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Official Citation: 2023 SHC 834
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-09-19
Parties: Amjad Ali alias Zakir alias Sajid S/o Khairat Ali vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-09-19, officially reported as 2023 SHC 834. In this matter between Amjad Ali alias Zakir alias Sajid S/o Khairat Ali and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023SHC834
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Amjad Ali Bohio Title: Amjad Ali alias Zakir alias Sajid S/o Khairat Ali vs The State Case No.: Spl. Criminal A.T.J.Appeal No. 08 of 2023 Confirmation Case No.10 of 2022 Date of Judgment:2023-09-19 Reported As: 2023 SHC 834 Result: Appeal Dismissed
JUDGMENT
JUDGMENT AMJAD ALI BOHIO, J:- The appellant was tried under the provisions of the Anti-Terrorism Act, 1997, for committing rape (Zina Bil Jabr) with a minor baby Maria, inside the house of her friend Misbah, situated behind the house of the victim. The appellant has been convicted under Section 376(3) of the PPC and sentenced to death by hanging, subject to confirmation by this court. This judgment was passed on November 28, 2022 by Judge Anti-Terrorism Court No. X, Karachi, in Special Case No. 629 of 2018, which arose from Crime No. 34 of 2018, registered at Police Station Sukkan, Karachi. 2. The incident occurred on February 2, 2018, at 13:00 hours for which statement of the complainant, Mst. Farzana being mother of minor, under section 154 Cr.P.C. was recorded on the same day at 18:00 hours and incorporated into the book under section 154 Cr.P.C. at Sukkhan Police Station at 19:40 hours. The prosecution's case precisely is that on the day of the incident, the complainant left her daughters, Maria (aged 8-9 years) and Alisha (aged 6-7 years), at home and she went for work. At around 1:30 p.m., she received a phone call from people in the area informing her that an unidentified person had forcibly committed zina with her daughter Maria at the back of their house, and she was injured. Upon receiving this information, she rushed to her home, where she came to know that her daughter Maria had been taken to Jinnah Hospital for medical treatment. She, along with witnesses Akhtar and Shahid, went to the Emergency Ward, where she was informed that her daughter Maria had been admitted to the Intensive Care Unit (ICU) Ward and was receiving medical treatment. ASI Khamiso recorded her statement, in which she accused an unidentified person for forcibly raping her daughter Maria, who could identify the perpetrator. 3. The investigation officer (IO), SIP Muhammad Tayyab, conducted a thorough investigation into the rape case of Maria. He inspected the crime scene, secured the bloodstained child's clothing,
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which he sealed. He prepared a mashirnama of the scene of the offense and the recovery of the child's clothes. He then recorded the statements of the complainant and other prosecution witnesses, including the victim Maria. He also dispatched the blood samples, swabs, and a blood- stained shirt/kameez for DNA examination and report to the Incharge DNA laboratory at Jamshoro University District Jamshoro, as well as a sealed slide to the Chemical Examiner for analysis. Photographs of the victim were also taken at her home. 4. On April 10, 2018, at 13:00 hours, DSP/I.O Ali Hassan Shaikh arrested the appellant, Amjad Ali, at P.S Malir Cantt, where he was confined in crime number 236 of 2018 under sections 363 and 511 of the P.P.C. During interrogation, the accused confessed to raping three minors, including victim Maria, in separate cases. On April 12, 2018, identification parade was conducted before Magistrate Mir Sagar Khan, in which victim Maria identified the appellant from amongst 10 dummies. The IO then submitted report under Section 173 of the Criminal Procedure Code after conclusion of the investigation. 5. After complying with the provisions of section 265-C Cr.P.C., the trial court framed charge against the appellant on March 15, 2019, to which he pleaded not guilty and claimed a trial. 6. During the trial, the prosecution examined WMLO Dr. Aiman Khursheed (PW-1), Forensic DNA Analyst Muhammad Hussain Soomro (PW-2), Complainant Mst. Farzana (PW-3), victim minor Maria (PW-4), SIP/O Muhammad Tayyab (PW-5), ASI Arsalan Akbar Arain (PW-6), Judicial Magistrate Mir Sagar Khan (PW-7), MLO Dr. Nazeer Ahmed Malik (PW-8), SMLO Dr. Afzal Ahmed (PW- 9), and DSP/I.O Ali Hassan Shaikh (PW-10). The prosecution then closed its side of the evidence on November 17, 2021. 7. The appellant denied all the allegations against him in his statement recorded under Section 342 of the Criminal Procedure Code and claimed his innocence. However, he did not provide his evidence on oath and did not examine any witness in his defense. 8. The trial court, after hearing the parties and considering the evidence presented, convicted the appellant and sentenced him as stated above. Consequently, the appellant has filed the present appeal against his conviction. 