IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.S-101 of 2019

Appellants :    1). Ghulam Muhammad s/o Taj Muhammad,

2). Dadoo @ Raees s/o Imam Din,

                                                     3). Pariyal s/o Lutuf, all by caste Mugheri,

                                                                                  Through M/s. Rafique Ahmed Abro & Ashiq Ali Jatoi,                                                                          Advocates        

Complainant :               Mushtaq Ahmed s/o Naimatullah Kumbhar                                                   Through Mr. Sarmad Ali Shahani, Advocate                     

The State :           Through Mr.Muhammad Noonari, D.P.G

Date of hearing                  :           07.08.2020             

Date of decision                :         07.08.2020                          

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellants in furtherance of their common intention, committed rape with baby Sanam, for that they were booked and challaned by the police.

2.                    At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined complainant Mushtaq Ahmed and his witnesses and then closed the side.

3.                    The appellants in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine themselves on oath or anyone in their defence.

4.                    On evaluation of evidence, so produced by learned 1^st Additional Sessions Judge, Shahdadkot, found the appellants to have committed offence punishable u/s.376/2 PPC, therefore vide judgment dated 30.10.2019, convicted and sentenced them as under;

“the accused persons namely Ghulam Muhammad and Dado @ Raees for an offence punishable under section 376(ii)  of Pakistan Penal Code and they are hereby are sentenced to life imprisonment. They shall also pay fine of Rs.1,00,000/- (rupees one lac only) each to the victim fine. In case of failure in payment of fine, the convicted accused persons shall undergo six months more simple imprisonment while the accused Pariyal though he did not commit Zina but he has played a role of facilitator therefore, he also deserve punishment. Accordingly, he is convicted and sentenced to undergo R.I for ten years and to pay fine of Rs.100,000/- (one lac rupees only) in case of failure he shall suffer six months more simple imprisonment. So far the accused Khabbar Khan is concerned since the victim baby Sanam during her evidence has not implicated him therefore the benefit of doubt is extended to him as of his right and he is acquitted from the charges under section 265-H(i) Cr.PC”.

5.                    The appellants being dissatisfied with the above said judgment has impugned the same before this Court by way of instant criminal appeal

6.                    It is contended by learned counsels for the appellants that the appellants being innocent have been involved in this case falsely by the police; the FIR has been lodged with unexplained delay of about two days; there was no DNA report of victim baby Sanam and it was case of no evidence, yet the appellants have been convicted and sentenced by learned trial Court without lawful justification. By contending so, they sought for acquittal of the appellants. 

7.                    Learned counsel for the complainant has recorded no objection to acquittal of the appellants while learned D.P.G for the State has sought for dismissal of the instant appeal by contending that the appellants have been involved in commission of the incident by victim baby Sanam.

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

9.                    Complainant Mushtaq Ahmed and PWs Manzoor Hussain and Riaz Hussain have not supported the case of prosecution and they were declared hostile by learned prosecutor. No doubt, PW/victim baby Sanam has supported the case of prosecution to some extent but on asking was fair enough to state that she has neither disclosed the names of appellants before the police nor they are the same. In that situation, the involvement of the appellants in this case is appearing to be doubtful. In these circumstances, it would be unjustified to maintain the conviction and sentence against the appellants, on the sole evidence of medical and investigating officer.         

10.                  In case of Faheem Ahmed Farooqui Vs. The State (2008 SCMR-1572), wherein it has been held by the Honourable Apex Court that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

11.                  For what has been discussed above, the impugned judgment is set-aside. Consequently, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they shall be released forthwith if they are no more required in any other custody case.

12.                  The instant criminal appeal is disposed of accordingly.

                                                                                                J U D G E