IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Appeal No.S-20 of 2018
hearing of main case
of hearing 07.05.2018
of Judgment 25.05.2018
Mr. Shabir Ali Bozdar Advocate
Mr. Sardar Ali Shah
IRSHAD ALI SHAH, J - The appellants
have preferred the instant appeal against the Judgment dated 24-1-2018 of
learned Additional Sessions Judge Ubauro whereby they for having committed an
offence punishable u/s 376(2) PPC, were convicted and sentenced to undergo
imprisonment for life and to pay fine of Rs.100,000/- each to victim Mst.
narration of the facts made by complainant Molvi Muhammad Hassan in his FIR is as
"Complaint is that Mst. Shazia daughter of Abdul
Razaq Leghari, aged about 19/20 years is my paternal niece. She is virgin.
Abdul Razaq is having a house in deh Wahi Gul Khan and he is Pesh Imam of
Masjid with Hazoor Bux Mazari. Nadir Moosani is having his house by the side of
house of Abdul Razaq. He is a Loafer type person. He was prevented by us from
standing in front of house of Abdul Razaq for number of time. On that he was
annoyed and was oftenly was found saying that we would get its result. On last
night when me, my brother Muhammad Muavia, cousin Pahalwan son of Niaz Leghari,
Mst. Shazia daughter of Abdul Razaq and other members of family were available
in the house. Abdul Razaq did not return from Masjid. Bulbs were lightening.
There at about 10.00 pm, we found and identified accused Nadir, Sudheer both
sons of Muhammad Alam Moosani, 3. Shah Muhammad @ Shahoo son of unknown
Moosani, residents of deh Wahi Gul Khan, 4. Abdul Khaliq son of Muhammad Malook
Dayo, resident of Daharki and one unknown culprit. All armed with pistols. They
committed trespass in my house; drag my paternal niece Mst. Shazia out from our
house by holding her arms. We and other members of family attempted to resist
but the accused kept us silent by pointing their weapon at us. Then all the
said accused took away Mst Shazia by making her to sit in white colour 2D car.
We did not go out of our house because of night time. Now I am lodging of the
FIR above said incident by stating that the above said accused by committing
trespass in my house have abducted Mst. Shazia daughter of Abdul Razaq with
intention to get her marry with Nadir Moosani by force or to subject her to rape.
Unknown culprit is seen by us properly, he could be identified if is seen
investigation, Mst. Shazia appeared at P.S. Daharki voluntarily. She was
subject to medical examination and after usual investigation the challan was
submitted by the police against appellants, co-accused Abdul Khaliq (since
acquitted), absconding accused Shah Muhammad @ Shahoo and one unknown culprit,
before the court having jurisdiction.
the trial, the appellants and co-accused Abdul Khaliq (since acquitted) pleaded
not guilty to the charge and prosecution to prove it examined PW-1 complainant
Muhammad Hassan, produced through him FIR of the present case, PW-2 Ameer
Muavia, PW-3 victim/Mst. Shazia, PW-4 Sultan Ahmed, produced through him
mashirnama of place of incident, PW-5 ASI Nazir Ahmed, produced through him
mashirnama of recovery of Mst, Shazia, PW-6 Dr. Zaibunissa, produced through
her provisional and final medical certificates in respect of examination of victim/Mst.
Shazia and report of chemical examiner and then closed the side.
appellants and co-accused Abdul Khaliq (since acquitted) denied the prosecutions’
allegation by pleading innocence. They, however, did not examine themselves on
oath nor anyone in defence.
trial court, on evaluation of the evidence acquitted co-accused Abdul Khaliq
while convicted and sentenced the appellants by way of impugned judgment, as
is contended by learned counsel for the appellants that they, being innocents,
have been involved in this case falsely by the complainant party and there was
no evidence against them warranting their conviction. By contending so, he
sought for their acquittal. In support of his contention he relied upon case of
Nadeem Shah and others vs. The State
& others which is reported at PLD
2005 SC 181, 2. Case of Aijaz Ahmed
and others vs. The State, which is reported at 2010 SCMR 141, 3. Case of Muhammad
Zubair vs. The State, which is reported at 2007 SCMR 437, 4. Case of Azhar
& others vs. The State, which is reported at 2013 PCrLJ 1716, 5. Case of Touqeer
Abass vs. The State, which is reported at 2017 PCrLJ 848 and 6.
Case of Nadeem Bhatti @ Sunny v/s The
State, which is reported at 2016
PCrL J 558.
DPG has supported the impugned judgment while complainant Molvi Muhammad Hassan
and victim/Mst. Shazia have raised no objection to acquittal of the appellants
by filing of their affidavits.
9. I have considered the
arguments and perused the record.
stated above it was alleged against the appellants and others that on 23.9.2016
at about 2200 hours they after having formed an unlawful assembly and in
prosecution of their common object, being armed with deadly weapons, committed
trespass into the house of complainant Molvi Muhammad Hassan and abducted Mst.
Shazia with intention to compel her to marry with person against her wishes or
to subject her to rape. Such case, on appearance of victim before police at PS Daharki was
claimed to have resulted into forcible Zina upon her too.
