IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 279 of 2021

Appellant: Muhammad Qasim through Syed Muhammad Ishrat Ghazali advocate

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

Date of hearing: 28.11.2022

Date of judgment: 28.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with one more culprit attempted to abduct baby Sonia, a girl aged about 08 years, for that the present case was registered. After conclusion of trial, co-accused Hashim was acquitted while the appellant was convicted under Section 364-A PPC and sentenced to undergo rigorous imprisonment for 07 years with benefit of section 382(b) Cr.P.C by learned II-Additional Sessions Judge, Karachi West, vide judgment dated 18.03.2021, 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 police at the instance of the complainant party, no abduction has taken place, co-accused Hashim has already been acquitted while the appellant has been convicted on the basis of same evidence. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt who as per him even otherwise is at the verge of completion of his jail term.

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 of dismissal of instant appeal by contending that the offence which the appellant has allegedly committed is affecting the society at large and name of co-accused Hashim was disclosed by the appellant, therefore, his case was distinguishable to that of the appellant.

4. Heard arguments and perused the record.

5. It was stated by complainant Zafar Iqbal and P.W Bashir Ahmed that on the date of incident, they after attending the work were going back to their house, when reached at the police of incident, they found the appellant in burka holding baby Sonia by her hand, on inquiry, they were intimated by baby Sonia that when she and Irfa after purchasing meat were crossing the road, she was hold by her hand by the appellant and his associate. It was further stated by them that in the meanwhile, police party of PS Peerabad on patrolling led by ASI Sikandar Ali came at the place of incident, they apprehended the appellant while his associate made his escape good and incident then was reported to police formally. Their evidence takes support from evidence of P.W Sonia. Despite cross-examination, the complainant and his witnesses have stood by their version, on all material points; they indeed were having no reason to have involved the appellant in this case falsely. As per I.O/SIP on arrest from the appellant has also been secured the burka which he was having at the time of incident. In these circumstances, it would be safe to conclude that the prosecution has been able to prove its case against the appellant only to the extent of making an attempt to abduct Baby Sonia.

6. In case of Muhammad Raheel @ Shafique v. State (PLD 2015 SC-145), it has been held by Hon’ble Court that:

“5. thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in unofalsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant”.

7. Nothing has been brought on record which may suggest as to what was the intention with the appellant to make an attempt to abduct Baby Sonia, therefore the conviction of the appellant under Section 364-A PPC is appearing to be misplaced, as such it is modified with section 363 PPC read with Section 511 PPC, consequently, the appellant is convicted for the said offence and sentenced to rigorous imprisonment for 04 years with fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C.

8. Subject to above modification, the instant appeal fails and is dismissed accordingly.

JUDGE