JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal.No.S-23 of 2019.

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DATE                                       ORDER  WITH  SIGNATURE  OF  HON’BLE  JUDGE

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For hearing of main case.

16.12.2021

                        Mr. Abdul Hameed Mangi, Advocate for the appellant.

                        Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH, J.- Facts in brief necessary for disposal of instant criminal appeal are that the appellant attempted to commit rape with baby Komal aged about 6/7 years, for that he was booked and reported upon. After due trial, he for an offence punishable under section 376 r/w Section 511 PPC was convicted and sentenced to undergo rigorous imprisonment for 12 ½ years and to pay fine of rupees Twenty thousand and in default whereof to undergo simple imprisonment for three months, with benefit of Section      382-B Cr.PC, by learned 5^th Additional Sessions Judge, Shikarpur, vide judgment dated 16.04.2019, which is impugned by the appellant before this Court by preferring the instant criminal appeal.

                        As per complainant Pervez Ali and PW Naseem that the appellant was seen by them to have put off shalwar of baby Komal and then was intending to commit rape with her. The simple assertion on the part of complainant and his witness is not enough to conclude that the intention with the appellant was to commit rape with baby Komal. Baby Komal and PW Sadaruddin have not been examined by the prosecution, for no obvious reason. The medical evidence is not supporting the allegation of rape with baby Komal. In these circumstances, a case at the most for outraging modesty of baby Komal with use of criminal force obviously is made out, which is punishable under section 354 PPC and it entails imprisonment for a term which may extend to two years or fine or with both.

                        In case of Yaseen Vs. The State (PLD 1983 FSC-53), it has been held by the Honourable Court that;

“Now it is clear from the record that the appellant was at most found lying on Mst.Sardaran and trying to make her naked by removing her Shalwar. He did not succeed in the attempt at removal of the Shalwar. Some of the judgments of the Federal Shariat Court have gone only to the extent of holding that if the accused takes away his own Shalwar and is also successful in removing the Shalwar of the victim, it would amount to attempt at Zina-bil-Jabr. But in the present case even that stage was not reached. In the circumstances of the case if the Shalwar had been removed. I would have agreed with the finding of the learned Additional Sessions Judge that this was an attempt since the appellant was not only lying upon Mst.Sardaran but was also making an effort to commit sexual intercourse with her. I would also have agreed on this point with the learned Additional Sessions Judge if there had been evidence that the Shalwar had been torn from a place which would have facilitated the commission of the sexual act but even that evidence is not forthcoming since the Shalwar is not available. In these circumstances it cannot be held that the appellant had been guilty of committing the offence of attempt under section 18 of the said Ordinance. Since he had committed another offence, under section 354 P.P.C. he can only be convicted and sentenced under that section. I therefore allow this appeal, set aside the conviction and sentence under section 18 and convert the conviction to one under section 354 P.P.C. The appellant shall undergo two years’ R.I. and pay Rs.2,000 as fine. If the fine is recovered a sum of Rs.1,500 shall be paid to Mst.Sardaran as compensation. In case of default in the payment of fine the appellant shall undergo further R.I. for a period of six months.”

                        Learned counsel for the appellant and learned Addl.P.G for the State when were confronted with above proposition, were fair enough to say that they would be having no objection, if the punishment awarded to the  appellant under section 376 r/w Section 511 PPC is modified with one under Section 354 PPC.

                        In view of above, the conviction and sentence awarded to the appellant under section 376 r/w Section 511 PPC is modified with one under section 354 PPC and consequently the appellant is convicted and sentenced to rigorous imprisonment for two years with fine of rupees ten thousand    and in default whereof, to undergo simple imprisonment for one month,   with benefit of Section 382-B Cr.PC.

                        With above modification, instant criminal appeal is dismissed.

JUDGE