GULZAR SHAH S/O SYED QAMAR SHAH (Appellant) VS THE STATE (Respondent)

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('ritlspqtaey IN THE HIGH COURT OF SINDH AT KARACHI it9' Criminal Appeai No. of 2018 (hlzar Shah Son of Sved Qamar Shah Muslim, adult, Resident of House No.A-294, Khayber Mohala ' Keamari To\4,n. Karachi Presently conf,rned at the Centra.l Prison, Karachi Appe[ant

YERSUS

The State Respondent

EI8' No.-43 U2016 U I s.37 6 P.P.C.

P.S. Docks Karachi

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APPEAL UND ER SECTION 410

CRIMINAL PROCED URE CODE

AGAINST THE JUDGMEN T.

SENTEN CE AND FINE DATED

04.09. 2018. PASSED BY THE

LEARNED ADDL.DIST RICT &

SESSIO NS VIII, KARACHI

IVEST. IN SESSIONS CASE NO.

41t2017.

I Being aggrieved and dissatisfied with the conviction, Judgment, sentence artd fine dated 04.O9.2018, in Sessions No. 4l/2O17, passed by the learned Addl.District ons VIII, Karachi West, convicting and sentencing the llant as under:-

"For the offe nce under section 376 ppC and sentenced him to death as Tazir. He be

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f,TI THE COUR'I' OF ADDTTIONAL DISTRICT &

SESSTONS JUDGE-8, KARACHT WEST

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I Subject: REFIIBENC!] UNIER SE{TION__]Z4 EII.P.C LN SE S S I Q N S N o-41/ 21117- &Ei_LTIIE ST4T E lllrS US G UIZA u S ri-\ l r L_LLl.sJ.(, Ple,llirNlE NO.4-r r / 20 16, P.S DQer(s

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IN THE HIGII COURT OF SIND KARACHI

Prese t:

Mr. Justice Molwfirnad K.tifi Khtt,r Agha Mr. lrcticc Zulfiqar Ali Sangi.

Criminal Appeal No,459 of 2018 Confirmation Case No.07 of 2018

lAppellant ' [c"tr". stta-h through Salahqddin Khan Cand"lu., -Mr.'

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Ino"pona.nr - I rhe srat. ttrot - gh fr,. Prosecutor-' plohr.nrn"a I itrii."i*""' 'eputv Date of h-earings- - fsro:ots ana t6iO.Zotg

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IUDCMINT

Mohrmmad Kalim Khan Agha, l:- The appellant Gulzar Shah son of Syed Qamar shah in the instant appeal has assailed the impugned judgment dated 04.09.2018 passed by the Additional Dishict & Ses$ions Judge VIII, KaJachi (Solrth) in a SessiorLs Casc bearing No.41 ol 2017 whereby the appellant was convicted under Section 265-H (ii) Cr. P.C for oflence under Section 376 PPC and awarded the death sentcnce subic(t to confirmation by this court. A fine of 81s.5,00,000/- (RuPecs Five Lacs) !\,as also imposed upon the appeltant for hurt, anguish, psychological damage .aused to thc personality and body of the victim which shall be paid to her and in,.lelault to pay the same he $,as to undergo SI for a period oI sir months.

2.The brief facts of the case as per FIR are that on 25.11.20'16 at about 1540 hours instant FIR was lodger.l by the comPlainant Mst. Sanora alleging that o 2i.71.2076 in between 1930 to 2030 hours her daughter namely baby Dilawara (the victim) aged about 10 to 11 years was subiected to iape by accused Gulzar Shah s/o Syed Qamar Shah. Thus, FIR rvas lodged under Section 376 PPC and accu€ed lras booked under Section 376 PPC.

3.After usual investigation the accused was challoned and sent uP to face trial for the said offensc.

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4.Formal charge was ftamed against the accused to which he plcade,J not guilty and claimed trial of the case.

5.The plosecution in support of its case examincd 08 PWs and exhibited numclous documents. The statement of the accused/aPPellant was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him and claimed his false imPlication in the case. Ile did not record his statement on oath or cal.l an)' witnesses in support of his defense.

6.l-earned District and Sessions Judge VItl Karachi West after hearing the learned counsel fo! the parties and assessment of evidence available on record, vide the impugned judgment dated 04.09.2018, convicted and sentenced thc appellant as stated above, hence thiri aPpeal has been filerl b1' the appeilant against his conviction.

7.The facts of the case as rvell as evidence producecl befole thc trial Court find an elaborate mention irl the impugned judgment, therefore, the same are not reproducecl herc so as to avoid duPlication and unnecessary repetition.

