IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 496 of 2022

Criminal Appeal No. 512 of 2022

Appellants: Ubaid Hussain and Tariq Khan through M/s Syed Aminuddin Fakir and Ghulam Mustafa Kolachi advocates

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 23.11.2022

Date of judgment: 23.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellants with rest of the culprits by committing trespass into the house of complainant Mst. Rukhsana Jabbar not only robbed her of her cell phone, cash worth Rs.50,000/- and ½ Tola Gold but subjected her to rape one after the other, for that they were booked and reported upon by the police. On conclusion of trial, the appellants were convicted under Sections 392/34 PPC and sentenced to undergo R.I for 07 years and to pay fine of Rs.50,000/- each and in default whereof to undergo S.I for 06 months; they were further convicted under Section 397/34 PPC and sentenced to undergo R.I for 07 years and to pay fine of Rs.50,000/- each and in default whereof to undergo S.I for 06 months; they were further convicted under Section 376(ii)/34 PPC and sentenced to undergo R.I for life, all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned Additional Sessions Judge-X, Karachi West vide judgment dated 22.07.2022 which is impugned by the appellants before this Court by preferring two separate appeals.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of the complainant; the FIR has been lodged with unexplained delay of about 01 day; there is no recovery of robbed property; the identification parade is defective on and evidence of the P.Ws being doubtful has been believed by learned trial Court without lawful justification, therefore appellants are entitled to their acquittal. In support of their contentions, they relied upon case of Salman Akram Raja and another vs. Government of Punjab through Chief Secretary and others (2013 SCMR 203).

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal appeals by contending that it was the case of gang rape coupled with robbery which the prosecution has been able to prove against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant/victim Mst. Rukhsana Jabbar that on 07.01.2021, when she, her father-in-law, mother-in-law, brother-in-law and nephew were sleeping in their house, their came the appellants with two more culprits, they by committing robbery of her cell phone, cash worth Rs.50,000/- and ½ Tola gold subjected her to rape one after other and then went away, therefore, she reported the incident to police, by making such statement under Section 154 Cr.P.C, it was recorded on 08.01.2021 by I.O/ASI Abdul Sattar, it was with unexplained delay of about 01 day to the incident. It was lodged against unknown culprits of Sindhi origin. On 31.01.2021, the appellants were arrested in present case formally by I.O/SIP Sajjad Ali and during course of inquiry, they admitted before him to have committed the alleged incident. If for the sake of arguments, it is believed that such disclosure was actually made by the appellants even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against them. On asking, it was admitted by the complainant that after arrest of the appellants, she was called by the police at police station. If it was so, then possibility that the appellants have been shown to her by the police prior to formal identification parade could not be ruled out. It was further stated by the complainant that during course of identification parade, she identified the appellants to be the persons responsible for the said incident, surprisingly without ascribing specific role to any of them. Such identification parade was held on 01.02.2021, by Mr. Shafaqat Hussain, the Magistrate having jurisdiction. On asking, the complainant was fair enough to state that the appellants were Baloch. It is contrary to narration made by her in her report u/s 154 Cr.P.C that the culprits were of Sindhi origin. It was stated by Mr. Shafqat Hussain, the dummies were arranged by his staff, contrary to him, it was stated by I.O/SIP Sajjad Ali that the dummies were arranged by him. Such inconsistency between their evidence could not be overlooked. As per Female Medical Officer Dr. Samiya Sehar, on DNA report the appellants were not found contributors to sperm friction taken from the vaginal swabs of the complainant. If such DNA report is taken into consideration, then it falsifies the complainant that she was subjected to rape by the appellants. None else including father-in-law, mother-in-law, brother-in-law and nephew of the complainant has been examined by the prosecution for no obvious reason though they as per the complainant were available with her at the time of incident. The inference which could be drawn of their non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that they were not going to support the case of the prosecution. I.O/SIP Sajjad Ali was fair enough to admit that ownership of the house where the alleged incident has taken place has not been ascertained by him; no robbed property has been secured from the appellants and no statement of any independent person from neighbourhood has been recorded by him and the appellants have already been acquitted in recovery of unlicensed pistols from them by the Courts having jurisdiction. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are found entitled.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the Hon’ble Apex court that;

“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

8. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgments are set aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court and they shall be released forthwith, if not required to be detained in any other custody case.

9. The instant appeals are disposed of accordingly.

JUDGE