IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

 

Criminal Appeal No.S–45 of 2021

 

Appellant:                            Dilbar son of Imamuddin Kalhoro

                                                Through Mr. Saeed Ahmed Bijarani, Advocate.

 

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

 

Date of hearing:                  10-04-2023.

Date of decision:                 10-04-2023.

JUDGMENT

 

IRSHAD ALI SHAH, J. It is alleged that the appellant with one more culprit, took with them PW Ameer and then subjected him to unnatural lust by recording such video, for that the present case was registered. On conclusion of trial, the appellant was convicted under Section 367-A r/w Section 34 PPC and sentenced to undergo rigorous imprisonment ten years and to pay fine of Rs.20,000/- and in  default whereof, to undergo simple imprisonment for one year; he was further convicted under Section 377 PPC and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for one year; both the sentences were directed to run concurrently, with benefit of Section 382-B Cr.PC by learned 1st Additional Sessions Judge/ MCTC/GBVC, Qamber, vide judgment dated 08.06.2021, which he has impugned before this Court by preferring the instant Criminal Appeal.

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

3.         Heard arguments and perused the record.

4.         The FIR of the incident has been lodged with delay of about three days; such delay having not been explained plausibly could not be overlooked; it is reflecting consultation and deliberation. The evidence of complainant Zamir Hussain, PWs Ghous Bux and Mst.Basran is not lending any support to the case of prosecution as they admittedly are not eye-witnesses to the incident. PW/victim Ameer besides supporting the case of prosecution to some extent on factual premises has in end of his evidence failed to recognize the appellant; by such act, he impliedly declared the appellant to be innocent. The video clip of the incident allegedly recorded by the appellant has not been brought on record; such omission could not be overlooked; by that act, a valuable piece of evidence was withheld by the prosecution for no obvious reason, which has prejudiced the appellant in his defence seriously. Only the evidence which allegedly connects the appellant with commission of the incident is DNA report which is brought on record by PW Dr.Sarang, whereby the appellant has been found to be contributor of semen stain/sperm fractions identified on Anal swab samples & clothes of PW/victim Ameer. On asking, it was stated by I.O/ASI Sher Khan that semen was obtained from the appellant by asking him to indulge in hand-practice. If it was so, then the semen samples have been exposed to tampering which has made the DNA report doubtful to be relied upon. 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 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”.     

 

6.         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.”

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