IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 376 of 2016

Criminal Jail Appeal No. 177 of 2012

Criminal Jail Appeal No. 178 of 2012

  

                                                       

Appellants:                   Miss Saima through Mr. Fareed Ahmed Dayo advocate

 

Astakhar, Imtiaz, Ghulam Mustafa and Shoukat Ali through Mr. Mehmood A. Qureshi advocate

 

The State:                      Through Ms. Rubina Qadir, Deputy Prosecutor General Sindh

 

Date of hearing:           13.10.2022

 

Date of judgment:        20.10.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is the case of the prosecution that Mst. Asma, a young girl of 14/15 years of age, when attended her school at Bango Behan, Taluka Faiz Ganj, was taken away by her co-student Ms. Saima under the pretext to collect certain copies from her house, eventually, she took her to the house of accused Istekhar, there she was forcibly subjected to rape by all the male appellants, one after other, after keeping her under wrongful restraint, for that the present case was registered. On conclusion of separate trials (as appellant Mst. Saima was  juvenile), all the appellants were convicted u/s 376(II) PPC and sentenced to undergo imprisonment for life, they were further convicted u/s 342 PPC and sentenced to pay fine of Rs.5000/- each and in default whereof to undergo simple imprisonment for 06 months; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by III-Additional Sessions Judge, Khairpur by way of                         two separate judgments dated 03.12.2010, those have been impugned by the appellants before this Court by preferring instant appeals, either through their counsel or from jail.

2.       It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party due to political rivalry; the FIR of the incident has been lodged with delay of about 06 days; there is no DNA test or group matching and evidence of the P.Ws being inconsistent and doubtful has been believed by learned trial Court without assigning cogent reasons. By contending so, they sought for acquittal of the appellants by extending them benefit of doubt. In support of their contentions, they relied upon cases of (i)Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 SC 527), (ii) Muhammad Javed vs. The State (2019 SCMR 1920), (iii) Salman Akram Raja and another vs. Government of Punjab through Chief Secretary and others (2013 SCMR 203), (iv) Muhammad Aslam vs. Shakeel Liaquat and others (2006 SCMR 348), (v) Ayub Masih vs. The State (PLD 2002 S.C 1048) and (vi) Abid Javed alias Mithu vs. The State (1996 P.Cr.L.J 1161).

3.       None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state has sought for dismissal of instant appeals by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt. In support of her contentions, she relied upon cases of (i) Atif Zareef and others vs. The State (PLD 2021 S.C 550), (ii) Irfan Ali Sher vs. The State (PLD 2020 S.C 295), (iii) Zahid and Riaz Ali vs. The State (SBLR 2020 S.C 77) and (iv) Shakeel and 6 others vs. The State (PLD 2010 S.C 47).

4.       Heard arguments and perused the record.

5.       It was stated by complainant Mst. Asma that on 10.10.2009 she was dropped by her relative P.W Bashir at her school. He has not been examined by the prosecution, his examination was essential to prove that he actually dropped the complainant at her school, therefore, his non-examination could not be overlooked. It was further stated by the complainant that at school, Mst. Saima asked her to accompany to collect certain copies from her house, eventually she took her to house of accused Istekhar who made her to sit by asking that she is not allowing him to cohabit, therefore, he has arranged for her arrival at his house by forming a plan. Thereafter, all the male accused forcibly removed her clothes and then committed rape with her one after other. In the meanwhile, P.W Abdul Jabbar, the peon of the school and P.W Fakharuddin came at the place of incident by making search for her and on enquiry made from Mst. Saima they came inside of the place of incident, opened the door; the appellants finding them there, fled away. It was further stated by the complainant that she narrated the incident to above witnesses, they took her to Head Master of the school, who called her parents and then they went to their house. Her father P.W Faiz Muhammad then related the incident to his “Nek Mard” Ahmed Ali, who advised him to wait as he is going to have a “Faisla” with the appellants, to save the prestige of the family, which the appellants failed to have, therefore, she lodged report of the incident with P.S Faiz Ganj. It was lodged on 6th day of the incident. P.W Ahmed Ali who is appearing to have caused delay in lodgment of the FIR, the prosecution has not been able to examine. His non-examination, prima facie suggests that delay in lodgment of the FIR is not explained plausibly and it has been lodged after due consultation and deliberation. It was stated by P.W Abdul Jabbar that he and P.W Fakharuddin made search for the complainant and then went at the place of incident and saw from the door that male appellants were subjecting the complainant to rape and then they fled away, the complainant then was taken to Head Master of the school. On asking he was fair enough to admit that as per his 161 Cr.P.C statement, he seen the incident from window. It was stated by P.W I.O/SIP Ghulam Hussain that there was no widow to the place of incident. Perhaps, in that context P.W Abdul Jabbar improved his version by stating that he seen the incident from door; such improvement on his part being dishonest could not be ignored. P.W Abdul Jabbar has claimed to be co-villager of the complainant party. On asking the complainant was fair enough to admit that P.W Abdul Jabbar is her uncle. Being uncle to the complainant, P.W Abdul Jabbar obviously was having reason to support her, therefore, he could safely be said to be interested witness. P.W Fakharduddin, who was with P.W Abdul Jabbar at the time of alleged incident has not been examined by the prosecution. The inference which could be drawn of his non-examination in the circumstances, would be that he was not going to support the case of the prosecution. As per P.W Dr. Tajan, on examination, no violence was found over genitals of the complainant and human semen was detected in vaginal swabs of the complainant. On asking, she was fair enough to say that after 72 hours semen goes off completely. In response to question as to how the semen then was found alive in vaginal swabs of the complainant? It was stated by her that the reason is that she might had (been) again allowed for intercourse (by anyone else) for anyone. No group matching or DNA was conducted; therefore, it would be hard to connect the male appellants with the human semen detected from the vaginal swabs of the complainant. It was further stated by P.W Dr. Tajan that the victim lady had stated that the incident had occurred with her about 5/6 days before my examination; hence I have based my opinion according to her opinion. The opinion based on statement of the victim lady could hardly be said to be justified and legal.  It was stated by P.W IO/SIP Ghulam Hussain that as per Muster Roll, the complainant was found absent while appellant Asma was found present in school on the date of incident. P.Ws Abdul Qadir and Sher Muhammad, who happened to be Head Master and Master of the school at the relevant time, were not examined by the prosecution. Subsequently, they were examined by the appellants in their defence, they also confirmed the absence of the complainant from the school on the date of incident. It prima facie belies the complainant that she on the date of incident attended the school and then was taken to place of incident and was subjected to rape. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellants in commission of incident beyond shadow of doubt and to such benefit they are 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.       The case law which is relied upon by the learned DPG for the state is on distinguishable facts and circumstances. In case Atif Zareef (supra), the involvement of the appellant was corroborated by DNA test report. In the instant matter, there is no DNA or matching report. In case of Irfan Ali (supra) there was delay of about one day in lodgment of FIR and hymen was found freshly raptured. In the instant matter, there is unexplained delay of 05 days in lodgment of FIR and hymen of the victim was found healed. In case Zahid and Raja Ali (supra) mark of violence was found on the body of the victim. In the instant matter, no mark of violence was found on genital part of the victim. In case of Shakeel and others (supra) there was video recording and photographs. In the instant matter there is no video recording or photographs of the incident.

9.       In view of above, the conviction and sentence awarded to the appellants by way of impugned judgments are set-aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court. They are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

10.     Instant appeals are disposed of accordingly.

                   JUDGE

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