kept me on false hopes for return of my amount. He wanted to usurp my said amount. In order to usurp my said amount he managed false story and he alongwith PWs have deposed against me falsely”.

By stating so, the private respondent produced DNA report, which according to him is in negative. He did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondent of the charge by way of judgment, which the appellant/complainant has impugned before this Court by way of instant criminal acquittal appeal, as stated above.

6. It is contended by learned counsel of the appellant/complainant that the prosecution has been able to prove its case against the private respondent beyond shadow of doubt by way of producing cogent evidence yet the private respondent has been acquitted of the charge by learned trial Court without lawful justification. By contending so, he sought for adequate punishment for the private respondent. In support of his contention, he relied upon case of Khadim Hussain Vs. The State (2011 PCr.LJ-1443).

7. Learned A.P.G for the State did not support the impugned judgment by stating that it is based on misreading of evidence, while learned counsel for the private respondent sought for dismissal of the instant criminal acquittal appeal by supporting the impugned judgment by stating that it is well reasoned and is based on the basis of proper appraisal of evidence. In support of his contention he relied upon case of Azhar Ali Vs. The State (PLD 2010 SC-632).

8. I have considered the above arguments and perused the record.

9. Admittedly, the alleged incident took place on 28.09.2016. In first instance, it was reported by the appellant/complainant to police on 30.09.2016, such report of the incident was recorded by police in roznamcha under entry No.25/1915 hours, dated 30.09.2016. Such roznamcha entry does not take mention of any of the culprit responsible for the alleged incident, which appears to be significant. The FIR of the incident was lodged by the appellant/complainant on 01.10.2016, with delay of about three days to the incident. The explanation which is offered by the appellant/complainant for lodging her FIR with such delay is to the effect that she consulted her Nekmards before lodging the FIR. No Nekmard was examined by the prosecution at trial who allegedly was consulted by appellant/complainant before lodging FIR of the incident, which appears to be significant. Be that as it may, it was stated by the appellant/complainant that on the date of incident, her kids were in School and her husband was out with piece of work, while she and victim baby Muskan were alone in their house and were sitting in separate rooms, when the incident took place. If all the kids of appellant/complainant at the time of incident were in School, then under what circumstances baby Muskan was sitting in her home. The explanation offered to it by the appellant/complainant was that baby Muskan on the date of incident did not go to the School. The appellant/complainant in that respect has been belied by baby Muskan by stating that she on the date of incident after attending School came back to her home. If it was so then the brother and sisters of baby Muskan who allegedly at the time of incident were in their School ought to have been back in their home with baby Muskan. Their non-availability at the place of incident and at the time of incident could not be lost sight of. PW Muhammad Hashim who happened to be husband of appellant/complainant and father of baby Muskan, as per appellant/complainant soon after incident came at place of incident and then chased the accused. If it was so, then he being material witness ought to have been examined by the prosecution. His non-examination without lawful justification would entail a logical inference that he was not going to support the case of prosecution. PW Mashir Zaffar Ali being son of appellant/complainant was having reason to support his mother and his evidence as such could hardly be relied upon. Baby Muskan as per woman medical officer Dr.Ghazala was examined on 01.10.2016. It was on 3^rd day of the incident. What happened to baby Muskan in between? It is not explained by the prosecution. The sperms taken out from vaginal swab of baby Muskan on 01.10.2016 were delivered to the chemical examiner on 07.10.2016 with delay of about five days. No explanation to such delay is offered by the prosecution. The sperms as per woman medical officer Dr.Ghazala Shaikh usually become dead after three days. If it is so then how the sperms in the present case remained alive for about nine days? No explanation to it is offered by the prosecution. In that situation, no much reliance could be placed upon report of chemical examiner. As per baby Muskan, she remained in hospital for about one day. She in that respect is belied by woman medical officer Dr.Ghazala Shaikh by stating that baby Muskan was not admitted as indoor patient. Such inconsistency could not be lost sight of. The DNA report which was conducted on the orders of this Court during course of hearing of bail application of private respondent suggests something different to the case of prosecution, which reads as under;

“Result.

Male DNA profile was obtained from semen stains identified on item: 1.1 and Item 3.0 (blue colour trouser and cutting from trouser of victim Muskan d/o Muhammad Hashim Lashari) are of same person and does not share required alleles with the DNA profile obtained from item 5.0 (blood sample of suspect Khalid Hussain son of Abdul Haq Mirani”

Conclusion:

Mr.Khalid Hussain son of Abdul Haq Mirani (item 5.0) is not the contributor of semen stains/sperm fractions identified on the blue color trouser and cutting from trouser of victim Muskan d/o Muhammad Hashim Lashari from 1.1 and item 3.0)”.

10. SIO/ASI Ghulam Shabir during course of his examination stated that on 30.09.2016, he was duty officer at P.S Karampur, on the same date, at about 1915 hours, there came appellant/complainant Mst.Abida Khatoon and disclosed the commission of incident. By stating so, he denied recording report of the incident even in roznamcha which as said above, was recorded in roznamcha under entry No.25/1915 hours, dated 30.09.2016, by him and it does take mention even in mashirnama of recovery of cloth of victim baby Muskan. On asking, it was stated by SIO/ASI Ghulam Shabir that he did not record statement of any independent person. Why he did not record statement of independent person of the locality? No explanation to it is offered by the prosecution. In these circumstances, the role played by SIO/ASI Ghulam Shabir in the present case could be said was only to the extent of table investigation. The table investigation could hardly improve the case prosecution.

11. In said circumstances, the learned trial Court was right to record acquittal of the private respondent by extending him benefit of doubt, by way of impugned judgment.

12. The case law which is relied upon by learned counsel for the appellant/complainant is on distinguishable facts and circumstances. In that case, the accused impugned his conviction and sentence by way of filing an appeal, it was dismissed. In the instant matter, the appellant/complainant has impugned the acquittal of the private respondent, which has been recorded by the learned trial Court with very cogent reasons, and it could not be interfered with, such acquittal of the private respondent is carrying with it, the presumption of double innocence.

13. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

14. For what has been discussed above, the instant criminal acquittal appeal fails and it is dismissed accordingly.

JUDGE