IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 227 of 2022

Appellant: Iftikhar Ahmed @ Babu through Mr. Farrukh Sharif advocate

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

Date of hearing: 09.12.2022

Date of judgment: 09.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant had been committing rape with Mst. Fiza, a young girl aged about 15 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.200,000/- and in default whereof to undergo simple imprisonment of 06 months with benefit of section 382(b) Cr.P.C by learned Xth-Additional Sessions Judge, Karachi West vide judgment dated 07.02.2022, 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 party only to satisfy with him its dispute over the property and DNA report is not implicating the appellant in commission of incident. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt, which is opposed by learned DPG for the state by contending that the appellant has been involved in commission of incident by P.W/victim Mst. Fiza.

3. Heard arguments and perused the record.

4. No actual date of the incident is disclosed. It is stated by complainant Sirajuddin that on 05.11.2019, when he was busy in his work, he was intimated by his daughter on cell phone that P.W/victim Mst. Fiza has taken some intoxicant substance and is admitted at Abbasi Shaheed Hospital; on such information, he went there and met with P.W/victim Mst. Fiza, who disclosed to him that she is being subjected to rape by the appellant from time to time since six months and on account of refusal by her parents to take any action against him, she has taken poisonous substance. Nothing has been brought on record in shape of documents, which may suggest that poisonous substance was actually taken by P.W/victim Mst. Fiza. Obviously, the complainant is not an eye witness to the alleged incident; therefore, his evidence hardly lends support to the case of prosecution. P.W/victim Mst. Fiza has implicated the appellant in commission of the incident by stating that he has been committing rape with her since six months. Be that as it may the unexplained delay in reporting the incident and/or alleged highhandedness on the part of the appellant to police could not be overlooked. As per Medical Officer Dr. Samia Sehar P.W/victim Mst. Fiza was not found virgo intacta, her vaginal swabs were taken and sent for DNA analysis. On asking it was admitted by her that the DNA report is negative. If DNA report is taken into consideration, it absolves the appellant from the liability of the allegation of rape, which is made against him by P.W/victim Mst. Fiza. The parties are said to be disputed over property. Perhaps in that context, it was contended by learned counsel for the appellant that the appellant has been involved in commission of incident by the complainant party to settle with him such dispute. In these circumstances, it would be safe to conclude that the prosecution has not able to prove the involvement of the appellant in commission of incident beyond reasonable shadow of doubt.

5. 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".

6. 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.

7. The instant appeal is disposed of accordingly.

JUDGE