THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 625 of 2019

Appellant: Lal Baksh through Mr. Muhammad Riaz advocate

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

Date of hearing: 16.09.2022

Date of judgment: 16.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and absconding accused Dawood in furtherance of their common intention committed carnal intercourse with PW/victim Huzaifa, for that he was booked and reported upon by the police. On conclusion of the trial, the appellant was convicted for an offence punishable under Section 377 PPC and was sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.200,000/- payable to the PW/victim Huzaifa as compensation, with benefit of section 382-B Cr.P.C, by learned Xth Additional Sessions Judge, Karachi West vide judgment dated 17.09.2019, 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 the appellant being innocent has been convicted and sentenced on the basis of misappraisal of evidence. By contending so, he sought for his acquittal by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. FIR of the incident has been lodged with delay of about 01 day, such delay having not been explained plausibly could not be overlooked. Complainant Abdul Ghafoor is not an eye witness of the incident, therefore, his evidence hardly lends support to the case of prosecution. It was stated by PW/Victim Huzaifa that the appellant and co-accused Dawood have subjected him to carnal intercourse, one after other. His evidence is not taking support from final medical certificate or DNA report, those are brought on record by the prosecution through Dr. Noor Ahmed As per final medical certificate, no positive finding about act of sodomy was found. As per DNA report blood samples of the appellant were not found matched with anal swabs samples and clothes of PW/victim Huzaifa. All the memos as per the complainant and PW/victim Huzaifa were prepared by police officers at police station. If it was so, then it was table investigation on the part of I.Os ASI Amir Shahzad and ASI Ghulam Muhammad. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

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

9. Above of the reasons of short order dated 16.09.2022, whereby the instant appeal was allowed

JUDGE