9. The facts of the case and the evidence produced before the trial court are extensively discussed in the impugned judgment dated November 28, 2022, passed by the trial court. Therefore, reproducing the same would amount to duplication and unnecessary repetition. 10. The appellant's counsel argues that there is a delay in lodging the FIR; that the appellant is not nominated in the FIR; that he is innocent and has been falsely implicated in this case by the police to show their efficiency; that there are material contradictions in the testimonies provided by the prosecution witnesses, no independent witnesses from the neighborhood (Mohalla) who could testify to the events has been examined; that absence of a physical description (hulia) of the appellant in the FIR, and the appellant's claim that he has been falsely implicated based on an extra-judicial confession, which is inadmissible in evidence. Finally, the appellant's counsel argues that by extending the benefit of the doubt, the appellant should be acquitted of the charge. 11. The Learned Additional Prosecutor General has fully supported the impugned judgment and contended that the prosecution has proved its case beyond a reasonable doubt. This is based on several pieces of evidence, including the victim's accurate identification of the appellant as the person who raped her during identification parade held before a Judicial Magistrate. Additionally, a positive DNA report scientifically connects the accused to the rape of the victim, which is further corroborated by the chemical report and medical evidence presented in court. It has also been argued that the appellant has a history of committing similar offenses, as evidenced by his Criminal Record (CRO) involvement in other pending and decided cases against him. The prosecutor asserts that due to the heinous nature of the alleged offense, which has caused fear and insecurity among the public, the appeal is liable to be dismissed, and the confirmation
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reference may be answered in the affirmative. In support of these contentions, the prosecutor has cited several legal precedents, including Atif Zareef and others v. The State (PLD 2021 SC 550), Shahzad alias Shaddu and others v. The State (2002 SCMR 1009), Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 262), Muhammad Zaman v. The State (2007 SCMR 813), and Zahid and another v. The State (2020 SCMR 590). 12. We have carefully considered the arguments presented by the learned counsel for the appellant, as well as, the learned Additional Prosecutor General, Sindh. We have also reviewed the entire evidence, including the evidence read out by the appellant's counsel and the impugned judgment, in light of the relevant legal principles relied upon. 13. After reassessing the evidence, including the testimony of the victim. Maria, the medical evidence, the chemical report, and the DNA results, it is evident that the minor victim Maria was raped inside the house of her friend when she had gone there with her sister to offer Jumma prayer. 14. The statement under section 154 Cr.P.C. of the complainant being mother of victim was recorded at 18:00 hours, within five hours of the occurrence. This prompt reporting is despite of the fact that the complainant, being a working lady, was informed about the alleged incident by telephone, and she immediately rushed to the scene, she then arrived at the Jinnah Postgraduate Medical Centre (JPMC), where the victim was admitted to the Intensive Care Unit (ICU) Ward and was receiving medical treatment. Therefore these facts justify the delay in reporting the crime. This explanation supports the notion that there was no time for concocting a false case against the appellant, and it adds credibility to the complaint made by the victim's family. Furthermore, it is also to be noted that the FIR was lodged against an unknown person, so there was no attempt to falsely implicate the appellant, who was not known to the victim prior to this incident. 15. The victim admittedly was 11/12 years old at the time when her evidence was recorded on September 22, 2020, before the trial court when the Court inquired several questions from the victim and was found to be able to answer questions correctly during her testimony. Additionally, the statement of the child witness has been fully corroborated by circumstantial and medical evidence. In this regard, reference is made to the case of Muhammad Shah v. State (1991 MLD 1044), wherein, it was held that such corroboration is important in cases involving child witnesses. "10. We have gone through the evidence of Mst. Irshad (P.W.5) with care. Before recording her statement the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. Besides, she has been subjected to fairly lengthy cross-examination which she had withstood to an astonishing degree. A perusal of her statement shows that she made