IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Jail Appeal No. 411 of 2021
Appellant: Jahanzaib
Azam through Syed Imran Mehdi advocate
The State: Mr. Faheem
Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 24.11.2022
Date of judgment: 05.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of
the culprits in furtherance of their common intention, abducted
complainant/victim Mst. Batool Naqvi and then subjected her to rape, for that
the present case was registered. The appellant being juvenile was charged
separately which he denied and prosecution to prove it examined the complainant
and her witnesses and then closed its side. The appellant in his statement
recorded u/s 342 Cr.P.C denied the prosecution’s allegations by pleading his
innocence. On conclusion of trial, the appellant was convicted under Section 365-B
PPC and sentenced to undergo life imprisonment and to pay fine of Rs.50,000/- and
in default whereof to undergo simple imprisonment for 06 months, he was further
convicted under Section 376(II)/34 PPC and sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.50,000/- and in default whereof to
undergo simple imprisonment for 06 months; all the sentences were directed to
run concurrently with benefit of section 382(b) Cr.P.C by learned II-Additional
Sessions Judge, Karachi Central, vide judgment dated 14.07.2021, which is
impugned by the appellant before this Court by preferring the instant jail 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, the FIR has been lodged with delay of about 01 day, DNA report
is not implicating the appellant in commission of incident and evidence of the
P.Ws has been mis-appraised by learned trial Court so far the case of the
appellant is concerned. 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 instant appeal by
contending that the appellant has been identified by the complainant during
course of identification parade.
4. Heard arguments and perused the record.
5. Name and description of the appellant are
not disclosed by the complainant in her FIR. DNA report is not implicating the
appellant in commission of incident and the complainant during course of her
examination on asking was fair enough to admit that the appellant has not
played any role in whole episode, therefore, it would be hard to hold the
appellant guilty of the said offence on the basis of sole identification
parade. Indeed the involvement of the appellant in commission of incident is
appearing to be doubtful.
6. 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".
7. In
view of the facts and reasons discussed above, the conviction and sentence
awarded to the appellant 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.
8. The
instant jail appeal is disposed of accordingly.
JUDGE