IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 98 of 2022

Appellant: Nadir Hussain Qureshi through Mr. Khuda Dino Sangi advocate

The State: Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh

Date of hearing: 30.11.2022

Date of judgment: 30.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with baby Kainat, a girl aged about 7 years, 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.50,000/- and in default whereof to undergo simple imprisonment of 03 months with benefit of section 382(b) Cr.P.C by learned II-Additional Sessions Judge, Karachi South vide judgment dated 22.01.2022, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

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 complainant Mst. Sonia; the FIR of the incident has been lodged with delay of about 03 days; DNA report is not implicating the appellant in commission of incident and evidence of P.Ws being doubtful in its character has been believed by the learned trial Court without assigning cogent reasons, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3. None has appeared to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal instant appeal by contending that he has committed the offence which is affecting the society at large.

4. Heard arguments and perused the record.

5. Admittedly, the FIR has been lodged with delay of about 03 days; such delay having not been explained plausibly could not be overlooked, it obviously is reflecting consultation and deliberation. The complainant is not an eye witness of the incident; therefore, her evidence hardly lends support to the case of prosecution. P.W/victim Baby Kainat apparently has implicated the appellant in commission of incident and she on medical examination conducted by P.W Dr. Zakiya Khursheed was not found to be virgo intacta. However, as per DNA report, the appellant was not found to be contributor of male DNA sperm frictions found in her vaginal swabs sample. If DNA report is taken into consideration, then it absolves the appellant of the allegation of rape with P.W/victim Baby Kainat. I.O/SIP Tanveer, who has conducted much of the investigation of the present case has not been examined by the prosecution, for the reason that he has retired from service. The retirement of an employee could hardly be a reason for his non-examination. In that way the appellant has been prejudiced in his defence seriously. In that situation, the plea of innocent taken by the appellant at trial could not be lost sight of.

6. The conclusion, which could be drawn of above discussion would be that the prosecution has not been able to prove the involvement of the appellant in commission of incident beyond shadow of doubt.

7. 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…...”.

8. 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".

9. 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.

10. The instant jail appeal is disposed of accordingly.

JUDGE