IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 325 of 2021

Appellant: Haq Nawaz through Mr. Ahmed Nawaz advocate

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

Date of hearing: 31.08.2022

Date of judgment: 31.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with baby Dua a girl as per medical opinion aged about 11 years, for that he was booked and reported upon. After due trial, he was convicted for an offence punishable under Section 376(1) PPC and sentenced to undergo rigorous imprisonment for 14 years with fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned VII-Additional Sessions Judge/ Gender Based Violence Court, Karachi East vide judgment dated 01.06.2021, 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 appellant being innocent has been involved in this case falsely by the complainant party at the instance of his landlord in order to satisfy his tenancy dispute with him; the FIR of the incident has been lodged with delay of about 01 day; DNA report is not implicating the appellant in commission of incident and evidence which the prosecution has produced is believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

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 appellant beyond of shadow by bringing on record reliable evidence.

4. Heard arguments and perused record.

5. Complainant Muhammad Asghar and P.W Mst. Sughran Bibi who happened to be uncle and mother of the victim/PW baby Dua have not actually seen the incident with their own eyes. Whatever is stated by them is based on narration made to them by victim/PW baby Dua, therefore, their evidence being hearsay in nature could hardly be relied upon. The delay in lodgment of FIR by the complainant even by one day, if is examined in that context then it could not be ignored. Indeed it is reflecting consultation and deliberation. PW/victim baby Dua, on medical examination as per Medical officer Dr. Zakiya Khursheed was not found virgo intacta. No doubt she has implicated the appellant in commission of incident by stating that the appellant took him to have a juice and then committed the alleged incident with her. However, it was not disclosed by her that as to when, where and at what time the appellant actually committed the alleged incident with her, such omission has put cloud on her evidence. As per DNA report the blood samples of the appellant were not found matched with vaginal swabs and clothes of the victim, such expert opinion could not be ignored, it has obviously absolved the appellant from the charge. It was stated by SIO/ SIP Ghulam Hussain that appellant and complainant party were residing one and same house and it was stated by the witnesses in their statements that they were having suspicious that the offence has taken place. If it was so then this also suggests innocence of the appellant. In these circumstances, it could be concluded safely that the involvement of the appellant in commission of incident is appearing to be doubtful.

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 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 above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court, he is in custody and to be released forthwith, if not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE

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