Full Judgment Text & Judicial Ruling

2025 P Cr. L J 1801 [Islamabad] Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ Ahsan Ali Gardezi---Appellant Versus The STate---Respondent Criminal Appeal No. 417 and Jail Appeal No. 476 of 2023, decided on 16th June, 2025. (a) Penal Code (XLV of 1860)--- ----S. 377-B---Sexual abuse---Appreciation of evidence---Ocular account proved---Child witnesses, evidence of---Reliance---Accused was charged for sexually harassing the minor daughter of the complainant---Minor victim confirmed that she along with her brother were sitting near the main door of the Masjid and her brother was also present with her, who was the second direct eye-witness of the incident---Victim was confronted with a specific and direct question regarding the identity of the accused, to which she responded that she remembered the face of the accused, who came at the time of occurrence---Victim did not see the accused person at the police station---Said statement confirmed that victim was mature enough to comprehend the situation and possessed a strong memory enabling her to identify the accused, who was later identified to be applicant---Furthermore, during cross-examination, the defence put additional questions, which were answered by the child victim in a very particular and detailed manner---Victim stated that there was a beard on the face of the accused---Accused was wearing a blue-coloured shirt with white stripes and yellow-coloured pants---Accused came on a bike, he parked his bike, then took a round and came near them---These were specific and distinctive features of the accused---Therefore, this part of the identification of the accused person, especially the appellant, had to be seen in comparison with the second eye-witness, who also reiterated his stance in affirmative evidence regarding the incident of 11.09.2022---Said witness confirmed that he, his sister and grandfather, went to offer Maghrib prayer at the mosque---Both said witness and his sister sat outside the mosque while their grandfather went inside---At that time, the accused started talking to them, asked various questions, and committed obscene acts with him and his sister---As per affirmative evidence of said witness, the accused kissed his sister, after which he started running; accused went away and came back, and then again he kissed his sister---Said affirmative evidence remained on record---During cross-examination of the direct witness,the appellant's side did not ask anything to dispel these elements of sexual abuse of the victim---Therefore, the two direct statements of the child witnesses were relevant for the entire crime scene---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. (b) Penal Code (XLV of 1860)--- ----S. 377-B---Sexual abuse---Appreciation of evidence---CCTV footage on record---Corroborating the ocular account---Accused was charged for sexually harassing the minor daughter of the complainant---Statements of two eye-witnesses had been viewed in the context of the CCTV footage collected by the Investigating Officer, which was played in the Trial Court---Court had also reviewed the said video, which was collected from a plaza, located in front of the mosque, where a camera had been installed---Video footage of approximately 31 minutes, obtained from a camera installed in the market on a plaza in front of the mosque (approximately 30 to 40 yards away), confirmed that a man approached the children and also verified the conversation and, astonishingly, both minors left the bench in front of the mosque; however, the person chased them---Most astonishing scene in the video footage was when the victim girl hit the accused multiple times to express her anger and reaction against the accused in an attempt to stop him from harassing her, yet the accused continued his actions---Said incident corroborated the stance taken by both the victim and the direct witness, aged about 07 years, based on the CCTV footage collected by Investigating Officer---Said corroboration left nothing in favor of the appellant---As per the forensic report, the CCTV footage was found to be genuine, without any editing or tampering---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. (c) Penal Code (XLV of 1860)--- ----S. 377-B---Sexual abuse---Appreciation of evidence---Child witness, evidence of---Reliance---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Statement of the child witness played a significant and key role in this case, where usually no direct evidence was available in incidents of sexual abuse---However, in the present case, the corroborative pieces of evidence supported the stance taken by both the victim and her brother, which was further corroborated by the testimonies of their father and maternal grandfather---In the present case, it was clearly established from the