8.Learnecl coun-sel for the appellant has argucd that there was an unexplained two day delay in lodging FIR which enabled the comPlainant to cook up the story again5t him; the appellant was a ested before the FIR had even lreen lodgcd; that therc was no eye $.itness to this night tirne incident and the other witnesses gave hearsay evidcncei that thc nledical examination of the victim took place after an uncxplained clclay of tu'o days; tlDt there was no DNA mac*h and for one or any oI the above reasons the appcllant h'as entitled to be acquitied of the charge based on the bencfit of the doubt. In support of his contentions he has placed rcliance on Mehmood Ahmad and 3 others v, The State and another (1995 KMIr 124, Azeem Khan and another v. M[iahid Khan and othe$ (2016 SCN'IR 274), Muhammad Aslam v. The State (2019 Ml.D 973), Muhammad ManBha v. The State (2018 SCMR 772), M(lhalnmad Nawaz and anothe, v. The State and others (PLD 2005 Suprcmc Court 40), Hashim Qasim and another v. The Strte (2017 SCMR 986) and The State nnd other3 v, Abdul Khaliq and otherc (PLD 201 I sC 55{)/

9.On the otfu! hand Mr. Mohamnad lqbal Awan, leamed Deputl, Prosecutor General appearing on bchalf of the State argued that there was no delay in lodging the FI& that the victim eyewitness evidence could be salely relied upon as it w.ls corroborated by the medical evidence and as such the impugned iudgment along with sentence and conviction be upheld and the appeal should be clismissed.

10.Wc have heard the arguments of the leamed courrcl for the partics, gone thlough the cntire evidence which has been read out by thc appellant, the impugned judgment with thcir able assistance and have considered the relevant law.

11.Before deciding this case we would reiterate that the rape of a minor 10/11 year old child is an exkemely abhorrmt and heilou$ crime for which the most sevcle penalty is applicable iI prov€n agairlst the a.cused. However, although we are cognizant of the fact that the taw needs to be dvnamic in criminal cases we cannot be so cavalier in our outrage as to caste aside some oI the golden principles of criminal jurisprudence, Namely tllat it is f<rr the prose.ution to prove its case beyond a reasonable doubt against the accused based on cogent, reliable and trustr,,,'orth), eYidence on record Ooth oral and documentary) and that the accused is entitled to the benefit of the doubt and that it is the evidence and not our emotions or personal leelings or gravity or heinougncss of t}le offense which must g!ide our dc{isions.

12.This view was recently emphasized by the Supreme Court in the case of Azeem Khan and anothe( v. Muiahid Khan and others (2016 SCMR 27{) which was a case concerning kidnap for ransom and mulder of a pre tcenager rvhich held ar under at P.290 Para 32.

"lt is alscr a r,r'ell emberldetl principlc of law ancl iustice that no one should be consh'ued intu a cnme orr the basis oI presuDrPtion irr the absencc of shong cT,i,,lcnce <.rf unimpcachable character anal legallv adn ssible one. Simitarly, mere heiaous or gruesome nature of arime shall not dehact the Court of law in any marner ftom the due course to iudge and nrake the appraisal of evidence in a laid down manner and to extend the benefit of reagonable doubt to an accused person being indefeasible and inalienable right of an ac(used. In getting inlllence from the nature of the criore and other extraneoug consideration

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rnight lead the Judges to a patently wlong conclusion. ln that event the iustice would be (asualty,"(bolcl addctl)

13.From the evidence !t'e find that the prosecution has proved be),ond a reasonable doubt by both ocular and medical eviclence, tiat the victim r,r'as raped on 23-11-2016 between 1930 and 2030 hours in the vicinity of Shakir Strcet MulMmmed Coloney Karachi.

14.Thc scrle issue [refore us is therefore whether the appei]ant raped the victim inride his shop as alleged in the chargc or if he raped her at all.

15.'l here is a two day delay in lodging the PII{ however we do not considcr that this is fatal to the prosecution case based on the particular facts and circunl'stances of the case whe.e the prosecution has explained dre delay. Namely, the victim had to be taken to hospital immediately but she was returned home and then taken back the next day due to legal complications which the mother was unawale of. ln such b pe of cases it is not unusual Io! a mothei giving prioritr/ to the well being of her daughter over lodging an FIR especially as the mothe! is sick with worr,v about what has happened to her young child and is very often not irnmediately aware of the legal course to be adopted.

16.PW 1 Dilawara is the 10/11ycar old victim. In he! evidence she sates that she had gone to the shop of Gulzar Uncle in order to purchase some biscuits. Thus, it app€ars that 9he knew the appellant ard thus there r,r'as no need for an idenhlication palade. Flor,\'e\'er shc further states in lTer eYidence in chief that the light $'ent out and suddenly some one came Irom bchind her and put their hand on her mouth and thereafter she did not know where she \a'as taken and that ra'hen she next opened her eyes she found hcrsclJ in hospital .In erosg examination ohe categori.ally stater that she did not see the pel8on reho pqt her hcnd over het mouth and raped her i'hich contradicLs her S.164 Cr.rc statement which was given alter an unexplained delay ol8 davs aJter the incident whereby she speciiicalll, names thc appellant as closing her mouth and taking her inside the shop where alter hc cornmitted celtain acts against he!. We do not find it believable that the most vital part of her evidence she does not give under oath in the u itness box namelv that it lvas thc appellant who raped her. lt seems to us inexplicable that she can remember each and

