JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal.No.S-79 of 2018.
_________________________________________________________________
DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
_________________________________________________________________
For hearing of main case.
20.10.2021
Mr. Habibullah Ghouri, Advocate for the appellants.
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.
= * = * = * = * = * =
IRSHAD ALI SHAH, J.- The appellants for allegedly committing rape with baby Zaheeran a girl aged about 10 years, after due trial for an offence punishable under section 376 Sub Section (3) r/w Section 34 PPC were convicted and sentenced to undergo rigorous imprisonment for life and pay fine of Rs.50,000/- each and in case of their failure to make payment of fine, to undergo simple imprisonment for Six months by learned 2nd Additional Sessions Judge, Mehar, vide judgment dated 05.09.2018, which is impugned by the appellants before this Court, by preferring the instant criminal appeal.
2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party; the FIR of the incident has been lodged with delay of about one day; 161 Cr.PC statements of the PWs have been recorded with considerable delay even to FIR; there was matrimonial dispute between the parties and evidence of the complainant and his witnesses being doubtful in its character, has been believed by learned trial Court without assigning cogent reasons, more-so, the complainant has also recorded no objection to acquittal of the appellants by filing his statement/affidavit before this Court, therefore, the appellants are entitled to their acquittal by extending them benefit of doubt. In support of his contentions, he has relied upon case of Javed Iqbal and another Vs. The State (2018 SCMR-1380).
3. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the appellants have committed the offence, which is affecting the society at large.
4. I have considered the above arguments and perused the record.
5. It is stated by the complainant that on 31.01.2017, when and he and PWs Muhammad Aslam and Muhammad Muslim, were working at their lands, there came baby Zaheeran, she after delivering meal to them went back. On hearing her cries, they went there and found appellant Jalal holding her hands while appellant Murtaza committing rape with her, they made their escape good and they went at P.S Mehar, from there baby Zaheeran was referred to hospital for medical examination and after her medical examination, he lodged report of the incident with police on next date of incident. Such delay having not been explained plausibly could not be overlooked; it is reflecting consultation and deliberation. PW Muhammad Aslam has not been examined by the prosecution, for no obvious reason. The presumption which could be drawn of his non-examination under Article 38 of Qanun-e-Shahadat, 1984, would be that he was not going to support the case of prosecution. PW Muhammad Muslim no doubt has attempted to support the complainant in his version but his evidence could hardly be relied upon for the reason that his 161 Cr.PC statement as per SIO/SIP Razi Khan was recorded on 05.02.2017; it was with delay of about five days, which prima facie suggests that he was a managed witness. 161 Cr.PC statement of PW/baby Zaheeran as has come on record, was recorded on 23.05.2017, it is with delay of about 23 days to the incident. No explanation to such delay is offered by the prosecution. As per medical officer Dr.Shamsunisa, baby Zaheeran in her vagina admitted two fingers easily, which suggests that she has entered into sexual activity previously. There is no DNA report. The report of chemical examiner could not be used against the appellants, as it has not been subjected to them during course of their examination under section 342 Cr.PC. As per SIO/SIP Razi Khan, on arrival of the complainant, roznamcha entry was recorded by him. It has not been produced in his evidence. Technically, it was first information report. Its non-production could not be ignored. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.
6. In case of Mehmood Ahmed & others vs. the State and another (1995 SCMR-127), it was observed by the Hon’ble Court that;
“Delay of two hours in lodging the
FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for
roping in such persons whom ultimately the prosecution might wish to implicate”.
7. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;
“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”
8. In case of Tarique Pervaiz vs. The State (1995 SCMR 1345), it observed by Hon’ble Apex Court that;
“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”
9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence for which they have been charged, tried and convicted by the learned trial Court, they shall be released forthwith in present case, if they are not required to be detained in any custody case.
10. Above are the reason for short order of even date, for which the instant appeal was allowed.
JUDGE
.