IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 376 of 2022

Appellant: Roohullah through M/s Abdul Haseeb Tak and Osama Ali Tak advocates

The State: Mr. Abrar Ali Khichi, Additional Prosecutor General Sindh

Date of hearing: 19.12.2022

Date of judgment: 19.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with complainant/victim Mst. Asma, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 376(1) PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment of 03 months with benefit of section 382(b) Cr.P.C by learned III-Additional Sessions Judge, Karachi South vide judgment dated 30.04.2022, 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 extort money from him; the FIR of the incident has been lodged with unexplained delay of about 10 days 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 Addl. P.G for the state by contending that the appellant has been involved fully in commission of incident by complainant/victim Mst. Asma.

3. Heard arguments and perused the record.

4. The FIR of the incident has been lodged with delay of about 10 days; such delay having not been explained plausibly by the complainant/victim Mst. Asma could not be ignored; it is reflecting consultation and deliberation. PW- Muhammad Shabir is not eye witness of the incident. His evidence is of no help to the case of prosecution. Evidence of the I.O/ SIP Umar Hayat is only to the extent that he recorded FIR of the present case and referred complainant/victim Mst. Asma to Jinnah Hospital for her examination. Complainant /victim Mst. Asma of course has attempted to implicate the appellant in commission of incident by stating that he has subjected her to rape by force. On medical examination as per PW-Dr. Zakia Khursheed no mark of violence was found on person of complainant /victim Mst. Asma, which belies her that she was subjected to rape after applying force. On asking, it was stated by I.O/SIP Abdul Ghaffar that as per Final Medical Certificate, complainant/victim Mst. Asma was not found to have subjected to rape and as per DNA report the appellant is not the contributor to sperm friction/ vaginal semen swabs of complainant/victim Mst. Asma. By stating so, he belied the complainant/PW victim Mst. Asma in her version that she has been subjected to rape by the appellant. 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 case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

6. 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".

7. 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.

8. The instant appeal is disposed of accordingly.

JUDGE