IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 36 of 2022

Appellant: Riaz Ahmed produced in custody

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

Date of hearing: 06.09.2022

Date of judgment: 06.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant attempted to commit rape with baby Hiba, a girl aged about 12/13 years, by touching her private parts, 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 05 years with fine of Rs.25,000/- and in default whereof to undergo simple imprisonment for 03 months, with benefit of Section 382-B Cr.PC, by learned II-Additional Sessions Judge, Karachi Central, vide judgment dated 14.12.2021, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. At the very outset, it is stated by 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, which is not opposed by learned DPG for the State.

3. Heard arguments and perused the record.

4. Complainant Muhammad Mateen is not eye witness of incident, therefore his evidence hardly lends support to the case of prosecution. P.W/victim baby Hiba has implicated the appellant in commission of incident by stating that he touched her private parts and she in that respect is supported by her sister P.W Laiba. If their evidence is believed to be true then it constitutes an offence of outraging modesty of P.W/victim baby Hiba, 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 punishment awarded to the appellant for an offence under Section 376 read with Section 511 PPC is converted to one under Section 354 PPC consequently, he is convicted 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 03 months with benefit of Section 382-B Cr.P.C.

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

JUDGE