The points for
determination, which were framed by learned trial Court, were to the following
on 23-09-2016 at about 2200 hours accused Nasir Sudheer, Abdul Khaliq armed
with pistols alongwith pistols along with absconding accused Shah Muhammad @
Shahoo, duly armed with pistols, by forming an unlawful assembly, in
prosecution of their common object committing rioting and trespassed into the
house of Complainant?
above named accused persons forcibly entered into the house of complainant and
abducted Mst. Shazia aged about 19/20 years with intention to compel her to
marry any person against her will or to commit rape with her?
all or any of accused committed ZINA-BILL-JABAR (gang rape with Mst. Shazia
against her consent?
offence if any committed by the accused?
above points prima facie were framed, as per case (allegations) of
prosecution, hence were controlling each other least each part was
necessary for linking other part. I would state here that it was never a
case of prosecution that victim was missing or was abducted from an isolated
place but it was categorical claim of the prosecution that there was
trespass and forcible abduction of the victim. Both of such
sections, needless to say, are also independent offences yet continuing
parts of prosecution story. Since, prima facie all these parts (framed
points) were describing a separate part of prosecution claim
therefore, it is observed that failure of the prosecution to prove any
of said parts was sure to bring element of doubt into play. The perusal
of the impugned judgment of conviction shows that while discussing the
evidence of complainant Molvi Muhammad Hassan, PW Ameer Muavia and victim/Mst
Shazia, the learned trial court answered points No. 1 and 2 as “not
evidence of the prosecution so far trespass into the house of complainant Molvi
Muhammad Hassan and abduction of victim/Mst, Shazia there-from was disbelieved
by learned trial court yet the learned trial court court recorded conviction
against the appellants for point No.3 which again was not believed for
acquitted accused Abdul Khalique. I would come to this later. I am
surprised that when learned trial court disbelieved allegations of trespass and
abduction of victim on a particular date, time and place then what had
prevailed in convincing the trial court in convicting the appellants for zina
(376 PPC) when there came no separate story to effect of reaching of
victim/Mst.Shazia into hands of appellants. A failure to explain
such material aspect of the case was sufficient for acquittal of the appellants
because a reasonable doubt is always sufficient for acquittal. No reason
on that point is assigned by learned trial court.
case of Faheem Ahmed Farooq vs. The
State, which is reported at 2008
SCMR 1572, it was held as under;
“Single infirmity creating reasonable doubt regarding
truth of the charge makes the whole case doubtful.
that as it may, the reason which prevailed with learned trial court for
convicting the appellants for an offence punishable u/s 376 P.P.C was that
there is evidence of Mst. Shazia which is supported by Woman Medical Officer Dr.
Zaibunissa. Here, I would insist that there can be no dispute to well
established principle of law that in such like cases the status of a victim is
always that of a ‘star witness’. The evidence of such a witness controls
the fate of case. If such a witness does not support prosecution case,
it would suffice to be taken as reasonable doubt to acquit the accused
without waiting for corroborative evidences even. But when victim supports
prosecution case then it is always necessary that her / his evidence must
always pass test of being natural and convincing, else no conviction could be
recorded. Reference in that respect may be made to the case of Shahzado @ Shaddu & Ors v. State,
which is reported at 2002 SCMR 1009
wherein it is observed as under;
“6. We would like to mention here at this juncture
that corroboration is not a rule of law but that of prudence. There is no
denying the fact that acid test of the veracity of the prosecutrix’s statement
is the inherent merit of her statement because corroborative evidence
alone could not be made a base to award conviction. It is well settled by now
that “the extent and the nature of corroboration required may, no doubt, vary
from witness to witness and corroboration in every particular, all that is
necessary is that the corroboration must be such as to effect the accused by
connecting or rendering to connect him with the crime. ..
7. We have….. Generally speaking the statement of
prsecutix if considered trustworthy no corroboration would be needed and
such need only arise in the circumstances indicating the possibility of her
being consenting party to sexual intercourse which is a rare phenomena in cases
of Zina-bil-Jabr. ..
15. In another case of Atlas Khan alias Attasi v. State & another which is
reported at 2014 P Cr. L J 1280,
at relevant page 1288, it is observed as under;
… It is pertinent to mention that even a solitary
statement of a victim is sufficient, for conviction under Ta’zir, if it
inspires confidence and finds necessary corroboration from an independent source...
this, it would be pertinent to add that a distinction should always be
kept in mind while dealing with a case of forcible zina by abducting the
victim from isolated place and the one like instant one. The
former would entirely rest on statement of prosecutrix but later
would require proof on each part or if some parts of
prosecution case are disbelieved then before convicting the accused for zina
(376 PPC) alone strong corroboration would always be requirement for safe
Criminal Administration of Justice. Reference in that respect may be made to
the case of Ghulam Mohay-ud-Din alias
Baoo v. State & Ors which is reported at 2012 P Cr.L.J 1903 wherein at relevant page-1906 it is observed as under;
….It is true that the such offences are committed in loneliness
so the absence of the eye-witnesses is not material and statement of the
victim corroborated by the medical evidence is sufficient to prove the charge
but if the statement of victim does not inspire confidence on her own
character appears to be doubtful, then her solitary statement cannot be deemed
to be sufficient to prove the allegation of commission of rape punishable under
section 376 PPC ….
said so, germane to examine the evidence of victim/Mst. Shazia. It was
stated by her during course of examination that “the present appellants and others kept her confined at unknown place
and there they committed rape with her and after four days accused persons
forgot to lock the door of the said place and she got a chance to run out and
straight away went at PS Daharki and informed the police about the incident”.