the statement in a frank and straightforward manner. Curiously there was no suggestion to her in her cross-examination that she did not know the appellant. Then there are no circumstances to indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim .with his trousers loosened. She was intelligent enough to understand as to what had been done to her brother and neither she nor her father had any motive to falsely implicate him. We see no reason whatsoever why the statement of such a child witness should not be believed though a suggestion was made to Najeem Gul (P.W.4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr.P.C. did not take up this plea. We have-not been able to discover any valid reason to reject the testimony of Mst. Irshad (PW.5)." 16. During her testimony, victim Maria provided a detailed account of the gruesome act perpetrated against her, and her testimony remained steadfast without wavering on any material point related to the incident. She stated that she, along with her younger sister, had gone to the neighboring house of her friend, Misbah, to offer Jumma Prayer, as they used to pray collectively
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there. She further narrated that the younger brother of her friend, along with an individual identified as the appellant, opened the door of the house. Initially, the intention was to show the house to the appellant, but they were informed that no one was inside. Consequently, the appellant forcefully entered the house and locked them up in the kitchen cum bathroom. When they began to raise an alarm, the perpetrator slapped minor Maria and threatened her with dire consequences. The culprit then singled out the victim among the children, called her over, and removed her shalwar before committing the act of Zina. During this portion of the trial, the trial court also took note of the victim's demeanor, which is available at page No. 147 of the paper book. "At this stage, witness has feared on her face and appears to be in deep trauma after remembering the facts of the incident." 17. It appears from the description provided that the victim's testimony was detailed and consistent, and her demeanor during the trial was also observed and recorded. This further strengthen the eye witness account of the incident corroborated with other evidence produced during trial. 18. During the victim's testimony, the defense could not succeed in challenging the evidence presented earlier, including the detailed description of the incident and the demeanor of victim Maria, as described above. The defense counsel attempted to suggest that it would have been impossible for the appellant to commit the act in the presence of her friend Misbah, her brother, and other children. However, the victim vehemently denied this suggestion and explained before the Court during her testimony that prior to committing the act of Zina, the appellant had locked the other children inside the kitchen and bathroom. It is noteworthy that following the victim's explanation regarding the confinement of the other children by the appellant inside the kitchen cum bathroom before committing the gruesome act, the learned counsel for the appellant put forth another suggestion. This suggestion, in essence, implied that the appellant was present at the place of occurrence but denied that he had locked the remaining children inside the kitchen cum bathroom at the time of the incident. 19. Regarding the non-production of an independent witness before the trial court as contended by the counsel for the appellant, it is important to note that the statement of the victim, minor Maria, serves to connect the appellant with the commission of the offense. Her statement is credible, as it inspires confidence. It is settled principle of law that in cases of this nature, the statement of the victim, on its own, can be sufficient to establish the charge against the accused. However, a strict condition for accepting such a statement is that it must appear to be independent, unbiased, and straightforward in establishing the accusation against the accused. Upon a careful re-examination of the evidence provided by the victim, it has been found that she testified in a straightforward and natural manner, and her account was not shaken during cross-examination. Neither she nor her mother, who was the complainant, nor any other witness had any apparent reason to falsely implicate the appellant in this case. Consequently, her testimony is considered credible, and it is supported by the medical evidence of her rape. Furthermore, there is no evidence on record to suggest that the victim was coached or tutored by anyone, including her elder. In support of this view point, reference is made to the case of Fayya z alias Fayya zi and another v. The State (2006 SCMR 1042). The relevant portion of the case is reproduced as follows: "It has also been rightly observed by the learned Federal Shariat Court that conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so available in the case. Undisputedly victim of the offence namely Khadim Hussain at the time of commission of offence was aged about 10 years and a school going boy, who did not carry any ill-will, grudge or malice against the appellants to falsely implicate them in the case. It has also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated
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that after attending the class he was on his way for the home through pavement where wheat crop was standing. He was ambushed by accused persons out of whom accused Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him and thereafter accused Fayyaz caught hold of him and sodomy was committed upon him by accused Abbas. He also stated that accused was armed with a pistol who threatened him of serious consequences. The testimony of the victim could not be impeached or discredited though subjected to test of cross- examination by the learned defence counsel. Dr. Atta Muhammad Zafar, the Medical Officer appeared as P.W.4 who stated that on 24-4-1998 he medically examined Khadim Hussain aged about 10 years was brought to him by Constable Munir Ahtned as a case of sexual assault. The victim was allegedly subjected to unnatural lust on 23 4-1998 and the matter was promptly reported to the police, which was entered as Roznamcha Rappet No.3 on 23-4-1998 at about 2-30 p.m. and subsequently on 25-4-1998 at 9-30 p.m. F.I.R. was registered against the nominated accused persons most probably in view of the MLR of the victim produced by the complainant." 20. Similar view has also been taken in the case of Mushtaq Ahmed and another v. The State, reported in 2007 SCMR 473, wherein it has been held as under: "It is consistent view of this Court that in rape cases mere statement of the victim is sufficient to connect the petitioners with the commission of offence in case the statement of the victim inspires confidence. In the present case both the Courts below have given concurrent conclusions that statements of both the victims (P.W.9 and P.W.10) inspire confidence and connected the petitioners with the commission of offence." 21. It is important to note that the victim had never met the appellant prior to this incident, and therefore, she could not provide a physical description (hulia) of the appellant and even otherwise FIR was registered by complainant when victim was under treatment at hospital. However, the rape occurred in broad daylight and she was physically forced to remain for sufficient amount of time with the appellant during the incident. She had the reasonable opportunity to see the appellant from a close distance throughout the entire period, making it possible for her to easily identify him with certainty, which she did only a few months after the incident during the identification parade held before the Magistrate on April 24, 2018. Such facial appearance of culprit must have been etched into her memory, and she might not be able to forget it. We have already discussed the straightforward and confidence-inspiring nature of the victim's evidence, particularly her correct identification of the appellant as her rapist during the identification parade. It is a well-settled legal principle that a delay in holding an identification test of the accused is not, by itself, sufficient grounds to discard the testimony, as established in the case of Muhammad Zaman (supra). Even otherwise, it is settled law that holding of identification parade is merely a corroborative piece of evidence. If a witness identifies the accused in Court and his/her statement inspires confidence; he remains consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, then even the non-holding of identification parade would not be fatal for the prosecution case as held in the cases of Gahzanfar Ali v. The State (2012 SCMR 215) and Muhammad Ali v. The State (2022 SCMR 2024). 22. In this case, the testimony of the victim, baby Maria, regarding the commission of rape on her, is supported by medical evidence. WMLO Dr. Aiman Khursheed (PW-01) who examined victim Maria on the day of the incident, February 2, 2018, at 3:14 pm, and found no marks of violence. The details of her examination, as she deposed, are as follows: "PER ABDOMINAL EXAMINATION No mark of violence. PER VAGINAL EXAMINATION Vagina bleeding profusely. Posterior wall of vagina torn. Posterior fornix torn. Hymen freshly torn and bleeding. Labia magora not torn (normal). Perineal body torn.
