IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 32 of 2022

Appellant: Qurban Ali through Mr. Dur Muhammad Mallah advocate

The State: Through Mr. Hussain Bukhsh Baloch, Additional Prosecutor General Sindh

Date of hearing: 02.09.2022

Date of judgment: 02.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant attempted to commit rape with baby Sanam, a girl aged about 12 years, by removing her Shalwar, for that he was booked and reported upon. After due trial, he was convicted for an offence punishable under section 376 r/w Section 511 PPC and was sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 06 months, with benefit of Section 382-B Cr.PC, by learned Xth-Additional Sessions Judge, Karachi East, vide judgment dated 17.12.2021, which is impugned by the appellant before this Court by preferring the instant appeal.

2. At the very outset, it is contended by learned counsel for the appellant that he would not press disposal of instant appeal on merits, provided the sentence awarded to the appellant is reduced to one which he has already undergone, which is not opposed by learned Additional P.G for the State.

3. Heard arguments and perused the record.

4. Admittedly, no rape has taken place and same as per medical officer Dr. Afshan Nazli was not even a case to involve an attempt to commit rape with victim baby Sanam. In that situation, if evidence of complainant Mst. Zareena and her witnesses is believed to be true, then it constitutes an offence an offence of outraging modesty of P.W/victim baby Sanam, which is punishable under section 354 PPC.

5. In case of Muhammad Sharif vs. The State (1986 P.Cr.L.J 2496), it has been held by the Honourable Federal Shariat Court that;

“……..from the record as demonstrated above the appellant was at the most trying to make Mst. Parveen naked by unfastening the Shalwar. He did not succeed in the attempt of removal of the Shalwar and did not take away his own Shalwar. The Shalwar of Mst. Parveen was not even torn (it has not been even alleged). In these circumstances it cannot be held that the appellant had been guilty of the offence under section 11 or 10 (3) A read with section 18 of the Ordinance and in our opinion has been guilty of offence under section 354, P.P.C. and can be convicted and sentenced under that section. We accordingly allow this appeal, set aside the conviction and sentences under section 11 and 10 (3) read with section 18 of the Ordinance and convert the conviction to one under section 354, P.P.C. and sentence him to the sentence, already undergone by him…..”

6. In view of above, the appellant is convicted under Section 354 PPC and sentenced to undergo rigorous imprisonment for 02 years and to pay fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C.

7. Subject to above modification, the instant criminal appeal is dismissed.

JUDGE