*
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAUVI
MR. JUSTICE MUHAMMAD All MAZHAR
MR. JUSTICE SHAHID WAKED
JAIL PETITION NO. 300 OF 2022
(On appeal against the judgment dated
17.05,2022 passed by the Lahore High Court,
Bahawalpur Bench in Criminal Appeal No.
215/2021 and criminal Revision No. 109/2021)
Saghir Ahmed
VERSUS 
Petitioner(s)
The State et c
Respondent(s)
For the Petitioner(s):
For the State:
For the Complainant:
Date of Hearing:
Malik Muhammad Aslarn, ASC
Syed Rifaqat Hussain Shah, AOR
Mirza Muhammad Usman, OPG
In person
28.11,2022
JUDGMENT
SAYYED M ZAHAR All AKBAR NAQVI, J.- Petitioner along with three co-
accused was tried by the learned Additional Sessions Judge, Fortabbas
pursuant to a case registered vide FIR No. 135/2020 under Sections
377/506-B/337H(ii)/377B/34 PPC at Police Station Maroot for committing
sodomy with son of the complainant. The learned Trial Court vide its
judgment dated 22.04.2021 while acquitting the co-accused, convicted the
petitioner under Section 377 PIt and sentenced him to ten years RI along
with fine of Rs.200,000/ or in default whereof to further undergo six
months SI. In case of realization of fine, the same was ordered to be given
to the victim as compensation Benefit of Section 382-8 Cr.P.C. was also
extended in his favour. In appeal the learned High Court while maintaining
the conviction of the petitioner under Section 377 PPC, reduced the
Jail Petition No. 300/2022 
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quantum of punishment to five years RI. The amount of compensation and
the sentence in default whereof and the benefit of Section 382-B Cr.P.C.
was also maintained. Hence, the instant jail petition seeking leave to
appeal.
2.
The prosecution story as given in the impugned judgment
reads as under:-
"2. The prosecution story as portrayed in the FIR lodged on the
complaint of Nasir Mehmood, complainant (PW-1) is to the effect
that on 08.042020 at about 07.40 pm, when Munecb-ur-Rehman,
complainant's son, aged about 9/10 years old who had gone to the
shop of the accused to get repair the mobile, did not return, the
complainant along with Zaheer Ahmed, Muhammad Abid went to
his shop and found the shutter of shop more than half down while
the light on, son of the complainant weeping and witnessed
underneath the shutter, the accused committed sodomy with him,
who upon seeing them, pull down the shutter and locked it and
thereafter he called his relatives through telephone and after a
while, Muhammad Asif, Muhammad Khalid and Naseer Ahmed
armed with pistols reached there, asked the accused not to worry
upon which, the accused opened the shutter and started aerial
firing while loading his pistol. The accused persons threatened
them to kill and accused Asif etc took the accused Saghir Ahmad
and fled away."
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court, In order to prove its case the
prosecution produced as many as nine witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. He did not appear in his own defence
under Section 340(2) Cr.P,C. However, he produced copy of FIR No.
115/2020 under Sections 452/148/149 PPC at Police Station Maroot as
Exh.DB in his defence.
4.
At the very outset, learned counsel for the petitioner
contends that there are glaring contradictions and dishonest improvements
in the statements of the eye-witnesses, which have escaped the notice of
the learned courts below. Contends that the medical evidence in the shape
of medico legal report as also the report of the Forensic Science Agency
does not support the ocular account. Lastly contends that the reasons given
Jail Petition No. 300/2022 
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by the learned High Court to sustain conviction of the petitioner are
speculative and artificial in nature, therefore, the impugned judgment may
be set at naught.
5.
On the other hand, learned Law Officer assisted by the
complainant ! in person vehemently opposed the petition. It has been
contended that the prosecution witnesses had no enmity with the
petitioner to falsely implicate him in the present case and their testimony is
in line with the medical evidence, therefore, the petitioner does not
deserve any leniency from this Court.
6.
We have heard learned counsel for the parties at some length
and have perused the evidence available on the record with their able
assistance.
