IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No. D–44 of 2022

Crl.Conf. Case No.D-19 of 2022

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Zulfiqar Ali Sangi.

Appellant:                            Asadullah son of Abdul Hakeem Khoso

                                                Through Mr. Safdar Ali Ghouri, Advocate.

The State:                              Through Mr. Aitbar Ali Bullo, D.P.G.

Date of hearing:                  22-03-2023.

Date of decision:                 22-03-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is the case of prosecution that the appellant attempted to commit rape with Farhana a young girl of about 11/12 years, for that he was booked and reported upon. On conclusion of trial, he without specifying the penal section was sentenced to death, subject to confirmation by this Court with fine of Rs.10,00,000/- and in default whereof  to undergo simple imprisonment for 04 years with  no benefit under Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge Kandhkot, vide judgment dated 25.10.2022, which he has impugned before this Court by preferring the instant Criminal Appeal. A reference is also made by learned trial Court for confirmation of death sentence awarded to the appellant.

2.         It is contended by learned counsel for the appellant that appellant being innocent has been involved in this case falsely by the police and he has been convicted/sentenced by learned trial Court virtually on the basis of no evidence, therefore, he is entitled to his acquittal by extending him benefit of doubt, which is opposed by learned D.P.G for the State by supporting the impugned judgment.

3.         Heard arguments and perused the record.

4.         Complainant Mirzado on account of his failure to support the case of prosecution was declared hostile. PWs Abdul Rasheed and Muhammad Nadeem besides supporting the case of prosecution on factual premises failed to recognize the appellant by stating that he is not the same. PW/Mashir Altaf Hussain on asking was fair enough to admit that he signed all the memos at Police Station which prima facie suggests that the investigation of present case was not conducted fairly by I.O/SIP Akbar Ali. On asking, PW Dr.Romana Abbasi was fair enough to admit that the hymen of Victim Farhana was found intact, it is in line with the case of prosecution whereby it was alleged that she was attempted to be subjected to rape. However, her vaginal swabs on DNA examination implicated the appellant in commission of the incident. It appears to be mystery which was to have been resolved by the prosecution by examining Victim Farhana; she was not examined thereby such mystery remained unresolved which prejudiced the appellant in his defence seriously. In these circumstances, it would be safe to conclude 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.  

5.         In case of Muhammad Jamil vs. Muhammad Akram and others         (2009 SCMR 120), it has been held by the Hon’ble Apex Court that;

“When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.”

6.         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".

7.         In view of 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 for which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if is not required to be detained in any other custody case.

8.         The death reference is answered in negative.

9.         The instant criminal appeal is disposed of accordingly.     

              JUDGE

               JUDGE    

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