IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 649 of 2021

Appellant: Shabir Ahmed through Mr. Abrar Hussain Chandio advocate

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

Date of hearing: 25.11.2022

Date of judgment: 25.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant subjected complainant Mst. Sadia Noorin to rape, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 376 PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.100,000/- in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C by learned III-Additional Sessions Judge, Karachi South vide judgment dated 28.10.2021, which is impugned by the appellant 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 in order to satisfy its matrimonial dispute with him; the FIR of the incident has been lodged with delay of about 04 days; DNA report is negative and evidence of P.Ws being doubtful in its character has been believed by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

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 the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by the complainant that the appellant is nephew of her husband Qari Muhammad Siddique and was residing with them; on 25.08.2016, when she was alone in her house, there came the appellant, who by pointing knife took off her clothes and then subjected her to rape with the threat to be killed, if the incident is reported to anyone and then kept on sending text messages to her; she intimated the incident to her husband and then on 29.08.2016 she lodged report of the incident with police, it was with delay of about four days to the incident. No plausible explanation to such delay is offered which obviously, reflects deliberation and consultation. On investigation, the complainant was referred to hospital for medical examination. As per Female Medical Officer, Dr. Sumiya Syed, no mark of violence was found on the body of the complainant and blood sample of the appellant on DNA examination was not found matched with vaginal semen swabs of the complainant. The DNA report, prima facie, falsifies the complainant in her version that she was subjected to rape by the appellant. Evidence of P.W Qari Muhammad Siddique is mainly to the extent that he was intimated about the incident by the complainant and the appellant was found sending text messages to her. It was stated by I.O/SIP Sultan Ahmed that on investigation, he produced the complainant before the Magistrate for recording her 164 Cr.P.C, it was recorded accordingly. When asked, it was stated by the complainant that her 164 Cr.P.C was not recorded. Such denial on the part of the complainant could not be overlooked. It was further stated by the said I.O/SIP he apprehended the appellant from Multan and after usual investigation submitted the challan of the case before the Court having jurisdiction. If evidence of the said I.O/SIP is believed to be true, even then it is not enough to improve the case of prosecution to maintain conviction. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

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 the 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 appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE