IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 484 of 2020
Appellant: Muhammad
Bilal through Mr. Irfan Aziz advocate
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 11.11.2022
Date of judgment: 17.11.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is the case of the prosecution that the
appellant subjected Mst. Sumbul to rape, whereby she conceived pregnancy and
then gave birth to a baby boy, for that he was booked and reported upon; he denied
the charge and prosecution to prove it, examined complainant/victim Mst. Sumbul
and her witnesses and then closed its side. The appellant in his statement
recorded under Section 342 Cr.P.C denied the prosecution’s allegations by
pleading innocence he did not examine anyone in his defence or himself on oath.
On conclusion of trial, the appellant was convicted under Section 376 PPC and
sentenced to undergo life imprisonment and to pay fine of Rs. 100,000/- and in
default whereof to undergo simple imprisonment for 03 months with benefit of
section 382(b) Cr.P.C by learned II-Additional Sessions Judge, Karachi Central
vide judgment dated 08.10.2020, which is impugned by him before this Court by
preferring the instant appeal.
2. It is contended by learned counsel for
the appellant that the appellant being innocent has been involved in this case
falsely by the complainant party only to pressurize him to marry the
complainant; the FIR of the incident has been lodged with delay of about 08
months; there is no eye witness to the incident; DNA report is managed one and
evidence of the P.Ws being inconsistent and doubtful has been believed by
learned trial Court without assigning cogent reasons, therefore, the appellant
is entitled to his acquittal by extending him benefit of doubt. In support of
his contentions, he relied upon cases of (i)
Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274), (ii) Zahir
Shah alias Shat vs. The State through Advocate General, Khyber Pakhtunkhwa
(2019 SCMR 2004), (iii) Mst. Sobia Shaheen vs. Abdul Shakoor and another (2013
P.Cr.L.J 1110) and (iv) Muhammad Javed vs. The State (2019 SCMR 1920).
3. None has come forward to advance
arguments on behalf of the complainant. However, learned D.P.G for the state by
supporting the impugned judgment has sought for dismissal of the instant appeal
by contending that it was continuous offence which the prosecution has been
able to prove against the appellant beyond shadow of doubt by establishing the
parentage of baby boy through DNA report. In support of his contentions he
relied upon cases of (i) Abdul Khaliq vs.
The State (1995 SCMR 1412), (ii) Hafiz Muhammad Riaz vs. The State (1998 SCMR
1126), (iii) Shahzad alias Shaddu and others vs. The State (2002 SCMR 1009), (iv)
Bashir Ahmad vs. The State (2004 SCMR 244), (v) Muhammad Naeem vs. The State
(2005 SCMR 284), (vi) Amir Muhammad vs.The State (2007 SCMR 452) and (vii) Shakeel
and 5 others vs. The State (PLD 2010 S.C 47).
4. Heard arguments and perused the record.
5. It is inter-alia stated by the
complainant/victim that after divorce she was residing with her parents, the
appellant subjected her to rape under deception that he would marry her; whereby
she conceived pregnancy and then related the incident to her parents and then lodged
report of the incident with the police. The delay in lodgment of the FIR is not
appearing to be fatal for the reason that it was the appellant who kept the
victim on false hopes and promises to marry her. The appellant as per the
complainant was instrumental for her divorce. After lodgment of the FIR, the
complainant gave birth to a baby boy and on DNA examination, the appellant was
found to be his biological father, which prima facie suggests that the
appellant has subjected the complainant to rape. Despite lengthy cross-examination,
the complainant has stood by her version on all material points; therefore, she
could not be disbelieved only for the reason that there is no eye witness to the
incident. Indeed the complainant herself is an eye witness to the incident and
apparently, she was having no reason to have involved the appellant in this
case falsely being her cousin. Evidence of P.W Muhammad Ali supports the complainant
to the extent that it was the appellant who made her pregnant and then refused
to marry her, for one or the other reason. Evidence of P.W Dr. Sumiya is to the
extent that she medically examined the complainant and found her to be pregnant
with an advance stage. No doubt, the samples for DNA were sent to LMCH Jamshoro
for analyze with delay of few days, but there could be made no denial to the
fact that such delay is well explained by the I.O/SIP Muhammad Aslam by stating
that it occurred for want of approval of the superiors. The delay in analyzing
the samples to determine the parentage of baby boy even otherwise, could hardly
be treated to be fatal to the case of prosecution. There appears no
inconsistency between evidence of the complainant and her witnesses on merits
of the case. In these circumstances, it would be safe to conclude that the
prosecution has been able to prove its case against the appellant beyond shadow
of doubt.
6. The case law which is relied upon by
learned counsel for the appellant is on distinguishable facts and
circumstances. Case of Azeem Khan and
another (supra) was relating to murder and abduction. In the instant
matter, no abduction or murder has taken place. In case of Zahir Shah alias Shat (supra), recovery of narcotics substance was
involved. In instant matter no recovery of narcotics substance is involved. In
case of Mst. Sobia Shaheen (supra), it
was an appeal against acquittal. In the instant matter no acquittal is
questioned. In case of Muhammad Javed
(supra), no semen grouping or DNA test was conducted. In the instant matter
DNA test is conducted which has proved the appellant to be biological father of
the baby boy, which the complainant conceived on account of rape with her by
the appellant.
7. In
the case of Atif Zareef and others vs.
The State (PLD 2021 S.C 550), it has been held by Honourable Apex court that;
“……The involvement of
Sher Baz Khan alias Sheru and Atif Zareef in commission of this offence is
corroborated by the DNA test report (Ex-PS), which is considered, due to its
scientific accuracy and conclusiveness, as a gold standard to establish the
identity of an accused and a very strong corroborative piece of evidence. The
prosecution has thus proved its case against the appellants, Sher Baz Khan
alias Sheru and Atif Zareef beyond reasonable doubt……”
8. In view of above, it is concluded safely
that no case for making interference with the impugned judgment is called for
by this Court by way of instant appeal, it is dismissed together with the
pending application, if any.
JUDGE