IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 32 of 2022
Appellant: Qurban Ali through Mr. Dur
Muhammad Mallah advocate
The State: Through
Mr. Hussain Bukhsh Baloch, Additional Prosecutor
General Sindh
Date of hearing: 02.09.2022
Date of judgment: 02.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J- It is alleged that the appellant
attempted to commit rape with baby Sanam, a girl aged
about 12 years, by removing her Shalwar, for that
he was booked and reported upon. After due trial, he was convicted for an
offence punishable under section 376 r/w Section 511 PPC and was sentenced to
undergo rigorous imprisonment for 03 years with fine of Rs.20,000/-
and in default whereof to undergo simple imprisonment for 06 months, with
benefit of Section 382-B Cr.PC, by learned Xth-Additional
Sessions Judge, Karachi East, vide judgment dated 17.12.2021, which is impugned
by the appellant before this Court by preferring the instant appeal.
2. At the very outset, it is contended by
learned counsel for the appellant that he would not press disposal of instant
appeal on merits, provided the sentence awarded to the appellant is reduced to one
which he has already undergone, which is not opposed by learned Additional P.G
for the State.
3. Heard arguments and perused the record.
4. Admittedly, no rape has taken place and
same as per medical officer Dr. Afshan Nazli was not even a case to involve an attempt to commit
rape with victim baby Sanam. In that situation, if
evidence of complainant Mst. Zareena and her
witnesses is believed to be true, then it constitutes an offence an offence of
outraging modesty of P.W/victim baby Sanam, which is
punishable under section 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 appellant is
convicted under Section 354 PPC and sentenced to undergo rigorous imprisonment
for 02 years and to pay fine of Rs.20,000/- and in default whereof to undergo
simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C.
7. Subject to above modification, the instant
criminal appeal is dismissed.
JUDGE