IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No.S–13 of 2022

Appellant:                            Zahid Hussain s/o Sadhayo by caste Shar

                                                Through Mr. Yasir Hussain Hulio, Advocate.

Complainant:                      Horan Khan Shar through Mr. Abdul Rehman Bhutto, Advocate

The State:                              Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing:                  18-05-2023.

Date of decision:                 18-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;-. It is case of prosecution that the appellant who himself is boy aged about 14/15 years has committed carnal intercourse against the order of nature with PW Habib Rehman a boy aged about 7/8 years, for that he was booked and reported upon. On conclusion of trial he was convicted under Section 377(b) PPC and sentenced to undergo imprisonment for 14 years with fine of rupees One Million and in default whereof to undergo simple imprisonment for 03 years and 06 months, by learned 1^st Additional Sessions Judge/MCTC, Shikarpur, vide judgment dated 29.03.2022, which he has impugned before this Court by preferring the instant Criminal 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 complainant party in order to settle its dispute with his father over the landed property being closely related; the FIR of the incident has been lodged with delay of about two days; the DNA report is negative; the evidence of the complainant and his witnesses being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3.         Learned Addl.P.G for the State and learned counsel for the complainant have sought for dismissal of the instant criminal appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt by producing ocular evidence.

4.         Heard arguments and perused the record.

5.         Admittedly, FIR of the incident has been lodged with delay of two days; such delay having not been explained plausibly therefore, it could not be overlooked; it is reflecting consultation and deliberation. Complainant Horan Khan, his wife PW Mst.Zarina and son PW/Victim Habib Rehman no doubt have implicated the appellant in commission of the incident but they in their version are belied by medical officer Dr.Shoaib Ahmed by stating that no act of sodomy has been committed with PW/Victim Habib Rehman. The Expert’s evidence could not be overlooked. As per DNA report, the anal swabs and clothes of the PW/Victim Habib Rehman were not found containing Male/DNA/Semen stain/Sperm fractions; it also absolved the appellant from liability of the incident. 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 the incident beyond shadow of doubt and to such benefit he is found entitled.  

6.         In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.     

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 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.

9.         The instant criminal appeal is disposed of accordingly.     

              JUDGE