IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No.114 of 2022

Appellant: Khalil Ahmed through Syed Jawed Hyder Rizvi advocate

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

Date of hearing: 13.12.2022

Date of judgment: 13.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with Mst. Aqsa, a young girl aged about 15/16 years, for that he was booked and reported upon. On conclusion of trial, he was convicted u/s 376 PPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.200,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned Xth-Additional Sessions Judge, Karachi West, vide judgment dated 29.01.2022, which is impugned by the appellant before this court by way of 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; FIR has been lodged with delay of about 03 days; there is no DNA report and evidence of the P.Ws being inconsistent and doubtful has been believed by learned trial Court without assigning cogent reasons, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Javed Iqbal and another vs. The State (2018 SCMR 1380).

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

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged with delay of about 03 days; it was stated by complainant Muhammad Zahid that he lodged FIR of the incident when his demands were met. If it was so, then delay in lodgment of the FIR by 03 days could not be overlooked. The complainant and P.W Muhammad Nauman are not eye witnesses to the actual incident; therefore, their evidence hardly lends support to the case of prosecution. It was stated by P.W Mst. Aqsa that on the date of incident, when she was in her house, there came the appellant, who assaulted her physically and then subjected her to rape. As per P.W Dr. Afshan Nazlin no mark of violence was found on person of P.W/victim Mst. Aqsa. By stating so, she belied P.W/victim Mst. Aqsa in her version that she was assaulted before subjecting her to rape allegedly by the appellant. It was further stated by P.W Dr. Afshan Nazlin that hymen of P.W/victim Mst. Aqsa was found old torn and healed with no fresh tear on her vulva and vagina. If such piece of evidence of P.W Dr. Afshan Nazlin is taken into consideration then it prima facie suggests that P.W/victim Mst. Aqsa was not subjected to rape in recent past of the incident. There is no DNA report. It was stated by I.O/ASI Abdul Jabbar that the complainant came at P.S Kaleri with the appellant and P.W/victim Mst. Aqsa and lodged report of the incident. P.W/mashir Muhammad Nauman came with a different version; as per him the appellant was arrested by the police from godown. Such inconsistency with regard to the arrest of the appellant could not be ignored. On asking, I.O/Inspector Anwar Hussain was fair enough to admit that it was stated by P.W/victim Mst. Aqsa before him in her 161 Cr.P.C statement that the appellant has attempted to commit rape with her, which she resisted and did not allow him to commit rape with her. If it is believed to be so, then it absolves the appellant from allegation of rape. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

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