IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 116 of 2022

Appellant: Kamran Bahadur through Mr. Shujaat Ali Khan advocate

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

Date of hearing: 21.12.2022

Date of judgment: 21.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant has attempted to commit rape with Mst. Ishrat Begum, a young girl aged about 12 years by putting of her clothes, after making trespass in her house, for that he was booked and reported upon. After due trial, he was convicted under Section 452 PPC and sentenced to undergo rigorous imprisonment for 03 years and fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months; he was further convicted under Section 376/ 511 PPC and sentenced to undergo rigorous imprisonment for 05 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 06 months; both the sentences were ordered to run concurrently, by learned Xth-Additional Sessions Judge, Karachi West, vide judgment dated 16.02.2022, which is impugned by the appellant before this Court by preferring the instant appeal.

2. At the very outset, it is stated by the learned counsel for the appellant that he would not press the disposal of his appeal on merits, provided the sentence awarded to him is reduced to one which he has already undergone, by modifying the penal section, which is not opposed by learned DPG for the State.

3. Heard arguments and perused the record.

4. The FIR of the incident has been lodged with delay of about 02 days. Complainant Mst. Nusrat Begum is not eye witness to the incident. Only evidence with the prosecution, which prima facie, implicates the appellant in commission of the incident is that of P.W/victim Mst. Ishrat Begum. It was stated by her that the appellant by committing trespass in her house, by pushing her down, attempted to remove her shalwar and on her cries ran away. If for the sake of arguments, her evidence is believed to be true, even then it constitutes an offence punishable under section 451 and 354 PPC.

5. In case of Muhammad Sharif vs. The State (1986 P.Cr.L.J 2496), it has been held by the Honourable Federal Shariat Court that;

“……..from the record as demonstrated above the appellant was at the most trying to make Mst. Parveen naked by unfastening the Shalwar. He did not succeed in the attempt of removal of the Shalwar and did not take away his own Shalwar. The Shalwar of Mst. Parveen was not even torn (it has not been even alleged). In these circumstances it cannot be held that the appellant had been guilty of the offence under section 11 or 10 (3) A read with section 18 of the Ordinance and in our opinion has been guilty of offence under section 354, P.P.C. and can be convicted and sentenced under that section. We accordingly allow this appeal, set aside the conviction and sentences under section 11 and 10 (3) read with section 18 of the Ordinance and convert the conviction to one under section 354, P.P.C. and sentence him to the sentence, already undergone by him…..”

6. In view of above, the punishment to the appellant u/s 452 and 376/ 511 PPC is misplaced, thus, it is modified with one under Section 451 and 354 PPC, consequently, he is convicted under Section 451 PPC and sentenced to undergo rigorous imprisonment for 06 months and to pay fine of Rs.5000/- and in default whereof to undergo simple imprisonment for 01 month; he is further convicted under Section 354 PPC and sentenced to undergo rigorous imprisonment for 06 months and to pay fine of Rs.5000/- and in default whereof to undergo simple imprisonment for 01 month, both the sentences to run concurrently with benefit of Section 382-B Cr.P.C, which sentence as per jail roll, he has already undergone before his formal release on bail. He is present in Court on bail, his bail bond is cancelled and surety is discharged.

7. Subject to above modification, the instant criminal appeal is dismissed.

JUDGE