Such narration appears to be not logical as before believing such narration
number of question (s) beg for answers. If the victim was able to search for
the PS Daharki then she ought to have pointed out the place of her confinement
to police too which she never did?; was she not under any watch? as normally
is expected from a prudent mind. She during course of her examination
identified both of the appellants to be Nadir and Sudheer and for 3rd
accused who was Abdul Khaliq she stated that she could not identify him. By
stating so, she belies her 161 Cr PC statement wherein it was stated by her that
3rd accused with appellants was Abdul Khaliq. Only a known person can be
referred with ‘name’. During course of her examination, no
explanation was given by her that why Abdul Khaliq was named by her in
her earlier statement or was it some other Abdul Khaliq?. Further,
during course of her cross examination she was fair enough to state that “after her marriage she lived with her
husband for about four years. Such marriage came to an end and thereafter since
7/8 years she was residing with her parents”. By stating so, she belies the
complainant (FIR) to the effect that victim/Mst Shazia was a virgin lady. I
would add that a positive report of victim, being used for sexual
intercourse, alone would not be of much significance if the victim is
a married woman. In such eventuality, a little more corroboration from medical
evidence would be required from mere positive report of her
being used for sexual intercourse. Such glaring contradictions
were never appreciated properly by learned trial court which otherwise had
made evidence of the victim/Mst.Shazia to be of doubtful character thereby
becoming not strong enough to hold conviction.
was stated by ASI Nadir Ahmed during course of his examination before learned
trial court that on 27.9.2016 when he was on his duty at PS Daharki, there at about
1000 hours came Mst. Shazia voluntarily and disclosed the commission of the
incident. Her statement was recorded and she then was referred to Hospital for
her medical examination. As per Medical Officer Dr. Zaibunissa, Mst. Shazia
came at hospital on 28.9.2016 for her medical examination. Here arises a
question that as to where Mst. Shazia gone for intervening period of one day?
No explanation to such delay is offered by the prosecution, which could not be
lost sight of as it smells of something wrong and/or foul play. No mark of
violence was found on the body of victim/Mst. Shazia on her medical examination
by Dr. Zaibunissa. The swabs, taken from her vagina allegedly on 28.9.2016,
were delivered to the chemical examiner for chemical analysis on 3.10.2016 with
approximate delay of five days. What was done with those vaginal swabs for five
days? No explanation to it is offered by the prosecution. No DNA test was
conducted to connect the appellants with those vaginal swabs. In these circumstances
to record conviction against the appellants solely on the basis of evidence of
Mst. Shazia and that of Medical Officer Dr. Zaibunissa was not called for.
19. It is observed here that the procedure
in dealing with an appeal nowhere leaves a room for diminishing value of a evidence
by filing of affidavits. Therefore, affidavits, so filed by complainant
Molvi Muhammad Hassan and victim/Mst. Shazia needs no consideration,
particularly when offence for which the appellants are convicted is not compoundable
the last, I would attend to question, left to be attended later, i.e acquittal
of accused Abdul Khalique and conviction of appellants on same set of evidence.
For this, it would suffice to say that it stood, by now, a well settled
principle of law that if the Court disbelieves evidence for one of accused then
no conviction could be recorded on same set of evidence without availability of
independent corroboration to the extent of such other person. Reference in that
respect, if needed may be made to the case of Sardar Bibi & another v. Munir Ahmed & Ors which
is reported at 2017 SCMR 344
wherein at relevant page 350 it is
held as under;
… This Court had already settled the law on the point
that if the eye-witnesses produced by the prosecution are disbelieved to the
extent of some accused person attributed effective role, then the said eye
witnesses cannot be relied upon for the purpose of convicting another accused
person attributed a similar role, without availability of independent
corroboration to the extent of such other person. Reference in this respect may
be made to the cases of Ghulam Sikandar v. Mamaraz Khsan (PLD 1985 SC 11) ,
Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others
v. The State (2004 SCMR 1185), Farman Ahmed v. Muhammad Inayat and others (2007
SCMR 1825), Irfan Ali v. The State (2015 SCMR 840) and Shahbaz v. The State
(2016 SCMR 1763) and Akhtar Ali and others V. The State (2008 SCMR 6).
view of the facts and reasons discussed above, the impugned judgment of learned
trial court could not be sustained, it is set aside. Consequently both the
appellants are acquitted of the offence for which they were charged, tried and convicted.
They shall be released forthwith in the present case.
instant appeal is disposed of in the above terms.
U D G E