It is the case of the prosecution that on 08.04.2020 at about
07.40 pm, the son of the complainant namely Muneeb-ur-Rehman aged
about 9/10 tears went to the shop of petitioner Zaheer Ahmed to get the
mobile phohe repaired. However, he did not return in time, which
prompted the complainant to go to the shop of the petitioner. When the
complainant along with other eye-witnesses came at the shop of the
petitioner, they saw that shutter of the shop was down more than half and
light was on. When they saw underneath, the petitioner was committing
sodomy with the son of the complainant. There is no denial to this fact that
the victim vitas medically examined on the same day by Dr. Muhammad
Zeeshan, Medical Officer (PW-9). The medical report, which is available at
page 84 of !the paper book, clearly states that the "child has not yet
defected, nor took shower or clean the area after the act. On general
physically eamination, no signs of physical trauma noted on body." The
doctor further observed that "there is mild redness around the anal
sphincter. No bruise, no swelling, no abrasion or laceration noted on skin
around anal sphincter." The victim neither complained of pain on walking or
defecation. the doctor took two external and three internal anal swabs and
sent the same to Forensic Science Laboratory for DNA analysis. The Punjab
Forensic Science Agency gave its report on 27.10.2020 but it did not give
Jail Petition No, 300/2022
A
any definite finding and the report just denotes that "the victim may have
been victimized with the act of sodomy." In this view of the matter, the
report of the Forensic Science Agency can be interpreted in two ways, one
in favour of. the petitioner and second against him. However, it is a well
settled principle of law that if two views are possible on the evidence
adduced in the case, one indicating the guilt of accused and other to his
innocence, the view favourable to the accused is to be adopted. Reliance is
placed on Shahid Orakzai Vs. Pakistan Muslim League (2000 SCMR 1969).
jjz Hussain Vs. The State (2002 SCMR 1455), lftikhar Hussain and others Vs.
The State (2004 SCMR 1185) and Muhammad Zubair Vs The State (2010
SCMR 182). Mere heinousness of the offence if not proved to the hilt is not
a ground to 'punish an accused. This is an established principle of law and
equity that it is better that 100 guilty persons should let off but one
innocent person should not suffer. As the preeminent English jurist William
Blackstone wrote, "Better that ten guilty persons escape, than that one
innocent suffer" Benjamin Franklin, who was one of the leading figures of
early American history, went further arguing "it is better a hundred guilty
persons should escape than one innocent person should suffer." The above
report of the Forensic Science Laboratory is sufficient to cast a shadow of
doubt on the prosecution case, which entitles the petitioner to the right
of benefit of the doubt. It is a well settled principle of law that for the
accused to be afforded this right of the benefit of the doubt, it is not
necessary that there should be many circumstances creating uncertainty
and if there is only one doubt, the benefit of the same must got to the
petitioner, this Court in the case of Mst. Asia Bibi Vs. The State (PLO
2019 SC 64) while relying on the earlier judgments of this Court has
categorically held that "if a single circumstance creates reasonable doubt
in a prudent mind about the apprehension of guilt of an accused, then
he/she shall be entitled to such benefit not as a matter of grace and
concession but as of right. Reference in this regard may be made to the
cases of Twig Pervaiz v. The State (1995 SCMR 1345) and Avub Masih V.
The State (PLO 2002 SC 1048)." The same view was reiterated in Abdul
bbar vs. State (2019 SCMR 129) when this Court observed that once a
Jail Petition No. 300/2020 
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single loophole is observed in a case presented by the prosecution, such as
conflict in the ocular account and medical evidence or presence of eye-
witnesses being doubtful, the benefit of such loophole/lacuna in the
prosecution's case automatically goes in favour of an accused. The
conviction must be based on unimpeachable, trustworthy and reliable
evidence. Any doubt arising in prosecution case is to be resolved in favour
of the accused. However, as discussed above, in the present case the
prosecution has failed to prove its case beyond any reasonable shadow of
doubt.
7. For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned judgment. The petitioner is
acquitted of the charge. He shall be released from jail forthwith unless
detained/required in any other case. The above are the detailed reasons of
our short order of even date.
Islamabad. the
28th of November, 2022
Approved For Reporting
Ilpui•r.ii.i
