Full Judgment Text & Judicial Ruling

2026 Y L R 50 [Islamabad] Before Mohsin Akhtar Kayani and Arbab Muhammad Tahir, JJ Usman Ibrar and others---Appellants Versus The State and others---Respondents Criminal Appeals Nos. 169, 139, 149 and 184 of 2022, decided on 21st June, 2023. (a) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Digital evidence confirming the occurrence---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping the off their clothes, extending life threats and committing obscene acts with the two victims---Record showed that the entire case rested upon the video evidence stored in two USBs---Forensic analysis through the use of metadata showed that no software or tool was used or identified in the submitted four video files to perform video editing or tampering---Moreover, it was also identified during frame analysis of the video clips that there was no edition or deletion in the videos---Said witness also conducted spectrogram analysis of audio and video clips and he could not identify any abrupt changes in the pitch which proved the genuineness of audios of those video files---Said witness also conducted voice authentication analysis of audios received in USB with the audios of the video files and found the audio file of accused/appellant matched with the audios in the video files which depicted strong evidence and gave the verbal scale of 3.22---Audios of other accused persons in the video files were of short length and analysis could not be done because of short length of audios---Said witness also received letter for forensic analysis and retrieval of data stored in three mobiles, however, during analysis it was found that a phone was reset, further it was identified to be at configuration stage which depicted that phone was not used after it was reset last time---Whereas, other mobile phone was found password protected and the protection could not be exploited without risk of loss of data---Said witness also conducted the forensic analysis of mobile, but the said video was not found, whereas, the another mobile phone showed error in booting process and a phone could not be processed due to battery and display issues---While considering the cross-examination of the technical expert of prosecution witness, the defence was unable to recover any aspect of technical failure or objection in the forensic analysis report prepared by said witness of the audio and video forensic in the case---Court was of the view that the prosecution in order to discharge the burden of digital electronic evidence produced the expert, whose expertises were acknowledged during the course of cross-examination as well as his status being an expert was not denied---Transcript of videos containing videos of 53 seconds, 28 seconds, 45 seconds and 533 seconds, confirmed the ordeal by two victims at the hands of five accused persons, confirming the conduct of all the appellants in unequivocal terms---In the present case, the technical analysis report conducted to determine how many people had seen and shared the video attached with the trend of accused confirmed that the said trend was shared by 558 accounts with 533 original tweets, whereas the hashtag of accused was shared by 3487 accounts with 721 original tweets---Hence, it showedthat approximately the trend had been watched and shared more than 100k (100,000) times---In the present case, the appellants had raised the argument that since the alleged offence was committed in a private place, resultantly it could not be said to be viewed by the public and therefore did not meet the essential elements of S.354-A, P.P.C---However, that argument was not well-founded, as the said element required only the commission of offence to be viewed by the public, regardless of wherever it was committed---Such facts confirmed that both the victims were harassed, humiliated and stripped off, which was seen by more than a hundred thousand people, and in this modern era any viral video content was to be considered within the meaning of public view owing to the changing digital times of modern age---Appeal against conviction was dismissed, in circumstances. Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982; The State and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Qadir Shah v. The State 2009 SCMR 913; Karam Ali v. State 1989 PCr.LJ 1453; Siddique Masih v. State 2012 MLD 824; Saifullah Khan v. State PLD 2005 Pesh. 128; Karam Dad v. State PLD 2008 Lah. 308; Muhammad Abdullah v. The State through Abdul Qudus 2013 MLD 395; Zulfiqar v. The State 1996 PCr.LJ 620; Hassnain Ali v. The State 2004 PCr.LJ 1972; Wahid Bux v. Sub-Inspector of Police, P.S.Mirpur Mathelo 2011 PCr.LJ 717; Rakhsana Yasmeen v. Muhammad Din 2000 YLR 2081; Chairman, Pakistan Railway, Government of Pakistan, Islamabad v. Shah Jehan Shah PLD 2016 SC 534 and Swaran Singh s case AIR 2008 SCW 5758 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Test identification parade---Scope---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping them off their clothes, extending life threats and committing obscene acts with the two victims---In the present case, victims were able to identify three accused during the identification parade and assigned them with specific roles related to the crime in which victim had identified accused who had not objected to that identification parade and he had been assigned with the specific role of being stationed next to the main door responsible for the act of opening and closing it---Accused at the same time confirmed his presence and referred the role of appellant---Similarly, other victim also confirmed the role of two accused persons and she had stated that one of the accused persons was witnessing the entire scene and criminal act of other co-accused including appellant---Accused had not objected to this aspect, rather confirmed his presence in the incident---Other accused has not raised any objection on the identification parade---Another victim had also given a similar statement against accused---Victim in her statement confirmed the role of accused who had made the video along with his description---All of the said reports supported the existing evidence on record and confirmed the acts of the appellants, who had been duly identified by the victims in three separate identification reports, demonstrated their specific roes, hence there was no doubt qua the role of each appellant if seen in juxtaposition with the statement under S.164 Cr.P.C of the victims read with the identification parade report, in which three of the appellants were duly identified---Appeal against conviction was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Call Data Record on the file supporting the prosecution case---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping them off their clothes, extending life threats and committing obscene acts with the two victims---Call Data Record of all the accused persons and victims showed that all the accused persons and victims were present at the place of occurrence at the relevant time---Such fact could be used as a corroborative piece of evidence to the extent of crime scene location and presence of all the accused and victims during the same time at the place of occurrence---Appeal against conviction was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Recovery of incriminating articles---Reliance---Scope---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping them off their clothes, extending life threats and committing obscene acts with the two victims---In the present case, the recovered items, as seen in the video evidence from the place of occurrence, including a painting, decoration piece, and a piece of rug, were taken into possession by the Investigation Officer in the presence of witnesses---Said recovered articles were duly seen in the videos and rightly collected by the Investigating Officer for the purposes of confirmation of the place of occurrence---Another piece of evidence was the shirt of the victim and sweater of the other victim worn by them at the time of incident, collected through recovery memo. as seen in the videos---Said piece of evidence also had to be seen in corroboration with the primary evidence of the captured video along with the photogrammetry test and audio recognition of the appellants---Appeal against conviction was dismissed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Hostility of the witnesses---Effect---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping them off their clothes, extending life threats and committing obscene acts with the two victims---Record showed that both the victims while appearing in witness box during trial resiled from their original stance with a common statement and were declared hostile---Both the victims, who even though were declared hostile, but their few answers clearly confirmed the incident and no favour could be extended to the