IN THE COURT OF CIVIL/FAMILY JUDGE AND J

THE HIGH COURT OF SINDH, CIRCUIT COURT MIRPURKHAS.

Criminal Appeal No.S-47 of 2024

Present:

Mr. Justice Khadim Hussain Soomro.

Appellant : Chandan s/o Sakar

Through Mr. Abdul Hafeez Mari, Advocate.

The State: Through Mr. Shahzado Saleem, Addl. Prosecutor General

Date of hearing: 01.07.2024

Date of decision: 01.07.2024

JUDGMENT

KHADIM HUSSAIN SOOMRO, J;- Through this listed criminal appeal filed by the above-named appellant against the impugned judgment dated 03.01.2023, rendered by learned 1st Additional Sessions Judge/MCTC, Umerkot, in Sessions Case No.77/2022 (Re. State Vs Chandan), emanating from F.I.R. bearing Crime No.154/2021, for offences under Sections 376(ii),337-A(i),337-F(i) P.P.C. r/w section 3/2 Human
Trafficking in Person Act, 2018, whereby the appellant was convicted for an offence under section 376(1A)/ 511 PPC and sentenced to suffer R.I for 12 years and to pay a fine of Rs.50,000/= and in case of default thereof to suffer S.I for 01 years more; however, the benefit of section 382(b) Cr. P.C was extended to him.

2. Brief facts of the prosecution case as disclosed in F.I.R. lodged by complainant Maroo Bheel on 14-12-2021 at 1130 hours at PS Umerkot City, stating that he is a tractor driver. On 12-12-2021 at about 1700 hours, when he came home, his wife informed him that she had sent their daughter Kaveeta towards the facing village to purchase commodities from a shop. Still, she had not yet returned, so complainant Maroo and his brothers Arbab and Khamiso went to search for Kaveeta at the shop. When they reached Rajveer Singh Sodho's water extractor, they heard cries, and then they shouted. On their shouting, one person whose face was exposed alighted from a cotton crop while tethering his shalwar and fled away. Then they went there and found that the complainant's daughter Kaveeta, aged about 8/9 years, was lying there in a semi-conscious condition; her shalwar was removed, blood was oozing, and injuries were caused on her face and eyes. They immediately took Kaveeta to Taluka Hospital Umerkot, and the complainant obtained a letter from P.S Umerkot City. The doctor referred victim Kaveeta to Hyderabad Hospital. Then, the complainant left his daughter at Hyderabad Hospital with his brother, came to P.S Umerkot City, and lodged an instant F.I.R.

3. The investigating officer, on completion of the usual investigation, submitted final report under Section 173 Cr. P.C. before the court of learned Judicial Magistrate from where after completion of codal formalities, the case was sent up to the court of learned Sessions Judge, Umerkot, from where it was made over to learned trial Court, where the case proceeded against present appellant and formal charge was framed against him, to which he pleaded not guilty and claimed trial.

4. To prove the case, the prosecution examined PW-01, complainant Maroo, PW-02 Khamiso, PW-03 Arbab, PW-04 Dr. Mehreen Samoon, PW-05 Dr. Jaidev, PW-06 ASI Allauddin, PW-07 LPC Muradi, PW-08 victim Kaveeta, PW-09 Mr. Rasool Bux Dars, Judicial Magistrate, P.W-10 Bhalji and P.W-11 SIP / I.O Momin Ali. They all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5. The present appellant, in his statement, recorded in terms of Section 342 Cr. P.C., denied the allegations levelled against him by pleading his innocence. He, however, did not examine himself on oath in disproof of the charge, nor led any evidence in his defence.

6. On the assessment of the evidence brought on record by the prosecution and hearing counsel for the parties, the learned trial Court convicted and sentenced the appellant, as discussed above.

7. After arguing at some length, the learned counsel for the appellant prayed that he would not like to argue on merits but would be satisfied if the sentence awarded to the appellant was reduced to the period he had already remained in prison.

8. On the other hand, learned Additional Prosecutor General Sindh concedes that the appellant has remained behind bars for a sufficient period and learnt the lesson; therefore, he has no objection if a lenient view is taken against him by dismissing the instant criminal appeal and treating the sentence to one as already undergone.

9. I have heard learned counsel for the appellant, learned A.P.G for the State and have gone through the record.

10. This Criminal Appeal was presented on 23.01.2023 and is still pending before this court. Per Jail roll, the appellant has served out a sentence without remission as 02 years, 06 months and 10 days and has earned remission as 03 years, 01 months and 17 days, and the remaining portion of his sentence is 06 years, 04 months and 03 days. Further learned counsel for the appellant submits that he is not pressing the criminal appeal on merits but would be satisfied if the sentence awarded to the appellant is reduced to the period he had already remained in prison. The learned Additional P.G. does not oppose such a proposal.

10. Per the record learned, the trial court convicted the appellant for an offence u/s 376(1A)/ 511 PPC to suffer R.I for 12 years and to pay a fine of Rs.50,000/= and in case of default to suffer S.I for one year more. For convenience, the contents of section 376(1), P.P.C. is reproduced as under;

"376, P.P.C. Punishment for rape.

(1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty five years and shall also be liable to fine."

(emphasis provided)

11. Section 376(1), P.P.C. provides for three alternate punishments i.e.: death, imprisonment for life, and ten years. Section 511, P.P.C. provides imprisonment of any description for the offence for a term which may extend to one-half of the longest term of imprisonment. For convenience, the provision of section 511, P.P.C. is reproduced as under;

"511 P.P.C. Punishment for attempting to commit offences punishable with imprisonment for life or a shorter term

Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine (daman) as is provided for the offence, or with.

12. According to section 511, P.P.C., the maximum sentence that can be imposed is up to half of the longest term of imprisonment. It appears that the legislature intended for the court to have the authority to determine the appropriate punishment, potentially up to half the maximum imprisonment. Section 511 of the P.P.C. establishes the maximum threshold, while the minimum limit is not specified and is determined by the court based on the specific details of the case.

13. The appellant, who has no prior criminal record or history of committing offences, feels genuine remorse or regret for his actions. The appellant is a young man. The individual has hope or potential to learn from his mistakes and grow. This growth can enable the appellant to reintegrate into society positively. By learning from his mistakes and improving himself, he can contribute positively to his community and abide by the law in the future.

14. In view of the above, criminal appeal is dismissed while taking a lenient view, with the modification that the sentence is reduced to one as already undergone, including the fine amount. The appellant Chandan is confined in Jail. The office is directed to issue a release writ for the appellant with directions to the Superintendent Central Prison, Mirpurkhas, to release him forthwith if not required in any other custody case.

15. The instant Criminal Appeal is dismissed with the above modification.

JUDGE

*Faisal*