WALI MUHAMMAD S/O HAJI JATOI (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE HIGH COI]RT OF SINDH. KARACHI

Criminal Jail Appeal NO. 74 of 2021 Conf. Case NO. 05 of 2021

Wali Muhammad

Vs

The State

HIGH COURT OF SINDH

f ComDosition o Benc'h D.t].

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi 't

Date(s) ofhearing: 2s-08-2022

Decided on : 30-08-2022

Judgment approved for Reporting Yes

C ERT IFICATE.

Certified that the judgment t/Order is based upon or enunciates a principle of lau, +/decides a question of law which is of first impression/distinguishes/. Over-rules/ revelses/explains a previous dec ision.

{ Strike out whichever is not applicable.

NOTE: - (i) This slip is only to be used when some action is to be taken.

(ii)If the slip is used, the Reader must attach it to the top ofthe first page ofthe judgment.

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting.

(iv)Those directions which are not to be used should he deleted.

IN THE HIGH COURT OF SINDH AT

KARACHI

Criminal Jail Appeat No?9 nozt

Wali Muammad S/o Haji Jatoi at present confined in Central Prison at Karachi Appellant

Versus

The State Respondent

Crime No: 6212018 PS Manghopir, Karachi

US:376 PPC

CRIMIN ALA PPEAL UN DER SECT ION 410 Cr.P.C.

Being aggrieved and dissatisfied by the Judgment dated 27 .01.2021 passed by the court of Leamed XTH Additional Sessions Judge, West at Karachi in Sessions Case No. 53g/201g, the Appellant approached this Hon'ble Court with the prayer to call for record and proceedings of Sessions Case No. 539/2}lg from the Court of Learned XTH Additional Sessions Judge, West at Karachi, and after hearing the case of the Appellant be pleased to set-aside the impugned Judgment, on consideration of the following facts and grounds:

FACTS

Brief facts of the prosecution case as narrated in the FIR are that on 24.02.2018 Complainant Mudasir Hussain S/O Chaudhary Abdul Hameed approached at p.S Manghopir, Karachi West and verbally supported the matter that on 16.02.201g, at about 0g:00 p.m, his daughter namely Aqsa went to the house of her neighbors namely Wali Muhammad for doing school home work, wherefrom she was retumed back at about l2:00 p.m and seems frightened but she did nor

I' IN THE COUI(T OF ADDITIONAL SESSIONS IUDCE.X

KARACHI WEST

ruo: x/eol/w{ /2021, Karachi.27 th Ianuarv.2021

To, Thc Honorable

INWARD TO

Registrar BPANCH High Court of Sindh DATE 0 Karachi TIGH COUR] O 5lN AI KARACFI

Throush the Ho orable District and Sessions Iud e. Karachi West J SU B IEC'I:. REFERENCE U/ 374 CR.P.C FOR CONFIRMAT toN oF DEA'I'il 't CFTITENITE'AIA,I DNCII IN CECCINNC TASF NN E2() /?nl o r'rtIn STATF VS l^/AI t MIII{AMMAN D Nn (? /1nl Q lll s 27A p P ('

. P.S. MANGHOPIR. KARACHI)

Respected Sir

I have the honour to submit that vide iudgment datcd 27.01.2021, passed by the undersigned in the above noted Sessions Casc, whereby accused Wali Muhammad S/o Haii Iatoi convicted U/S 376(3) PPC and awarded death sentence as well as pay fine of Rs. 5,00,000/- [Rupccs Five Hundred Thousand), therefore; the sublect iudgment alongwith R&Ps of S.C No. 538/2018 are submitted herewith under section 374 Ctr.P.C fitr confirmation of death sentence as required by law. "'N (GADA HUSSy'IN ABRO) AqDL. SESSIONS IUDGE-X

. xnn.fcHt wnsr t+ Enclosed:

R&Ps of SC No.53B/2018 (02-parts) Port I Diory sheet A to !

Pag e No. ol lo l;lL Port-ll I Poge No. ol ta 6o8

t OFFICE OF THE DISTRIC T AND SESSION IUDGE I(ARACI]I W[S'i No.A/W / jy1 /2027, Karachi D ata d12.,8 -0'l-'llt J t Submitted with comPlilnents to t.he l,e it rnctl ll cg s t I' t' Honorablc High Court ofSindh, Karachi.

