IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. S-43 of 2022

Appellant: Ahmed Nawaz son of Muhammad Murad by caste Sahito.

Through Mr. Ahmed Bux Abro advocate.

The State: Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General Sindh

Date of hearing: 02-03-2023

Date of judgment: 02-03-2023

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with help of one more committed rape with baby Shahnila, a girl aged about 08/09 years, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under Section 376(1) PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment of 03 months with benefit of section 382(b) Cr.P.C by learned IVth Additional Sessions Judge, Khairpur vide judgment dated 27-05-2022, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; DNA report is not implicating the appellant in commission of incident and evidence of the PWs being doubtful in its character has been believed by learned trial Court without justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt, which is opposed by learned Additional P.G for the state by contending that the offence which the appellant has committed is affecting the society at large. However, complainant Shahnawaz, his wife Mst. Shahnaz and PW/victim Mst. Shahnila by filing their respective affidavits have recorded no objection to acquittal of the appellant.

3. Heard arguments and perused the record.

4. It was stated by complainant that on 31-03-2020 his daughter PW/victim Shahnila went to cut grass from the adjoining land, within moment on hearing of her cries, he, his wife Mst. Shahnaz and his son Yaseen went to her, there they found the appellant committing rape with her while co-accused Muhammad Sajan was holding her and then both made their escape good, he then reported the incident to the police. The evidence of PW Mst. Shahnaz is on line with that of the complainant. On asking the complainant was fair enough to admit that he moved an application before Civil Judge & Judicial Magistrate, Kotdiji, stating therein that PW/victim Mst. Shahnila has sustained injury on account of her fall on the ground with bundle of grass. By admitting so, he resiled from such statement by stating that it was moved under pressure. When asked, he intimated the police or the Magistrate about such pressure, his reply was in negative, which prima-facie suggest that the application moved by the complainant before learned Civil Judge & Judicial Magistrate, Kotdiji was without any pressure. PW/victim Mst. Shahnila has attempted to support the complainant by implicating the appellant in commission of incident; she too on asking was fair enough to admit that an application was filed before learned Civil Judge and Judicial Magistrate, Kotdiji, stating therein that she has sustained the injury on account of her fall on the ground with bundle of grass. It was stated by PW Dr. Shama Zahra that on examination she found PW/victim Mst. Shahnila to have been subjected to fresh intercourse; she obtained her vaginal swabs and those were sent for DNA analysis. As per DNA report, the appellant has not been found to be contributor of semen stains/sperm fractions, identified on vaginal swabs samples and clothe of PW/victim Mst. Shahnila. The DNA report being expert opinion could not be ignored. If it is believed to be true, then it absolves the appellant from commission of incident. PW Yaseen has not been examined by the prosecution, for no obvious reason. The inference which could be drawn of his non-examination under Article 129(g) of the Qanoon-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. It was stated by I/O ASI Allah Wadhayo that he recorded 161 Cr.P.C statements of PWs Mst. Shahnaz and PW/victim Mst. Shanila on 11-04-2021, it was with delay of 11 days to FIR. No explanation to such delay is offered. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of incident beyond shadow of reasonable doubt and to such benefit he is found entitled.

5. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

6. In the 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".

7. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if not required to be detained in any other custody case.

8. The instant jail appeal is disposed of accordingly.

JUDGE