IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-102 of 2022

Appellant: Shahid son of Muhammad Aslam bycaste Bhutto, Resident of near Hanif Chowk, New Yard Rohri, District Sukkur.

(Now confined at Central Prison Sukkur)

Through Mr. Sajjad Hussain Kolachi, advocate.

The State: Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General Sindh

Complainant. Wazeer Ali in person.

Date of hearing: 03-03-2023.

Date of judgment: 03-03-2023.

J U D G M E N T

IRSHAD ALI SHAH, J- The facts in brief for disposal of instant Crl. Appeal are that the appellant allegedly has attempted to commit rape with baby Wazeeran a girl aged about 07 years by taking off her clothes and kissing her face by putting her under wrongful restraint in bath room of Nai Roshni Girl’s Primary School Newyard, Rohri, for that he was booked and reported upon. On conclusion of trial, he was convicted u/s 377 (b) PPC and sentenced to undergo rigorous imprisonment for 14 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 02 years; he was further convicted u/s 342 PPC and sentenced to undergo rigorous imprisonment for 01 year; both the sentences were directed to run concurrently with benefit of section 382-B Cr.P.C. by learned IInd Additional Sessions Judge/Gender Based Violence Court, Sukkur, vide judgment dated 26-10-2022, which is impugned by the appellant before this Court by preferring the instant Crl. Appeal.

2. At the very outset, it is stated by the learned counsel for the appellant that the appellant as per jail roll has already undergone more than 10 months of the imprisonment inclusive of the remission; he has mainly been convicted u/s 377(b) PPC for such offence, he was never charged, the offence alleged against him at the most would fall u/s 354 PPC, maximum punishment prescribe for such offence is 02 years with fine, therefore; he would not press the disposal of instant Crl. Appeal on merits, provided the sentence awarded to appellant is reduced to one which he has already undergone, by modifying the penal section, which is not opposed by learned DPG for the State and the complainant in person.

3. Heard arguments and perused the record.

4. Complainant and his wife Mst. Shamshad are not eye witness to the incident, therefore their evidence hardly lend support to the case of prosecution. As per Women Medical Officer Dr. Shah Jahan, no violence or sexual intercourse was found to have been committed with PW/victim baby Wazeeran. DNA report is not implicating the appellant in commission of incident. It was stated by PW/victim baby Wazeeran that the appellant kissed her and attempted to put off her clothes in wash room of the School. If her version is believed to be true, then it at the most constitutes an offence 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 to the appellant u/s 377 (b) PPC is modified with Section 354 PPC, consequently, he for offence u/s 354 PPC is convicted and sentenced to undergo rigorous imprisonment for 01 year and to pay fine of Rs.15000/- and in default whereof to undergo simple imprisonment for 01 month; the punishment to the appellant u/s 342 PPC is also modified with section 341 PPC, he for offence u/s 341 PPC is convicted and sentenced to undergo rigorous imprisonment for 01 month; both the sentences to run concurrently with benefit of Section 382-B Cr.P.C.

7. The instant Crl. Appeal is disposed of subject to above modification.

JUDGE

Nasim/P.A