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t District & Sessio ns ludgc, / I(araclriWcst

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IN THE HIGH COURT OF SINDH, KARACHI

I

Criminal Jail Appeal No.74 of 2021.

Conf. Case No.05 of 2021.

Prcsort:

Mn lustice Mohamrnad Karim Khan Agha NIr. lusticc Zulfiqar Ali Snngi,

Appellant: Wali Muhammad S/o. Haii Jatoi through Mr. Muhammad Rahib, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh.

Date of hearing: 25.08.2027.

Date of Announ(ement: 30.08.2022.

IUDCMENT

MOHAMMAD KARIN{ KHAN AGHA. I:- The a ppellant Wali Muhammad S/o. Haji Jatoi has preferred the instant appeal against the ludgment dated 27.01.2021 passed by Learned Additional District & Sessions ludge-Xth Karachi West in Special Case No.538 of 2018 arising out of Crime No.62 of 2018 U/s. 376 PPC registered at P.S. Manghopir, Karachi West wherebv the appellant was sentenced to death subiect to confirmation by this court and pay fine of Rs.500,000/- (Rupees five hundred thousand) to the victim in vieu,of section 545 sub-section (a) ancl (b) Cr.P.C. In case of default in payment of fine, the accused was ordered to undergo R.l. for a period of six months more.

2.The brief facts of the prosecution case as per F.I.R. are that on 24.02.201,8, complainant Mudasir Hussain S/o. Chaudhary Abdul Hameed approached at PS Manghopir, Karachi West and ,,erbailv reported that on 16.02.2018 at about 08:00 p.m. his daughter namelv Aqsa went to the house of his neighbour namelv Wali Muhammad for doing school homework, wherefrom she returned at about 12:00 p.m. antl seemed frightened but she did not disclose anything to anyone. ', On

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21.02-2078, he had taken his daughter to Peer Baba at Surjani Town for dam (insufflate), where Peer Baba told him that his claughter had nothing and advised him to take her home and enquire from her whether some incident has befallen her. Then, he had taken his daughter home, where his daughter Aqsa disclosed to her mother that when she went at the house of Wali Muhammad for doing school work, at about 11:45 p.m. the said Wali Muhammad caught hold of her and put his hand on her mouth and took her in room, where he removed her Shalwar and had committed Zina with her and issued threats to her that not to tell anvone about the present incident, otherwise, he would commit her murder. It is further narrated by complainant that he went to meet with Wadera (landlord) of his village namely Bashir, who told him that he would get information but he dicl nothing, hence he lodged FIR.

3.After completion of investigation I.O. submitted charge sheet against the accused person to which he pleaded not guilty and claimed trial.

4.The prosecution in order to prove its case examined 09 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him and claimed false implication on account of a property dispute r,r'ith the complainant. He did not give evidence on oath and did not call any DW in support of his defence case.

5.After hearing the parties and appreciating the evidence on recorrl the trial court convicted the appellant and sentenced him as mentionecl earlier in this judgment, hence, the appellant has filed this appeal against his conviction.

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 27.0'1.202'l passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant is completelv innocent and has been falsely implicated in this case by the complainant in order to usurp his property; that thete was an 8 dav delaya Mnhan'^or An) /

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in lodging the FIR which allowed the complainant to cook up a false case against him; that the eve witness victim's evidence has been contradicted b), other witnesses evidence and cannot be salely relied upon; that important witnesses wllo could have corroborated the victim's storv were not called bv the prosecution; that the appellant's DNA test was negative and that for any or all of the above reasons the appellant should be acquitted of the charge bv extending him the benefit of the doubt. In support of his contentions he placed reliance on the case of Ashiq Ali and 6 others v. The State and another (2018 P Cr.LJ 108a).

8.On the other hand learned APG appearing on behalf of the State and who also represented the interests of the complainant has fullr, supported the impugned judgment. He has contended that in rape cases a delay in the filing of an FIR is not fatal to the prosecution case; that the victim's eye witness evidence is reliable and confidence inspiring and that she has correctly identifiecl the accused as the person who raped/sexuallv assaulted her and that tye can convict on her evidence alone; that tlrt victim's evidence of rape has been corroborated bv the medical evidence; that DNA evidence is not essential to lead to a conviction in rape cases and as such the appeal should be dismissed and due to the heinous nature of the crime the confirmation reference should be ansra,,ered in the affirmative. In support of his contentions he has placed reliance on the cases of Mst. Dur Naz and another v. Yousuf and another (2005 SCMR 1906), Mobashar Ahmad v. The State (2009 SCMR 1133), Farooq Ahmact v. The State (PLD 2020 Supreme Court 313), Zahid and another v. The State (2020 SCMR 590) and Shahzad alias Shaddu and others v. The State (2002 SCMR 1009).