testimony and cross-examination that the child victim was not tutored, nor was his brother tutored in any manner---Court also observed from the testimony of the victim that the evidence was given without hesitation and without the slightest suggestion of tutoring or anything of any sort---Furthermore, there was corroboration of the evidence, in so far as it narrated the actual facts, which was the key requirement---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. Raja Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146; Maqsood Khan v. The State 1982 SCMR 757 and Mst. Imam Sain v. The State 2015 YLR 17 rel. (d) Criminal trial--- ----Child witness, evidence of---Scope---Evidence of a child witness is a delicate matter and normally, it is not safe to rely upon it unless corroborated, as a rule of prudence---Great care is to be taken to ensure that the evidence of a child is free from any element of coaching. The State through Advocate General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel. (e) Penal Code (XLV of 1860)--- ----S. 377-B---Qanun-e-Shahadat (10 of 1984), Art. 22---Sexual abuse---Appreciation of evidence---Test identification parade---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Record showed that the victim, identified the appellant in the identification parade conducted in District Jail---Victim categorically explained the role of the appellant that he forcibly kissed her three or four times on my lips---Brother of victim and victim got up and tried to push accused away---Victim even tried to hit that person, upon which he started laughing and asked her to hit him more---Said aspect of the statement, regarding the role described by the victim, was verified through the CCTV footage and further explained by the Investigating Officer---Therefore, the Hig Court firmly believed the identification to be correct under the law and there was no indication of tutoring or tampering---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. (f) Penal Code (XLV of 1860)--- ----S. 377-B---Criminal Procedure Code (V of 1898), S. 164---Sexual abuse---Appreciation of evidence---Statement of victim---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Victim recorded her statement under S.164,Cr.P.C., before Magistrate---In order to ease the victim and provide a conducive environment for restoring her confidence, a female Magistrate was also called for recording the statement---Victim's statement was rightly recorded, clearly describing the incident---Victim stated that the accused forcibly kissed her on the lips 03/04 times, after which she and her brother pushed and hit him multiple times and ran on the other side, but he followed them---Similarly, the statement under S.164,Cr.P.C., served as another piece of corroborative evidence supporting the prosecution's case---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. (g) Penal Code (XLV of 1860)--- ----S. 377-B---Criminal Procedure Code (V of 1898), S. 342---Sexual abuse---Appreciation of evidence---Defence plea of alibi taken by accused while recording statement under S.342, Cr.P.C. not proved---Accused was charged for sexually harassing the minor daughter of the complainant---Appellant, in his statement recorded under S.342,Cr.P.C., denied the occurrence of the incident and also produced three defence witnesses to prove his alibi---All three defence witnesses failed to create any impact in that strong case of the prosecution, which was supported by the victim, direct evidence and corroborative CCTV footage---In addition to the above, the appellant himself got recovered the blue-coloured T-shirt with lines, skin-coloured pants and black-coloured cap from his room, which also constituted supporting and corroborative evidence against the appellant---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly. Muhammad Abdul Rafeh for Appellant. Faisal Nawaz for Appellant (in Jail Appeal No. 476 of 2023 at State expenses). Muhammad Wajid Munir, DDPP for the State. Rehan Seerat and Ch. Hayat Kamil for the Complainant. Ijaz and Maryam Sikandar victim's parents present. Zulfiqar Ali, S.I. Assisted by Ms.Aymen Aziz, Law Clerk, Islamabad High Court. Date of hearing: 12th May, 2025. Judgment Mohsin Akhtar Kayani, J.---Through the instant appeal, the appellant has assailed the judgment dated 23.10.2023, passed by learned Additional Sessions Judge GBV Court (West), Islamabad, whereby appellant has been convicted in case FIR No.781 dated 11.09.2022, under Section 377-B P.P.C, P.S Ramna, Islamabad and sentenced to Fourteen (14) Years imprisonment with fine of Rs.10,00,000/-. In case of default in payment of fine, he shall further undergo 03 months S.I. The benefit of Section 382-B Cr.P.C. was also extended to the appellant. 