IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 247 of 2021

Appellant: Sajjad Khan through Mr. Mamoon A.K Shirwany advocate

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

Date of hearing: 08.12.2022

Date of judgment: 08.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with baby Sehrish, a girl aged about 11 years, said to be his step-daughter, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 376(i) 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 VII-Additional Sessions Judge/ Gender Based Violence Court, Karachi East vide judgment dated 06.04.2021, 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 Mst. Naseem only to force him to divorce her otherwise he has nothing to do with the alleged incident. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. None has appeared 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 instant appeal by contending that the prosecution has been able to prove its case against him beyond shadow of doubt.

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged with delay of about 01 day; 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 Sehrish apparently has implicated the appellant in commission of incident and she on medical examination conducted by P.W Dr. Aiman Khursheed was not found to be virgo intacta. However, as per DNA report, the blood samples of the appellant were not found matched with the DNA profile/semen stained /sperm frictions found in vaginal swabs of P.W/victim Baby Sehrish. If DNA report is taken into consideration, then it absolves the appellant of the allegation of rape with P.W/victim Baby Sehrish. In that context, the contention of learned counsel for the appellant that he has been involved in the commission of the incident by the complainant on account of his refusal to divorce her could not lost sight of. Evidence of I.O/SIP Muhammad Shiraz is only to the investigation which he conducted in present case same is not enough to improve the case of prosecution. In these circumstance, it would be safe to conclude that the prosecution has not able to prove the involvement of the appellant in commission of the offence beyond reasonable 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