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eveo, olher cletail surrounding the incident but not who nas the perpetratd oI the act on her who she apparently kncw. It bcgs the question as to lvhether she was put up to say that it i,"as the appellant r,r'ho had committed the offense against her especially as there is an unexplained 8 day delav in recording her 5.164 Cr.rc statement, This is more so as there are no other eye witnesseg to the rape and she herself cannot be deeoed an eye witnese under these (iraumstan{es. The oily othe! evidence that the appellant raped the victim is hearsay evidence which is inadnrissible in evidence-

17.PW 2 Sinwara who is not an el'e !\,itness and is the mother of the yictim who lodged the FIR states in her evidence that she found her daughter bleeding oubide the appellant's shop ancl she lodged the FIR on the basis that her daughter was found outside the appellant's shop. Interestingl)', although it was only hearsay evidence the mother states ilr her evidence that when she asked her daughter who had done this to her she told her mother that she had not seen the appellant as someonc carre from behind. More signifi.antly in her FIR lodged 2 days aJte! the incident she states that Gulzar had raped her daughte! \^,hich is in complele conflict with her evidence as mentioned above. She also etates in her evidencc that no one in the Mohalla had secn the appellant committing the offense. Again PW Noor-ul-Amin ifl his evidence states that PW 2 Sinwara told him a day after the incident that she did not know who had committed the rape but she suspected it was Culiat as this is what the victim was saying whilst she was in an unstable condition in hospital. Thus, there appeais to be some doubt as to who actually raped the victim,

18.Significantly, nothing was recovered from the place of incident and no blood rvas recovered Irom inside the shop which ought to have been ples€nt if the victim was raped in the shop as according to the ef idence she was bleeding heavily which begs the question ia'hether the victim was raped in the shop or outside of the shop which creates further doubt as to the identit]- of the rapisl According to the memo of Inspcction of scene of thc oJfense it was stated that the offense was corrunitted bcaide the wall of Hussain Panlvala shop situated b€sidc Gulzar's shop and in fron[ oI a rice gowdor,r.n but nothing was recovered flom there. There is/

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also no evidence of blood stains on the pavement which again seems surprising as the evidence is that thc victim was heavily bleeding and it was not raining and as such any blood would not have been washed away. A.cording to the memo of Iaspection of scene of the oflense it was a crowded aiea at 7.30 to 8.3U pm at night yet no one heard or saw anything. Thus, it appears that the victim could not have been raped in the shop as there was no blood insidc the shop despite the victim bleeding hcavil)-. It is not even known iJ thc appellant was alone in the shop. If the rape took place outside the shop again it i5 suspiciouc that no blood stains were present and no body heard or saw anything in this busy area and once we accept the proposition that the rape might have occurred outside the appellant's shop it means that it could have been cornrdtted by any passe! by a part from the appellant which again raises further doubt a$ to the identity of the rapist.

19.In addition, the DNA sample did not match and the victim's blood r4'as not iound on the appellant or his clothes w'hich would have bcen expected if hc had raped her and she rvas heavily bleeding especially as hc h'as irrmediately taken into.ustody beforc the FIR was even lodgcd which lact again raises doubt that the appellant was the rapist. Evcn in cross examiffrtion PW 8 Raja IntiBar Ahmed who was the lO concedes that, "apart ftom the 5,164 statement (of the victim) thele is tro evideme again8t the a(.used,"

20.It is a cardinal principle of criminal jurispruden.e that the prosecution must prove its case beyond a reasonable doubt and it is not for the aocused to disproye the case against him i{'ho may take any anrl as many delenscs as hc likes to the alegations against him as the onus rests on the prosecution to prove its case beyond a reagonat le doubt as was held in the c'ase of Muhammed Shah V State (2010 SCMR 1009) and iI there is an)' doubt in the prosecutions case the benefit must Bo to the accused. As was held in the case of Tariq Pervez V The Stale (1995 SCMR 1345) that if there is a single cir(umstan(e, which creates reasonable doubt in a prudent mind about thc guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of light. Such principle was recently reiterated by the Supreme Court in lhe case of Abdul Jabbar V State (2019 5( \4R I29).

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21.Thus, bascd on our reassessment of the evidence Ior the reasons mentioncd above the prosccution has not been able to prove its case against the appellant Ior the offense for which he has been charged belond a reasonable doubt and as such the appellant is acquitted of the charge by extending him the benefit oI the doubt. The appeal is therefore allowed and the impugned judgment is 8et aside with the conlirmation re(erence being answered in the negative with the result that the appellant shall be released unless w-antcd in any other custody case.

22.The appeal and conJir:mation leference stand disposed of in the above terrns.

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