IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 410 of 2021

Appellants: Hamza, Faizan @ Tooti, Muhammad Haroon through M/s Shab Alam and Ayaz Ali advocates

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 appellants with rest of the culprits in furtherance of their common intention, abducted complainant/victim Mst. Batool Naqvi and then subjected her to rape one after other, for that the present case was registered. The appellants denied the charge and the prosecution to prove it, examined the complainant/victim and her witnesses and then closed its side. The appellants in their statements recorded u/s 342 Cr.P.C, denied the prosecution’s allegations by pleading innocence, they examined none in their defence or themselves on oath. On conclusion of trial, they were convicted under Section 365-B PPC and sentenced to undergo life imprisonment and to pay fine of Rs.50,000/- each and in default whereof to undergo simple imprisonment for 06 months, they were further convicted under Section 376(II)/34 PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- each 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 appellants before this Court by preferring the instant jail appeal.

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 party, the FIR has been lodged with delay of about 01 day, DNA report is defective and evidence of the P.Ws has not been appraised properly by learned trial Court. By contending so, they sought for acquittal of the appellants by extending them benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant/victim. However, learned D.P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. So far case of appellant Haroon is concerned, it is distinguishable to others his name is not appearing in the FIR; he was not identified by the complainant/victim during course of identification parade, DNA report is not implicating him in commission of incident and the complainant/victim during course of her examination was fair enough to admit that she has taken his name being friend of Hamza. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of appellant Haroon in commission of the incident beyond shadow of doubt, consequently, he is acquitted of the offence for 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.

6. So far case of appellants Hamza and Faizan alias Toti is concerned; it is distinguishable to that of appellant Haroon. It was stated by the complainant/victim that appellant Hamza was friend of his brother Qasim accordingly, she came into contact with him; he also shown his liking for her, subsequently; she discontinued her friendship with him at the instance of her brother. On 07.12.2018, she went by rickshaw to collect a computer certificate from the institute, she was followed by appellant Hamza, the institute was found closed, therefore, she decided to go back to her home there she was intercepted by appellants Hamza and Faizan alias Toti; appellant Hamza asked her to sit with them on motorcycle, which she refused, on that she was threatened, some people attracted to them, they were told by appellant Hamza that she was her fiancé and has run away from home, on that, those people advised her to accompany appellant Hamza, then appellants Hamza and Faizan alias Toti made her to sit on their motorcycle, which they stopped near ‘pan cabin’ adjacent to Rizwan park, three persons were already found available there, who were asked by appellant Hamza to hire rickshaw, the appellant Hamza told her that he is going to drop her at her home, then appellants Hamza and Faizan alias Toti sat with her in rickshaw, while three of their friends followed them on their motorcycles, then she was taken at residence of appellant Faizan alias Toti. If it was so, then it was an act of abduction at least on the part of appellants Hamza and Faizan alias Toti, which they performed by keeping the complainant/victim under deception to drop her at her home. It was further stated by the complainant/victim that at house of Faizan alias Toti she became nervous and was sweetening, on that appellant Hamza offered a glass of water, which she took thereby she became semi-unconscious, thereafter, appellant Hamza removed his clothes and then made her naked and then raped her, then she was raped by his friends, she made her escape good from their house, hired a rickshaw, then went to her house, she narrated the incident to her parents and then lodged report of the incident with police. Such report of course is lodged with delay of about 01 day but it is well explained by the complainant/victim by stating that she first went at PS Gulberg there was advised to approach PS Rizvia Society for the purpose, which she did. The delay in lodgment of the FIR even otherwise, in case like the present one could hardly be treated to be fatal. As per Female Medical Officer Dr. Sumiya Sehar, the complainant was not found virgo intacta and on DNA report the appellants Hamza and Faizan alias Toti were found contributor of semen sperm friction identified on clothes of the complainant/victim. The identification parade was conducted by Mr. Adeel Hayat Sandhu, the Magistrate having jurisdiction, during course whereof the complainant/victim identified appellants Hamza and Faizan alias Toti to be persons responsible for the alleged incident. Whatever is stated by the complainant/victim takes support from ancillary evidence at least to the extent of appellant Hamza and Faizan alias Toti. In that situation, it would be hard to conclude that appellants Hamza and Faizan alias Toti being innocent have been involved in this case falsely by the police at the instance of complainant/victim. There hardly appears to be inconsistency with regard to colour of cloth recovered and sent for DNA test. If for the sake of arguments, it is believed to be so, even then such inconsistency being immaterial and irrelevant is of no help at the least to the case of appellants Hamza and Faizan alias Toti. In these circumstances, it would be safe to conclude that the prosecution has been able to prove its case against appellants Hamza and Faizan alias Toti beyond shadow of doubt.

7. In the case of Atif Zareef and others vs. The State (PLD 2021 S.C 550), it has been held by Honourable Apex court that;

“……The involvement of Sher Baz Khan alias Sheru and Atif Zareef in commission of this offence is corroborated by the DNA test report (Ex-PS), which is considered, due to its scientific accuracy and conclusiveness, as a gold standard to establish the identity of an accused and a very strong corroborative piece of evidence. The prosecution has thus proved its case against the appellants, Sher Baz Khan alias Sheru and Atif Zareef beyond reasonable doubt……”

8. In view of above, it is concluded that the conviction/ sentence awarded to appellants and Hamza and Faizan alias Toti is based on sound reasons, which is not calling for any interference by this Court.

9. The instant jail appeal is disposed of accordingly.

JUDGE