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Vagina one finger was introduced with lot of pain and bleeding ++. Vagina two fingers were introduced with much difficulty and pain. Referred for gynecological opinion. White shalwar and light sea green shirt with white dots and vaginal packing were sealed and sent for chemical examination. Two vaginal swabs have been reserved for DNA and Two for chemical analysis. Sealed clothes, Vaginal Swabs, Vaginal packing and blood sample have been handed over to I.O for further proceedings. OPINION In my opinion, she is not virgointacta, she has had sexual intercourse. However, for any fresh act, four vaginal swabs have been sent for DNA and Chemical Analysis. Referred for gynae opinion. Accordingly, I issued Provisional Medico-Legal Certificate of the victim, bearing ML No.21/2018, which I produce at Ex. 06/B and say it is same, correct and bears my signature. Furthermore, I issued Final MLC on 13.03.2020. I produce the same at Ex. 06/C and say it is same, correct and bears my final opinion including my signature. FINAL OPINION As per Chemical Analysis Report No.S-60/2018, Human Sperms were detected on Vaginal Swabs." 23. SIP Muhammad Tayyab produced the chemical report (Exhibit 10/F), which indicated the presence of human sperm. Even more significantly, the DNA report yielded a positive match when the semen found on the clothes and swabs of the victim was compared with the appellant's blood. This DNA report not only corroborated the victim's account but also linked the appellant to the crime. Furthermore, similar DNA reports were obtained in connection with four other offenses of a similar nature involving the appellant. (bold added) These reports provide substantial scientific evidence supporting the prosecution's case against the appellant which is sufficient proof against him being a habitual offender of committing rape with girls of tender age. Indeed, the DNA reports and other scientific evidence presented in the case constitute substantial proof supporting the prosecution's case against the appellant. This evidence not only bolsters the case but also indicates a pattern of the appellant being a habitual offender in committing rape with young girls. The combination of DNA evidence, victim testimony, medical evidence, and other supporting factors collectively serves as compelling evidence against the appellant, highlighting the gravity of his repeated offenses against innocent minor girls. (bold added) It is evident that in five following different cases of similar in nature involving the appellant DNA report obtained from Forensic & Molecular Biology Laboratory, LUMHS, Jamshoro : Case I.D:FIR No.Police stationDate of FIR: u/s:Name of Victim/ageMale DNA Profile obtained from Semen stains/S[rem Fractions Identified on: SA-47390/2015Quaidabad13/13/2015, U:S 376 PPCHina D/O Jan Bahadur, aged 8 yearsCloths of victim. Piece of cloth recovered from crime scene. SA- 246516/2016Shah Latif Town14/11/2016, U:S 376 PPCSana Bibi D/O Farooq Ahmed, Age:8 yearHVS sample and Cream color shalwar of victim. Black color pieces of cloth recovered from crime scene. SA- 377334/2017Quaidabad19/12/2017, U:S 376 PPCShinza D/O Muhammad Rafique, Age:07 yearsGreen color shalwar of victim
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SA- 492659/2017Shah Latif Town22/12/2017, U:S 376 PPCUm-e- Tayaba D/O Shahid Mehmood, Age 8 years1. Clothes of victim SA- 42234/2018Sukhan2/2/2018 U:S 376 PPCMarya D/O Muhammad Shakeel, Age 8 yearsLight Ferozi color frock of victim. Light grey color small qamees recovered from crime scene.
Such report was produced by the Focal Person Mr. Muhammad Hussain Soomro of DNA Laboratory LUHMS Jamshoro at Ex-7/D alongwith the report in the following terms: "FORENSIC & MOLECULAR
BIOLOGY LABORATORY, FOR DNA TESTING Sample received: Item No.Description Received from/Date R/MLC/No:/Seals 1.0Blood sample of accused Amjad Ali s/o Khairat AliBy hand from ASI Abdul Rehman, P.S. Sachal, Karachi, on 07/04/2018.MLC No:03333, Dated 07/04/2018, No of Parcel 01, No: of seals 01, MLO, JPMC Karachi
Item Description: Blood sample of accused Amjad Ali s/o Khairat Ali. Methodology: Deoxyribonucleic acid (DNA) was extracted from above items by Organic Extraction Procedures; and amplified by Polymerase Chain Reaction (PCR) using AmpFISTER Identifiler plusKit. The amplified products were analyzed on ABI 3130 Genetic Analyzer. Facts: The DNA Profile obtained from item: 0.1 (Blood sample of accused Amjad Ali s/o Khairat Ali) shares the required alleles with the male DNA profile obtained from the evidences of 05 sexual assault cases mentioned as above. Conclusion: Mr. Amjad Ali S/O Khairat Ali. (Item: 1.0) is the contributor of Male DNA/Sperm fractions identified on all the mentioned above evidences of sexual assault case of District Malir Karachi.(bold added) Sd/- Sd/- Mr. Muhammad Hussain Soomro Miss RizwanaKhanzada Forensic DNA Analyst Forensic DNA Analyst Department of Forensic Medicine & Toxicology Department of Forensic Medicine LUMHS, Jamshro& Toxicology LUMHS, Jamshoro Sd/- Sd/- Dr. Ali Muhammad Waryah, Ph. D Prof. Dr. Muhammad Akbar Kazi Incharge Chairman Molecular Biology (Genetics) Laboratory Department of Forensic Medicine LUMHS, Jamshoro & Toxicology LUMHS, Jamshoro 24. The trial court has duly considered both the ocular testimony (eyewitness accounts) and medical evidence and noted that they are consistent with each other. This consistency between the ocular…
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