IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 411 of 2021

Appellant: Jahanzaib Azam through Syed Imran Mehdi advocate

The State: Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 24.11.2022

Date of judgment: 05.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention, abducted complainant/victim Mst. Batool Naqvi and then subjected her to rape, for that the present case was registered. The appellant being juvenile was charged separately which he denied and prosecution to prove it examined the complainant and her witnesses and then closed its side. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution’s allegations by pleading his innocence. On conclusion of trial, the appellant was convicted under Section 365-B PPC and sentenced to undergo life imprisonment and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months, he was further convicted under Section 376(II)/34 PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months; all the sentences were directed to run concurrently with benefit of section 382(b) Cr.P.C by learned II-Additional Sessions Judge, Karachi Central, vide judgment dated 14.07.2021, which is impugned by the appellant before this Court by preferring the instant jail 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 police, the FIR has been lodged with delay of about 01 day, DNA report is not implicating the appellant in commission of incident and evidence of the P.Ws has been mis-appraised by learned trial Court so far the case of the appellant is concerned. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned D.P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the appellant has been identified by the complainant during course of identification parade.

4. Heard arguments and perused the record.

5. Name and description of the appellant are not disclosed by the complainant in her FIR. DNA report is not implicating the appellant in commission of incident and the complainant during course of her examination on asking was fair enough to admit that the appellant has not played any role in whole episode, therefore, it would be hard to hold the appellant guilty of the said offence on the basis of sole identification parade. Indeed the involvement of the appellant in commission of incident is appearing to be doubtful.

6. In the 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 the facts and reasons discussed above, the conviction and sentence awarded to the appellant are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if not required to be detained in any other custody case.

8. The instant jail appeal is disposed of accordingly.

JUDGE