IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 386 of 2022

Appellant: Zain through Mr. Muhammad Hanif Noonari advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 22.12.2022

Date of judgment: 22.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with baby Mariam, a girl aged about 04 years, 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.10,000/- and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C by learned III-Additional Sessions Judge, Karachi South vide judgment dated 07.04.2022, which is impugned by the appellant by preferring the instant appeal from jail.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of the complainant party, there is no eye witness to the incident and evidence of the P.Ws has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. Learned Addl. P.G for the state has sought for dismissal of the appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt, which even otherwise, is supported by judicial confession of the appellant.

4. Heard arguments and perused the record.

5. The material evidence with the prosecution was that of P.W Baby Mariam being victim of the incident and I.O/SIP Muhammad Afzal, who conducted initial investigation of the case; both of them have not been examined by the prosecution, for the reason that one is under trauma while other has retired from service; such may not be a valid reason for their non-examination which has prejudiced not only the appellant but the State in its defence and is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes right of fair trial to everyone.

6. In view of above, the impugned judgment is set aside with direction to learned trial Court to call and examine P.Ws victim Baby Mariam and I.O/SIP Muhammad Afzal and then to proceed with the case further and make its disposal in accordance with law within three months after receipt of copy of this judgment.

7. The instant jail appeal is disposed of accordingly.

JUDGE