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