IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 230 of 2022

Appellant: Zahir Khan through Mr. Khalid Hussain Chandio advocate

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

Date of hearing: 21.10.2022

Date of judgment: 21.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is the case of the prosecution that appellant together with one more culprit took Mst. Neelum, a young girl, aged about 15 years to her Otaq, after administering some intoxicant substance to her and then attempted to commit rape with her by recording her obscene video, for that the appellant was booked and reported upon. On conclusion of trial, the appellant was convicted u/s 376 r/w Section 511 PPC and sentenced to undergo R.I for 05 years with fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned Additional Sessions Judge-X, Karachi West vide judgment dated 31.03.2022 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 by learned Trial Court on the basis of evidence, which was doubtful in its character therefore, he is entitled to his acquittal by extending him benefit of doubt, which is opposed by learned DPG for the state by contending that the prosecution has been able to prove its case against him beyond shadow of doubt.

3. Heard arguments and perused the record.

4. Complainant Shahbaz Khan is not an eye witness of the incident therefore his evidence hardly lends support to the case of prosecution; the FIR of the incident is lodged with delay of about 02 days; 161 Cr.P.C statement of P.W/victim Mst. Neelum is recorded with further delay of 02 days even to FIR; such delay having not been explained plausibly could not be overlooked; on asking it was stated by P.W/victim Mst. Neelum that the appellant only attempted to remove her dupatta. If for the sake of arguments, it is believed to be so, then it could hardly constitute an act of attempt on part of the appellant to commit rape with her. Mst. Neelum on medical examination by Dr. Sobia Haseeb was found virgo intacta with no mark of violence on her body. No chemical report is brought on record by the prosecution, which may suggest that P.W/victim Mst. Neelum was actually administered intoxicant substance by the appellant before the alleged incident. As per I.O/Inspector Shabbir Hussain there was no absence video of P.W/victim Mst. Neelum in cell phone of the appellant which was secured from him at the time of his arrest. In these circumstances, it is concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

5. 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…...”

6. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

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, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

9. Instant appeal is disposed of accordingly.

JUDGE