appellants by their denial of the incident as the corroborative evidence of identification parade, statement under S.164, Cr.P.C., along with forensic evidence confirmed the role of each appellant---Appeal against conviction was dismissed, in circumstances. Dr. Javaid Akhtar v. State PLD 2007 SC 249; Muhammad Suleman v. State PLD 2007 SC 223; Zarid Khan v. Gulsher 1972 SCMR 597; Muhammad Sadiq v. State 1984 SCMR 465; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Niaz Ahmad v. The State PlD 2003 SC 365; Khurshid Ahmed v. State 1983 SCMR 513 and Sarfaraz Gul v. State PLD 2004 SC 334 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 354-A, 342, 395, 375-A, 114, 506(ii), 509, 384, 377-B, 412 & 34---Criminal Procedure Code (V of 1898), S. 164---Outraging the modesty of a woman, wrongful confinement, dacoity or robbery committed by five or more persons, gang rape, abettor present when the offense was committed, criminal intimidation, insulting the modesty of a woman or causing sexual harassment, extortion, sexual abuse and trafficking of children, dishonest receipt or retention of property stolen during a dacoity, common intention---Appreciation of evidence---Statements of victims---Reliance---Scope---Accused were charged for detaining a girl and a boy in an apartment while forcibly stripping them off their clothes, extending life threats and committing obscene acts with the two victims---Both the victims got recorded their statements under S.164 Cr.P.C; the statement of victim was recorded by Assistant Commissioner and other victim s statement was recorded by Sub-Divisional Magistrate---Both the victims provided each and every detail and description of the occurrence of the crime, the time, mode and manner in which each of the appellants had committed the crime along with the specific role of each appellant in detail---Both those statements were recorded by Magistrates who were also cross-examined at length on different technical aspects and nothing fruitful was achieved by the defence---Both the Magistrates while recording the statements observed the binding procedure with precaution in terms of S.364, Cr.P.C., read with S.164, Cr.P.C., and S.14 of Anti-Rape (Investigation and Trial) Act, 2021---In the present case, the requirements under S.164, Cr.P.C., viz a viz S.14 of Anti-Rape (Investigation and Trial) Act, 2021, were complied with, therefore statements of both the victims would be considered final and conclusive against the appellants---Appeal against conviction was dismissed, in circumstances. Sohail Nasir for Appellants (in Criminal Appeal No. 169 of 2022). Raja Rizwan Abbasi for Appellants (in Criminal Appeal No. 139 of 2022). Qaiser Imam Ch., Ghulam Yasin, Imran Nawaz Saduzai and Shayan Abbasi for Appellants (in Criminal Appeal No. 149 of 2022). Qazi Adil Aziz and Junaid Ahmad Qureshi for Appellants (in Criminal Appeal No. 184 of 2022). Khadija Ali, State Counsel, Akhtar S.I, P.S Golra Sharif and Shafqat Inspector, P.S. Golra Sharif for the State. Assisted by Neha Touseef and Salman Abbas (Law Clerks). Date of hearing: 3rd April, 2023. Judgment MOhsin Akhtar Kayani, J.---By way of this common judgment, we intend to decide the captioned appeals having common questions of law and facts arising out of same judgment dated 25.03.2022 passed by Additional Sessions Judge / Gender Based Violence (GBV) Courts East/West, Islamabad, in case FIR No 442 dated 06.07.2021 under sections 354-A/342/395/375-A/114/34/ 506(ii)/ 509/ 384 /377-B/412 P.P.C registered at Police Station Golra Sharif, Islamabad, whereby the appellants have been convicted and sentenced as under: i. Under section 354-A P.P.C sentenced to imprisonment for life each with fine of Rs.200,000/-each in default of the payment of fine they shall undergo One Month (01) S.I. each. ii. Under section 342 P.P.C sentenced to One Year (01) R.I. each. iii. Under section 506(ii) sentenced to Seven Years (07) R.I each. iv. Under section 509(i) sentenced to Three Years (03) R.I each. The sentence of imprisonment run concurrently and the accused are granted benefit of section 382(B) Cr.P.C. 2. Brief facts referred in the instant FIR are that Syed Asim Ghaffar SI/PW-5, filed a criminal complaint (Exh. PL), with the allegations that on 06.07 2021 he was posted as SHO in Police Station Golra Sharif, Islamabad. On the same day at about 09:50 pm. he along with Noor Illahi ASI, Hassan Mujtaba, and Inayat Khan Constables, were present at Golra Darbar Chowk, where