2. Brief facts referred in the instant appeal are that the complaint, Exh. P.A has been lodged by Muhammad Ijaz-ul- Haq, PW-01, with the allegation that on 11.09.2022, he along with his wife Maryam Sikandar and two children, namely Harim Haq, aged about 10/11 years, and Fayyaz-ul-Haq, aged about 07 years, went to the house of his wife's father, namely Sikandar Hayat, PW-03, the maternal grandfather of the children. On the same day, at Maghrib time, the maternal grandfather Sikandar Hayat and the two children, Harim Haq and Muhammad Fayyaz, went to offer Maghrib prayer at Jamia Masjid Ghosia, situated at Saba Market, Street No.111, Sector G-11/3, Islamabad. The grandfather of the children went inside the Masjid for prayer, while the two children were sitting outside the Masjid on a stone Bench. In the meanwhile, an unknown accused person came on a motorcycle and started sexually harassing his daughter. He kissed the victim on her lips and also touched her private parts, thereafter left the spot. The daughter narrated the said incident. The complaint, Exh. P.A, was converted into FIR No.781, dated 11.09.2022, under Section 377-B, through Exh. P.A/1 by the police. The Investigating Officer, Asif Khan S.I, PW-12, started the Investigating after the registration of FIR by the duty officer Zafar Ali S.I, PW-04. The Investigating Officer got the statement of the victim, Harim Haq, recorded under Section 164 Cr.P.C before the Magistrate, PW-11, and also collected the CCTV footage from different cameras installed near the place of occurrence. Specifically, Ayaan Plaza, which is in front of the mosque, where the entire incident was captured in the CCTV footage obtained from the security supervisor, Muhammad Yaqub, in USB-1. He also collected the CCTV footage from cameras installed at House Nos.87 and 88, Street No.111, G-11/3, Islamabad, and verified that the accused was wearing a blue-coloured shirt, yellow skin pant, and a black-coloured cap. These videos were taken through USB-2. He also inspected another CCTV footage from a nearby street and, on the basis of identification features and his Investigating, apprehended Ahsan Ali Gardezi (appellant), on 03.10.2022. Upon his personal search, he found cash amounting to Rs.600, Exh.P3. He also transmitted two USBs containing CCTV footage to the FIA, Cyber Crime Wing for forensic analysis. On the disclosure of the appellant, the place of occurrence was identified, an identification memo was prepared, and the clothes worn by the appellant at the time of the occurrence only, a blue shirt with lines (P12), skin-colored pants (P13), and a black cap (P14) were recovered from his house at Shah Allah Ditta on his own pointation from his room. The final report under Section 173 Cr.P.C. was submitted after recording the statements under Section 161 Cr.P.C of all the witnesses. 3. The trial Court framed the charge on 30.01.2023 under Section 377-B P.P.C against the appellant, whereby he denied the charge and claimed trial. Consequently, 12 prosecution witnesses have been recorded along with documentary evidence Exh.PA to Exh.PR and the appellant also took defence. Therefore, three defence witnesses DW-01 to DW-03 were also recorded along with the statement Section 342 Cr.P.C, whereafter trial Court convicted the appellant accordingly. 4. Arguments heard and record perused. 5. Perusal of record reflects that the entire case of sexual abuse revolves around the allegation of the victim Mst. Harim Haq (DW-02), a minor aged 10/11 years, who along with her younger real brother Muhammad Fayyaz Ul Haq, aged 7 years (DW-05), in the company of her maternal grandfather Sikandar Hayat (DW-03), on 11.09.2022, went to offer Maghrib prayer in the nearby mosque when the appellant sexually abused the victim Mst. Harim Haq. 6. In order to prove this case, the prosecution supported their case through evidence of maternal grandfather Sikandar Hayat, PW-03, who confirms that on 11.09.2022, her daughter Maryam Sikandar and son-in-law came to his house with two minor children Harim Haq and Fayyaz Ul Haq, DW-02 and DW-05 respectively and on the same day, when he went to offer Maghrib prayer, both the children accompanied him at Saba Market, Street No.111, Sector G-11/3, Islamabad, Masjid Ghosia. He went inside and two minor grandchildren were sitting outside on a stone Bench and during the said period, the accused sexually abused the minor victim. PW-03 Sikandar Hayat was cross-examined at length, who confirmed that the children were sitting on the right side bench from the entrance of the Masjid and confirmed that minor told him that "the accused had touched and pulled the victim and kissed the victim at the time of occurrence". Similarly, the complainant, father of the victim Ijaz Ul Haq, PW-01 has also given the similar statement that her daughter told him that "the said accused parked his bike and came near to the victim Harim Haq and sit next