9.We have heard the arguments of the learned counsel fot the parties, gone through the entire evidence which has been read out by the learnetl counsel for the appellant, and the impugned iudgment with the able assistance of the parties and have considered the relevant law incluciing the case law cited at the bar.

10.Before proceeding further we are acutelv aware that this is a ver1, heinous offence whereby a minor girl has been raped in a most brutal manner which crime offends the very core of society and humanitv

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however, as ]udges we have to put such aspects aside and decide the guilt or innocence of the appellant bv dispassionately assessing the evidence before us and coming to a decision which is supported by the evidence on record and the governing law and not by our emotions or own personal feelings. We can onlv be guided by the evidence and the law and nothing else. In this respect we refer to the case o{ Azeem Khan V Mujahid Khan (2016 SCMR 274) which held at P.290 Para 32 as under;

" Similarly, mere heinous or gruesome nature of crime shnll not detract the Court of lau in nny manner f'rom tlu due course to judge and make tfu appraisal of eddence in a laid dou,n manner and to extend the beneft of reasonable doubt to nn accased person being indefeasible and inaliennhle right o.f an acr:'$ed. ln getting inJluence front the nature of the cime and other extraneous consideration might lead the ludges to a patently urong conclusion. In that et'ent tlrc iustice would be casualty".

11.This position was reiterated in the later case of Naveed Asghar v State (PLD 2021P.600) in the following terms;

"The ruthless md ghastly murdzr of foe persons is a crime of heinous nature: but the fnghtful nature of crime sho d not blur the eyes of justice, allouing emotions triggered by tfu horifying nature of the offence to prejutlge the accused. Cases are to be decided on the basis of euidence and euidence alone tnd not on the basis of sentiments and emotions. Gnrcsome, heinous or bnttal nature of tlrc offence may be reletrant at the stage of awarding suitable punishment after cont,iction; but it is totally irreleuant at tlle staSe of appraising or reappraising the et idence attailable on recortl to determine guilt of the accused person, as possibility of an innocent person hazting been wrongly inttolued in cases of such nature cannot be ruled out. An ncased person is presumed to be innocent till the time he is protten guilty beyond reasonable doubt, and this presumption o.f his innocencc continues until the prosecution succeeds in protting the charge against hint beyond reasonable doubt on the basis of legally arlmissible, confdence inspiing, trustuorthy and reliable euidence. No matter hou, heinous the crime, the constitutional gnrontee of .fnir trial under Article -l0A cannot he taken auny .from tlrc nctused. It is, therefore, duty of the court to assess the prohatizr z,alue koeight) of ettery piece of ettirlence mailable on recortl in accordnnce ruith the settled pinciples of npprecintion of etidence, in a dispassionate, systematic and structured manner utithout being infuenced hy tfu nnhtre of the allegations. Any tendency to strain or stretch or lnphazardly apprecinte eaidence to reach a desired or popular decision in a case must be scrupulously auoided or else highly deleterious reaits seiously afecting proper ndministration of ciminal justice utill folloto. lt may be p?rlinenl to underline here thql the pinciples of fnir lrnl

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hape nortr been guaranteed as n Fundamentnl Right under Article 70A of the Constitution and are to be rearl as sn I integral part of etery sub-anstittttionnl legislatiue instrument tlnt denls with determinahon of ciuil rights and ohligations o.f, or oiminnl charge against, any person." .

"12. After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(a)In rape cases usually a fer.r' days delay in lodging an FIR is not fatal to the prosecution case especiallf if the delav has been explained as in our societv often on account of honor anl1 modestt' such slight delay does occur in reporting such crime to the police. In this respect reliance is placed on Zahid V State (2022 SCMR 50). In this case however the FIR lvas lodged after a delav of 8 davs antl although the complainant has attempted to explain this Iong clelar. no witness u,hich he mentioned who could support his explanation such as the Peer Baba u,ho he took his daughter to or the landlorcl Bashir gave evidence to corroborate his storv which in our vier, puts us on caution regarding the prosecution case especiallv u'hen he registered his NC at the IlS he did not even name the accusecl as the person who committed the crime.

