IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 220 of 2020

Appellants: Khuda Bux and Abdul Khaliq through M/s Riaz Hussain Bhatti and Moazzam Hussain advocates

Respondent: The State through Mr. Khadim Hussian, Additional 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 the case of the prosecution that the appellants with one more culprit abducted P.W/victim Mst. Rimsha, a young girl aged about 16 years and then subjected her to rape, for that they were booked and reported upon. On conclusion of trial, co-accused Zamir Hussain was acquitted, while the appellants were convicted u/s 365-B 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; appellant Khuda Bux was further convicted u/s 376 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 for 06 months; all the sentences were directed to run concurrently with benefit of Section 382(b) Cr.P.C by learned V-Additional Sessions Judge Malir Karachi, vide judgment dated 11.02.2020, which is impugned by the appellants before this Court by preferring the instant 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 complainant party and on same evidence co-accused Zamir Hussain has already been acquitted by learned trial Court. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt. In support of their contentions, they relied upon cases of Javed Iqbal and another vs. The State (2018 SCMR 1380) and Muhammad Siddique vs. The State and others (2019 SCMR 1048).

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.P.G 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 appellants beyond shadow of doubt and their case is distinguishable to that of the acquitted accused.

4. Heard arguments and perused the record.

5. It was stated by complainant Muhammad Saleem that on 01.07.2018, when he was available at his tailoring shop, there came his son Sheeraz, who intimated him that his sister P.W/victim Mst. Rimsha is not available at house. On such intimation, he went at his house there he was intimated by his wife that after dropping her son Sheeraz at Tuition Centre, when she came back to her house, found P.W/victim Mst. Rimsha to have gone missing. On such intimation, he lodged report of the incident on 02.07.2018 with P.S Malir City. It was lodged with delay of about 01 day. No plausible explanation to such delay is offered. It was further stated by the complainant that on 14.07.2018, he was asked by police official to reach at Malook Hotel, on such information, he went there and found his daughter P.W/victim Mst. Rimsha and appellant Khuda Bux available, they were taken into custody by I.O/ASI Danish Hyder, under memo, which was signed by him and P.W/co-mashir Muhammad Yar. The complainant in that respect is belied by P.W Muhammad Yar, as per him no accused was apprehended by the police in his presence. The wife and son of the complainant who actually intimated him about the incident have not been made witnesses to the case; such omission on part of police could not be overlooked. It was stated by P.W/victim Mst. Rimsha that on the date of incident when she went out of her house to purchase medicine one person came to him, put intoxicant handkerchief on her mouth and then she was taken by him to his house, there she was subjected to rape, that person was specifically named by her to be appellant Khuda Bux. By stating so, she also named appellant Abdul Khaliq and co-accused Zameer to be available at the place of incident. It was stated by I.O/ASI Danish Hyder that on arrest the appellants admitted their guilt before him. If for the sake of arguments it is believed that such admission was actually made by the appellants before him, even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against them. None has been examined by the I.O/ASI Danish Hyder to prove the abduction of the P.W/victim Mst. Rimsha from the place of incident, which as per him was busy spot. On examination, as per Female Medical Officer Dr. Noor-un-Nisa, P.W/victim Mst. Rimsha was not found virgo intacta. On asking she was fair enough to admit that as per documents produced by her before the Court no rape has been committed upon abductee P.W/victim Mst. Rimsha. By stating so, she belied P.W/victim Mst. Rimsha in her version that she was subjected to rape in present case. It was also admitted by P.W/victim Mst. Rimsha that another FIR Crime No.174/2015 u/s 376 PPC was lodged by her with P.S Naushera District Bhawalpur, it was also confirmed by the complainant and I.O/ASI Danish Hyder. In that context, it is contended by learned counsel for the appellants that the complainant party is in habit to lodge false FIRs against innocent persons to extort money from them. No DNA report is produced. The place where the P.W/victim Mst. Rimsha was allegedly subjected to rape was not visited by the police. On asking I.O/ASI Danish Hyder was fair enough to admit that CDR report did not prove the presence of the appellants at the place of incident. The rickshaw whereby P.W/victim Mst. Rimsha was being shifted though was secured by I.O/ASI Danish Hyder was not produced at trial, its non-production could not be ignored. On the basis of same evidence co-accused Zameer Hussain has been acquitted by learned trial Court. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants too beyond shadow of doubt and to such benefit they are also 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 case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

8. 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".

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they shall be released forthwith, if not required to be detained in any other custody case.

10. The instant appeal is disposed of accordingly.

JUDGE