to her". He started to commit obscene act with my daughter. He kissed the victim on her lips and also touched her private parts and thereafter left the spot when my daughter started crying". This statement of two witnesses require direct evidence, which has been narrated by the minor victim PW-02 Harim Haq, which played a key role in the entire prosecution case. Therefore, her statement is as under: I along with my maternal grandfather and my brother Muhammad Fayyaz ul Haq went to offer Maghrib prayer at Jamia Masjid Ghosia situated at Saba Market Street No.111, Sector G-11/3, Islamabad. My grandfather went inside the Masjid for prayer while I and my brother were sitting on a stone bench outside the Masjid in front of the football ground. In the meanwhile, an unknown accused (who was later identified by me as Ahsan Ali) who was wearing blue color shirt with stripes and skin yellow color pant came towards us on his bike with unknown number. The said accused parked his bike. After sometime he came near to me and sit next to me. He started talking to me and started asking different questions. Thereafter the accused parked his bike. Thereafter the accused forcefully kissed me on my lips 03/04 times and I and my brother pushed him away and hit him multiple times. I and my brother ran to save ourselves but he followed us there. Then we ran back towards Masjid but he followed us there as well. The accused then went towards his bike and came back with a leaf in his hand and said that if I could catch that leaf he would go away. I did not catch that leaf and we were trying to run inside the Masjid but the accused caught me and picked me up. He touched my private parts. He then touched my ears because I was wearing gold earrings. As the prayer was about to get over, the accused asked me to go with him to drink water at the side of the Masjid but I refused. The accused then decamped from the spot as the prayer was about to get over. 7. The minor victim (PW-02) was confronted with certain questions by the Court before recording her statement, and the trial Court was of the view that the minor understood the nature of every act and gave rational answers to the questions put to her. Therefore, considering the above, the appellant's side cross-examined the minor victim (PW-02). During her testimony, she confirmed the facts regarding accompanying her maternal grandfather for the Maghrib prayer and also confirmed that there is a market in front of the Masjid. She stated that few people were passing by the market and that people were also entering and exiting the mosque. She confirmed, "We were sitting near the main door of the Masjid." She further confirmed, "it is correct that my brother Fayyaz was also present with me, who is the second direct eye-witness of the incident," and also stated, "We were sitting on the right bench of the Masjid." 8. The victim was confronted with a specific and direct question regarding the identity of the accused, to which she responded, "I remember the face of the accused, who came at the time of occurrence. I did not see the accused person at the police station." This statement confirms that she is mature enough to comprehend the situation and possesses a strong memory, enables her to identify the accused, who was later identified to be Ahsan Ali Gardezi. Furthermore, during cross-examination, the defence counsel put additional questions, which were answered by the child victim (PW-02) in a very particular and detailed manner. She stated, "There was a beard on the face of the accused. The accused was wearing a blue-coloured shirt with white stripes and yellow-coloured pants. The accused came on a bike. He parked his bike, then took a round and came near us." These are specific and distinctive features of the accused. 9. Therefore, this part of the identification of the accused person, especially the appellant, has to be seen in comparison with the second eye-witness, Muhammad Fayyaz-ul-Haq (PW-05), who also reiterated his stance in affirmative evidence regarding the incident of 11.09.2022. He confirmed that he, along with his sister and grandfather, went to offer Maghrib prayer at the mosque. Both he and his sister sat outside the mosque while their grandfather went inside. At that time, the accused started talking to them, asked various questions, and committed obscene acts with him and his sister. As per his affirmative evidence "The accused kissed my sister. I started running. The accused went away and came back, and then again he kissed my sister." This affirmative evidence remains on record. 10. During cross-examination of the direct witness PW-05, the appellant's side did not ask anything to dispel these elements of sexual abuse of the victim (PW-02), despite the eye-witness confirming that bench was on the right side of the mosque's door. He stated that "It is correct that there is a market in front of the mosque. People were coming and going out of the mosque at the time of the occurrence. I made hue and cry when the accused came." He further stated "It is correct that my sister also made hue and cry. The accused kissed my sister. The accused kissed my sister on her lips and went away. Then he again came back and kissed my sister." He also confirmed "I did not see the accused present at the police station when I went there." Therefore, the two direct statements of the child witnesses are relevant for the entire crime scene, and these statements have been viewed in the context of the CCTV footage collected by the Investigating Officer, which was played in the trial Court. This Court has also reviewed the said video, particularly Exh. P1, which was collected from Ayaan Plaza, located in front of the mosque, where a camera had been installed in Saba Market, G-11/3, by Investigating Officer Asif Khan (PW-12). He made a serious effort by collecting three other video clips P1 and P2 in the form of a USB, which were played before us. These pertain to House Nos.87 and 88, Streets Nos. 111, 112, and 115, Sector G-11/3, Islamabad. 11. The video footage of approximately 31 minutes, obtained from a camera installed in the market on a plaza in front of the mosque (approximately 30 to 40 yards away), confirms that a man approached the children. It also verifies the conversation, and, astonishingly, both minors left the bench in front of the mosque; however, the person chased them. The most astonishing scene in the video footage is when the victim girl hit the accused multiple times to express her anger and reaction against the accused in an attempt to stop him from harassing her, yet the accused continued his actions. This incident corroborates the stance taken by both the victim, PW-02 Harim Haq, and the direct witness, Muhammad Fayyaz ul Haq (aged about 07 years), PW-05, based on the CCTV footage collected by Asif Khan, PW-12. This corroboration leaves nothing in favor of the appellant. Therefore, the statement of the child witness played a significant and key role in this case, where usually no direct evidence is available in incidents of sexual abuse. 12. However, in the present case, the corroborative pieces of evidence support the stance taken by both the victim and her brother, which is further corroborated by the testimonies of their father and maternal grandfather, Sikandar Hayat. In this context, the testimony of the child witness must be examined in light of the standard and threshold laid down in PLD 2020 SC 146 (Raja Khurram Ali Khan v. Tayyaba Bibi). The Supreme Court in that case emphasized that, under Article 3 of the Qanun-e-Shahadat Order, 1984, the essential condition for a child or any person to appear and testify as a witness is that the individual must possess sufficient intelligence and understanding to comprehend the questions put to them and must be capable of giving rational responses thereto. This standard has come to be known as the rationality test, and the judicial practice that has evolved over time requires that the trial Court conduct this assessment prior to recording the evidence of the child witness. In the present case, this practice was duly followed. The trial Court rightly held that the victim child successfully passed the rationality test, demonstrating a clear understanding of the nature of the act and providing a coherent and comprehensive account of the incident. The presiding Judge ensured, before recording the testimony that the child was competent to testify in accordance with the criteria laid down by the superior Courts. 13. No doubt, the evidence of a child witness is a delicate matter, and normally, it is not safe to rely upon it unless corroborated, as a rule of prudence. Great care is to be taken to ensure that the evidence of a child is free from any element of coaching, as held in PLD 1995 SC 1 (The State through Advocate General, Sindh, Karachi v. Farman Hussain and others). In the present case, it is clearly established from the testimony and cross-examination that the child victim was not tutored, nor was his brother (PW-05) tutored in any manner. This Court also observed from the testimony of the victim that the evidence was given without hesitation and without the slightest suggestion of tutoring or anything of any sort. Furthermore, there is corroboration of the evidence, in so far as it narrates the actual facts, which is the key requirement. The real test is how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits with the evidence and circumstances of the case as held in 1982 SCMR 757 (Maqsood Khan v. The State). 14. The rule of caution in such type of cases is that where child is the witness or…

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