(b)In this case the star prosecution witness is PW 3 Aqsa Mudassar Hussain (Aqsa) who was 11 years of age at the time oi the incident and is the victim. According to her evidence she anrl her sister Afshan were stud),ing together with the daughter of the accused Saima at the accused's house on 16.02.2018. Her brother antl mother had also accompanied her and her sister to the accuserl house whilst she studied in the court yard whilst the elclers were in the room. Studv was completed at 12 midnight and thereafter her mother and the wife ol the accused had tea whilst she Saima antl other children started cleaning the court yard and the kitchen. Whilst Saima and her sister were cleaning the kitchen the accusecl put his hand on her mouth and dragged her to a dark Pl66s 611.1 also put a cloth in her mouth. The accused then tied her hands ancl untied her shalwar. Thereafter he pressed her chest and later on he put his male organ at her private parts. Meanwhile her sister anti Saima also came and the accused released her and she tied her shalwar but did not tell anv body about the incident. The dav after' the incident she told Saima and Sairna's mother rvho told her to keep quiet. She then became ill and nas taken to Peer Baba who told her parents that something was wrong with her. The next dat, she told her mother who then told her father who approached thc wadera of the village (Bashir) for help who failed to do anything rvhereafter she approached the police, she was medicallv examined ancl then an FIR was lodged. She also states in her evidence that the house where she was raped/sexually assaulted had 2 rooms. PIV { Saamia the Dr. who medically examined Aqsa opined Aqsa liacl been raped/sexuallv assaulted as did an exhibited report of a special medical board. The chemical report also found that the shaln,ar worn by Aqsa contained semen although this shalwar was

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recovered much later after the incident. Taking the above evidencc into account we find that Aqsa was subiect to sexual assault.

The question however arises who assaulted Aqsa and where she was assaulted.

If we find the evidence of Aqsa to be reliable, trust worthv and confidence inspiring as to who sexuallv assaulted her and where the sexual assault took place we can convict on her evidence coupled with the medical evidence alone even without matching DNA. In this respect reliance is placed on the case of Farooq Ahmed (Supra).

We however have doubts as to the evidence of Aqsa in respect oI who raped her and where she was raped as follows especiallv keeping in view the detay of 8 davs in lodging the FIR;

(a)PW 4 Dr. Saamia rvho was the WMLO who as discussetl above found that Aqsa had been sexually assaulted stated as under in her evidence;

"As per history of the girl some unknoun person entered in lwr home nnd assaulted her"

On the aspect by whom and where Aqsa was sexuallv assaulted this PW who had no axe to grind with Aqsa and supported her allegation of rape/sexual assault antl who had no enmity or ill will towards Aqsa and had no reason to give false evidence against Aqsa contradicts Aqsa's own evidence of who and where she was raped/sexualll, assaulted which tends to caste sonte doubt on her evidence on this aspect of the case.

(b)It was the complainant who took the police to the lvardat where the memo of wardat and photo's were taken but as per the evidence of Aqsa and his wife he was not even there on that fateful evening so how could he knou, where the alleged rape/sexual assault had taken place.

(c)The cloth shoved down Aqsa's throat and the material used to tie her hands was not recovered at the wardat.

(d)According to Aqsa's own evidence she, Saima and other children started cleaning the court yard and the kitchen. Whilst Saima and her sister (Afshan) were cleaning thc kitchen the accused put his hand on her mouth ancl dragged her to a dark place and also put a cloth in her mouth. This begs the question as to how Saima ancl her: sister Afshan ciid not see her being dragged off especialh, as thev were all in the kitchen which was not very big.

(e)The memo of inspection of the wardat and photo's of thc, house along rvith the evidence reveal that the accused house was only 120 square feet, consisting of a court varr{ and trvo rooms one of which was a kitchen/cun.r washroom. Since Aqsa and Saima's mother were havinll tea in one room and the wardat is shown to be the kitchen/cum r,r,ash room t'here Saima and her siste2

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Afshan were also cleaning it is hard to believe that Aqsa could had been raped/sexually assaulted in the same place where the other two girls were cleaning.