he along with the other accompanying police officials came across a viral video. He saw in the video that 5/6 persons have detained an unknown girl and a boy in an apartment while forcibly stripping off their clothes, extending life threats and committing obscene acts with the two victims. On receiving spy information qua the place of occurrence, the same was identified as Apartment No 417, 4th flour Magnum Heights E-11/2, Islamabad, and the four persons seen in the video were identified as Usman Ibrar, Hafiz Atta-ur-Rehman, Adaris Butt and Farhan Shaheen. PW-5 went to a nearby internet shop and got the video downloaded from the internet by a person namely Usman Shah (PW.8), who saved the video in a USB Exh.P.11/(1 to 3) and handed over the same to PW-5. The complainant drafted his complaint (Exh.P.11) and got registered the FIR. The Investigation Officer (I.O.) Tariq Zaman SI (PW-15), investigated the matter after registration of FIR. He proceeded to Magnum Heights E-11/2, Islamabad, where Syed Asim Ghaffar S.I handed over to him USB (Exh.P.35) containing the obscene video which was taken into possession vide recovery memo. (Exh.PM). He prepared un-scaled site plan (Exh.PAH) of the place of occurrence i.e. Apartment No.417, 4th Floor, Magnum Heights, E-11/2, Islamabad, from outside of the apartment as the same was locked from inside. He arrested accused Usman Abrar from nearby Mahnoor Arcade E-11/2, Islamabad. On 07.07.2021, he arrested Farhan Shaheen and Hafiz Atta-ur-Rehman on spy information and prepared a recovery memo. of all three accused persons' belongings, including their mobile phones and deposited the same with the Moharrar Maal Khana. Subsequently, the investigation was changed to Shafqat Mahmood Inspector (PW-18), who recorded statement of the first I.O, transmitted the USB (Exh.P35) to PFSA Lahore through the first I.O, and conducted photogrammetry test of all accused persons at PFSA Lahore. During the course of investigation on 25.07.2021, accused Omer Bilal, Rehan Hussain and Mohib Khan got recovered the amount extorted from the victim Asad Raza and later on distributed between accused persons. On 30.07.2021, the clothes worn by the victims at the time of occurrence were handed over by the victim Asad Raza to the I.O. The I.O sent the accused persons on judicial remand for identification parade on 10.07.2021. The statement of victims Asad Raza and Sundas Tahir under section 164 Cr.P.C were recorded by Dr. Sania Hameed Assistant Commissioner (PW-11) and Aneel Saeed Sub-Divisional Magistrate (PW.9). Copies of the statements have been produced as Exh.P4 and Exh.P5, and taken into possession through recovery memo. (Exh.PD). After recording of their statements, sections 384/114/395 P.P.C were added. On 11.07.2021, the I.O conducted spot inspection on pointation of the victims and prepared un-scaled site plan (Exh.PAL), while taking into possession paintings / decoration pieces Exh.P.6/(1-7) and a piece of carpet which was seen in the video from the said apartment vide recovery memo. Exh.PE. The Investigation Officer also arrested Mohib Khan in E-11 Markaz on 11.07.2021. On 12.07.2021 the pistol used in the occurrence was recovered on pointation and disclosure of accused Usman Ibrar from his house along with mobile phones through which the said videos were recorded. The accused Usman Ibrar was unable to produce license of the pistol, and therefore, separate FIR under sections 13/20/65 A.O, was registered. Two mobile phones i.e. IPhone 12 Pro Max (Exh.P-9) and IPhone 11 Pro Max (Exh.P.10) were also recovered on his pointation and the I.O incorporated the offences under sections 375-A and 377-B P.P.C. On 13.07.2021, he produced all the accused persons before the Area Magistrate and obtained physical remand along with a permission to collect the audio samples of the accused persons. He also joined accused Rehan Hussain for investigation, who was arrested by Tarnol Police Station and remanded to judicial custody for identification parade to Adyala Jail. On 15.07.2021, the Investigation Officer recorded audio samples of the accused Usman Ibrar, Farhan Shaheen, Hafiz Atta-ur-Rehman and Adaris Butt which were converted into USB and also got other obscene videos stored in another USB, while making a backup in a third USB Exh.P.11 (1 to 3). He also got prepared the transcript Exh.P.29/(1 to 6) of the words spoken in obscene videos and took the same into possession through recovery memo. Exh.PH. On 16.07.2021, during identification parade, the victims Asad Raza and Sundas Tahir identified accused Omer Bilal, Mohib Khan and Rehan Hussain Mughal and assigned specific role to each accused before Magistrate Aneel Saeed. On the same day USBs parcel Exh.P-11/ (1 to 3) along with transcript Exh.P-20/ (1 to 6) were submitted to Cyber Crime Wing FIA, after receiving the parcel from Moharrar Malkhana, through Said Wali ASI /PW-1. 