(f)Again according to Aqsa's own evidence the accuserl pressed her chest and later on he put his male organ at her private parts. Meanwhile her sister and Saima also came and the accused released her and she tied her shalwar. From her own evidence it is quite apparent that her sister Afshan lvas at least a partial an eye lr'itness to the incident who saw the accused with Aqsa in a compromising position but Afshan was not called to givtr evidence without explanation and as such some of tl.rc potentially best evidence in this case was withhelcl/ not produced by the prosecution to its detriment.This begs the question whether her ort'n sister would have supported the prosecution case? Understandablv Saima the daughter of the accused would be unlikell, 16 si1,., evidence against her father if the allegation were true.

(g)PW 5 Asia N4utlassar rvho was Aqsa's motlrer stated irr lrer' evit{ence dlat on the fateful evening she and all of her children inclrrding Aqsa rvent to the accused horrse for Aqsa to studv. At that house Saima was prest'nt along with liel t mother, brother anci 3 sisters. Thus. on that fateful eveninri there were 10 to 12 persons including the accusecl in a small 2 room house with a court yard. It does not appeal to logic, commonsense or reason that the accused u,ould attempt to rape/sexually assault Aqsa with so manv people ir.r such close proximity who could have caught him in the act at anv moment. Even if Aqsa had made a slight scream lrefolc the cloth was allegedly placed in her mouth the rest of the persons in the small house n'ould have been alerted to thr incident. Even the accused's own wife and Aqsa's mother' rvere in the next room drinking tea. PW 5 Asia Nlullassar', Aqsa's mothers evidence also does not appear to square ull with dre evidence of Aqsa as she states that Aqsa and th(, other children lr,ere in the court vard and not in the kitchen l/et Aqsa in her own evidence states that she, Saima and lrer' sister Afshan were in the kitchen. It also seems odd that anv onc would be cleaning the courtvard at 12 midnight anrl that the Aqsa's mother and Saima's mother wolrltl L.rc sipping tea at 12 midnight $,hen the t,oung children harl to go to school tl.re next day. Aqsa's mother also states irr l.rer evidence that the next day Aqsa rvent to school and then thev took her to a doctor. Who was this doctor? why u,as ho not examined? and why did Aqsa not tell him about thc sexual assault and where she was feeling discomfort?

(h)No semen r.r,as found on the vaginal snabs of Aqsa. Semerr was onlv found on her shalwar which was handed to thc police days after the incident by her mother. The DNA report did not lir.rk the accused to the sexual assault of Aqsa. Even the chemical and DNA reports were sent after a delar, of three davs without any explanation and there is rrrr evidence of safe custodv drrring tlris perio,-la

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(i)Aqsa had a motive to falselv implicate the appellant at the behest of her father the complainant. The appellant has maintained in his defence throughout in his cross examination of the complainant and his 5.3.12 Cr.PC statement tliat there was a dispute between himself ancl the complainant over the property in which the accusctl was residing which aspect was never investigated by the IO and as such this defence cannot be dismissed out of hand especially as according to the accused other people have now moved into his propertv. In addition an alternate theory of where and who raped/sexually assaulted Aqsa has also come on record through PW .1 Dr.Saamia who was an independent witness rvhose evidence cannot be dismissed out of hand.

O Thus, for the reasons mentioned above we find that there are doubts as to the identitf, of the person rt,ho raped/sexually assaulted Aqsa and where the actual rape/sexual assault took place and even the rlate of tlre rape/sexual assault.

13.It is a well settled principle of law that the prosecution must prove I its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Supreme Court has observed as follows:-

"lt is settled la';l, that it is not necessary that there slwuld be many circumstances creating doubts. If there is a single circumstance, ruhich creates reasonable doubt in a prudent tttind about the guilt of the accused, then the acansed will he entitled to the beneft hot as a matter of grace and concession but as a mntter of ight."

14, For the reasons discussed above we find doubt in the prosecution case and bv extending the benefit of the doubt to the appellant he is acquitted of the charge, the impugned judgment is set aside, his appeal is allowed and the appellant shall be released unless wanted in anv other custody case and the con{irmation reference is answered in the negative.

15.The appeal and conJirmation reference stand disposed of in the above terms.

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