3. The Investigation Officer also filed an application to FIA for a trend analysis report in order to determine how many people had watched the obscene videos. The four accused namely Muhammad Usman Ibrar, Hafiz Atta-ur-Rehman, Farhan Shaheen Awan and Muhammad Adaris Qayyum Butt were taken on official prison van to PFSA Lahore for photogrammetry test. The recovered mobile phones Exh.P.9, Exh.P.10 and Exh.P.36 were received from Moharrar Maal Khana by Said Wali ASI who deposited the same in Cyber Crime Wing FIA for forensic analysis. On 23.07.2021, the I.O received copies of identification parade reports Exh.P.39/(1-13) comprising of thirteen pages. The other mobile phones Samsung Galaxy (Exh.P.15) of Rehan Hussain and two mobile phones of Mohib Khan IPhone 7 (Exh.P.13) and Techno (Exh.P.14) were also received during the investigation. The accused persons also got recovered extorted amount from their house which was taken into possession separately i.e Rs.10,000/- from Omer Bilal, Exh.P.30 (1-20), Rs.70,000/- from Rehan Hussain Exh.P.31 (1-14), Rs.70,000/- from Mohib Khan Exh.P31 (1-14), and Rs.6,000/- from Adaris Qayyum Butt Exh.P.12(1-2). On 30.07.2021, victim Asad Raza handed over his dark gray colored sweater (Exh.P.16) and multi-colored shirt of Sundas Tahir (Exh.P.17) which they had worn at the time of occurrence, same were taken into possession through recovery memo. (Esh.PK) and their statements were recorded. On 04.08.2021, Said Wali ASI collected trend analysis report Exh.P.AE/(1-325) from Cyber Crime Wing FIA which demonstrated that the trend was seen by more than one hundred thousand people. On 25.10.2021, Muhammad Khan SI collected USB Exh.P35 from PFSA Lahore and handed over to the I.O. On 19.01.2022, Investigation Officer received permission from Area Magistrate for recording audio sample of accused Mohib Khan, which was recorded and converted into USB Exh.P.11/1-3) and same was submitted to Cyber Crime Wing FIA with request to conduct forensic analysis / audio matching consequently, the I.O. has submitted final report under section 173 Cr.P.C. 4. On 28.09 2021, all the seven accused persons namely Muhammad Usmar Abrar, Farhan Shaheen Awan, Hafiz Atte-ur-Rehman, Muhammad Adaris Qayoum Butt, Mohib Khan, Rehan Hussain Mughal and Omer Bilal Khan were charged for the offences under sections 354-A/342/395/ 506(ii)/ 375-A/509/384/411/149 P.P.C, for harassing and using criminal force against victim Sundas Tahir and outraging her modesty, stripping off her clothes, exposing her to public view, and wrongfully confined Sundas Tahir and Asad Raza in the flat and extorted amount on gun point, extended life threats and forced Asad Raza to commit rape of Sundas Tahir. The appellant and the acquitted accused pleaded not guilty, whereafter, prosecution got recorded statement of 22 prosecution witnesses. The appellants' statements under section 342 Cr.P.C. were recorded, whereafter the trial Court convicted five appellants and acquitted two accused from the charges. 5. Arguments heard, record perused. 6. Before delving into the merits of the case, it is necessary to address the preliminary issue raised by the appellants regarding the jurisdiction of the special court where the trial took place. JURISDICTION OF SPECIAL COURT 7. According to section 3 of the Anti-Rape (Investigation and Trial) Act 2021 (hereinafter referred as ARA 2021), the special courts established under the Act possess jurisdiction over cases specified in the Schedule of the Act. Proviso to section 3(3) of the ARA 2021 provides that where GBV courts, juvenile courts, or child protection courts have already been assigned, they shall be deemed as the distinguished Courts of Special Jurisdiction in accordance with the provisions of this Act. Presently, the GBV courts in Islamabad are functioning as special courts under the ARA 2021, as indicated by the proviso to section 3(3) of the Act.…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Islamabad High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant