Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Shahzad Khaliq VS Respondent: The State
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Muhammad Shahzad Khaliq vs The State Case No.: Criminal Appeal No. 151 of 2020 Date of Judgment:2022-01-14 Reported As: 2023 PCRLJ 1310 Result: Appeal dismissed
JUDGMENT
JUDGMENT MOHSIN AKHTAR KAYANI, J. Through this criminal appeal, the appellant has called in question judgment of the learned Additional Sessions Judge (West), Islamabad/GBV Court (East/West), Islamabad, dated 02.09.2020, whereby the appellant has been convicted and sentenced in case FIR No.276, dated 25.08.2019, under sections 337-B, 506(ii), 292-A, 292-C, P.P.C., Police Station Aabpara, Islamabad. 2. Succinctly, Muhammad Kamran (complainant) submitted a complaint for registration of an FIR alleging that on 25.08.2019, at about 06:15 p.m., Muhammad Shahzad (appellant) came to his house i.e. House No.38, Street No.31, Sector G-6/1-3, Islamabad and asked for complainant's son namely Zain ul Abideen, as such, the complainant being mistrustful of the appellant, inquired from his son about him, whereupon his son told the complainant that he is the person who made his nude video clip in the house of Hammad along with Sohaib Satti, Shahzeb Satti and Rayyan and now they are forcing him for immorality, else they will viral the video clip. On this, the complainant along With his brother Ahsan Abbasi apprehended the appellant and took his pistol. After registration of the aforementioned FIR No.276/2019, the learned trial Court recorded pro and contra evidence and vide impugned judgment dated 02.09.2020, convicted the appellant: i. Under section 506(i), P.P.C. and sentenced to imprisonment for two years; ii. Under section 292-A, P.P.C. and sentenced to 05 years imprisonment. iii. Under section 292-C, P.P.C. and sentenced to imprisonment for term of 14 years with fine of Rs.1,000,000/-, in default whereof, the appellant shall further undergo three (03) months simple imprisonment.
---
## Page 2
3. Learned counsel for appellant contended that the allegations levelled against the appellant are baseless and neither the alleged video has been made by the appellant nor the appellant was present at the time of making video; that the mala tide on the part of complainant is apparent from the fact that the appellant was allegedly arrested from Aabpara Market but in reality he was picked up by the complainant party from elsewhere with ulterior motives; that nothing incriminating material has been recovered from the appellant but such fact has been overlooked by the learned trial Court vide passing the impugned judgment, even otherwise, the learned trial Court has also not taken into account the fact that the prosecution witnesses have recorded different versions regarding the same alleged incident, which otherwise renders the prosecution story implausible and doubtful, based on which the appellant could not be convicted and sentenced as is done by the learned trial Court. 4. Conversely, learned State Counsel as well as learned counsel for complainant stressed that the appellant was apprehended at spot having possession of mobile phones and unlicensed pistol, even otherwise, the presence of appellant at the place of occurrence is evident from the CDR placed on record; that besides complainant's son's nude video clips and photographs, the appellant also recorded such indecent contents of other minor children; that the prosecution has produced sufficient evidence to link the appellant with the commission of offence, as such, the learned trial Court has rightly appreciated each and every aspect of the case and rightly sentenced the appellant vide the impugned judgment. 5. Arguments heard, record perused. 6. Perusal of record reveals that the appellant Muhammad Shahzad Khaliq has been convicted on the charge of making nude videos of Zain ul Abideen as well as of other minors, which is an offence of child pornography punishable under section 292-C, P.P.C., per se, he was also charged for seducing victims, including complainant's son Zain ul Abideen, with intent to involve him in sexual activities on the basis of his nude videos, which is an offence under section 292-A, P.P.C. Besides these two main charges, the appellant has also been convicted under section 506(ii), P.P.C. for extending life threats. 7. The prosecution in order to prove the case has produced PW-4 Muhammad Kamran Abbasi, who filed his complaint Exh.PC, based on which case FIR No.276, dated 25.07.2019, under sections 337-B, 506(ii), 292-A, 292-C, P.P.C., Police Station Aabpara, Islamabad, referred as Exh.PC, was lodged alleging that on 25.08.2019, at about 6:15 p.m., when he was present in his house, one young man visited his house and asked for his real son namely Zain ul Abideen (minor)/PW-6, on suspicion the complainant came out and asked his son about the visitor, who told him that he is the man who had made a nude video of him with the help Habib Satti and Rehan, as such, they also forced him for unnatural lust and extending threats that they will make viral the video. The complainant with the help of his brother Ahsan Abbasi caught hold of the said person, who had also drawn a pistol and extended life threats, though the people from neighborhood gathered there and police was called. The visitor was identified as Shahzad Khaliq (appellant), from whom pistol Exh.P4 was also recovered on spot vide recovery memo Exh.PD. 8. The Investigating Officer also got recovered mobile phone Honor 8X (P1) with two SIMs vide recovery memo Exh.PG. The complainant was cross-examined at length, who remained consistent on all material points qua the recovery of pistol, mobile phone and two SIMs, even the Investigating Officer PW-3 Muhammad Riaz/Inspector also arrested co-accused Rehan and got recovered his mobile phone, which was also used for making the alleged nude films and pictures of several minors, though it is not the case of prosecution that on a particular date or time the alleged video films were made, but the recovered mobile phone was transmitted to forensic expert of FIA after getting permission from SSP for forensic analysis, as a result whereof, the forensic expert report
---
## Page 3
(Exh.PM/1-24) as well as USB (P3) has been brought on record by the prosecution. The analysis report received from the National Response Centre for Cyber Crimes, dated 03.09.2019, reveals that: during the course of forensic analyses of mobile phone Honor 8X bearing IMEI 860023042006370, the data (porn videos/images, SMS, contact list with call logs) as per requirement of Investigating Officer has been extracted through forensic software and copied to USB for further proceedings. It is pertinent to mention that during analysis child pornography videos, adult pornography videos and gay videos have been identified. The Investigating Officer can identity more artifact as per requirement of case from attached USB. The summary of extracted data and few artifact is annexed as flag-a). The extraction summary of mobile phone Honor 8X reveals that 22800 images and 839 videos were recovered. However, the detailed summary appended with this case confirms making of porn videos of a hundreds of minors, who had been seduced and sexually exploited, allegedly raped by the appellant, who was also present in majority of the videos and photo images, with minor girls and boys. 9. The above referred un-rebutted piece of evidence has further been confirmed and substantiated by the first victim i.e. complainant's son PW-6 Zain ul Abideen, who was student of 10th class, aged 17 years, stated on oath that he was seduced by Shoaib Satti and Shahzad Satti, who took off his pant and got him laid down on a mattress in a flat, whereafter Hammad Malik and Shoaib Abbasi also reached in the room, whereafter Shoaib Satti asked Rayyan (acquitted accused) to make nude videos, which were transmitted to other mobile phones, as such, the appellant was also in possession of said nude videos and on the fateful day when the appellant visited his house, he was caught with a pistol when he pointed it out at his father, though he was caught with the help of his uncle PW-5 Ahsan Abbasi. During the course of cross-examination, PW- 6 Zain ul Abideen acknowledged that he was not blackmailed by accused Rayyan or threatened him qua the nude films nor he met him after the incident, neither the video was shown by the said accused to any of the inhabitants of the locality or Mohalla. He also acknowledged that the other alleged perpetrators namely Shoaib Abbasi and Abdullah Abbasi belonged to his village, whereas Amaar and Abdullah are not accused in this case nor are they witnesses. 10. Another victim of this case is PW-7 Syed Noman, a 15 years old boy, also recorded his testimony that he was student of 8th class and his friend Osama resident of Sindh, introduced him with appellant, who was a police employee i.e. the appellant, who later on started making photographs on his mobile and with passage of time he lured PW-7 Syed Noman and made his nude films, whereafter the appellant started blackmailing him for fulfillment of unnatural lust. The said victim also narrated an incident where appellant took him to a farm near Bhara Kahu and committed unnatural offence during taking shower. He also narrated another occasion when the appellant took him to Murree for a visit and tried to commit sodomy while taking him into a room and also made a nude film, as such, he in categorical terms stated that he was blackmailed. The said witness has also been cross-examined qua different dates and times qua alleged incident of sodomy and making of obscene videos, but no fruitful and favourable outcomes surfaced on record in favour of the appellant. 11. Now going to the legal aspect of this case, it appears that the offence under section 506(ii), P.P.C. is based upon the statement of PW-4 Muhammad Kamran Abbasi and PW-5 Ahsan Abbasi i.e. complainant and his brother, respectively, who are consistent on one point that the appellant had drawn a pistol from the folder of his Shalwar when he was being apprehended by them. The pistol P4, if seen in the scenario, it appears that these aspects have further been confirmed by PW-3 Muhammad Riaz/I.O. during the course of investigation. The Investigating Officer has also taken the CDR of both mobile phones of appellant and Rayyan Abbas, containing 36 pages (Exh.P2/1-36) and also brought on record 24 pages of two mobile phones along with one USB (P3), which has been
---
## Page 4
taken into possession vide recovery memo Exh.PB. The Investigating Officer has prepared site plans of the places where nude videos were allegedly prepared on the basis of statement of victims, who have pointed out the places through pointation memo Exh.PA. 12. The offences in terms of sections 292(a)(b), 293 and 294, P.P.C. are specifically meant to deal with the sale, distribution and publically exhibits obscene books in any manner put into circulation, exposure to seduction of any child, child pornography, sale of obscene objects to young person, and obscene acts and songs, whereas section 292-A, P.P.C. clearly spells out that whoever seduces a child for any sexual activity or expose him to obscene and explicit material, document film or video shall be guilty of exposure of seduction. Similarly, section 292-B, P.P.C. states that whoever makes, with or without the consent of the child any photograph, film, video, picture or representation or portrait through any means, whether by electronic, mechanical, or other means, of obscene or sexually explicit conduct, is considered to be guilty of offence of child pornography. OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 13. While going through the said provisions, this Court is mindful of the fact that Pakistan is signatory of the Convention on the Rights of the Child, therefore, the international standards regarding child pornography have to be considered in terms of Article 2(c) of the Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography, whereby "child pornography" has been explained as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes". Similarly, in terms of Article 8 of the Optional Protocol states the following: "The States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, in particular by: (a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses; (b) Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases; (c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a mariner consistent with the procedural rules of national law. (d) Providing appropriate support services to child victims throughout the legal process; (e) Protecting, as appropriate, the privacy and identity of child victims and taking measures in accordance with national law to avoid the inappropriate dissemination of information that could lead to the identification of child victims; (f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims. INTERNATIONAL GUIDELINES 14. Similarly, guidelines have also been provided for implementation of the Optional Protocol of the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, dated 10.09.2019, whereby the Committee has strongly encouraged the State parties to make full and effective use of crime scene evidence, including digital evidence and introduction of such evidence in the Courts, and of evidentiary rules, such as the Child Sexual Abuse Shield Laws. The State parties are under obligation to provide appropriate support and legal counseling to assist the child victims of offences covered under the Optional Protocol to the Convention on the
---
## Page 5
Rights of the Child at all stages of criminal justice proceedings, protect their right and interest as well as to ensure that the best interest of child is the primary consideration. In essence, the guidelines are reproduced as under for better understanding of the situation: a) Ensuring that legal and investigating procedure are child and gender sensitive. b) Forensic interviews should be conducted according to evidence based protocols in a child friendly environment. c) To enhance the evidential validity and to avoid secondary victimization of child. d) Confrontation with the alleged offender and multiple interviews should be avoided. e) The child testimony be taken under the conditions of due process outside the courtroom and be admissible as evidence in the Court. f) Protecting the privacy of child victim in investigation in trial procedure, as well as ensuring legal and practical measure to guarantee appropriate and sufficient protection of child victim from intimidation and retaliation. g) Using, where possible, appropriate communication technology to enable the child victim to be heard during the trial without being present in the courtroom. h) If such technological means are unavailable or child's presence is absolutely necessary during the trial, the State parties should ensure that the child is not confronted with the alleged perpetrator. i) Cases concerning the sale, sexual exploitation and sexual abuse of child should be expedited through priority tracking, continuous hearing or other methods and delays should be approved only after considering the child's view and best interest. j) The State parties to extend assistance and protection measure described above to the child victim and witnesses in criminal, civil and administrative procedure as appropriate. LAW IN JAMAICA 15. While going through the above referred standards and guidelines having been internationally provided and widely acknowledged all around the globe, this Court has also gone through the definition of child pornography in different jurisdictions, like in the United States of America, which defines it as, "child pornography is a form of child exploitation. Federal laws defines child pornography as any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old)". Similarly, in Jamaica, the Child Pornography (Prevention) Act, 2009 has been enacted defining the "child pornography" in the following manner: means (any visual representation that "child pornography" means: (a) any visual representation that: (i) shows a person who is, or is depicted as being, a child and is engaged in, or is depicted as king engaged in, sexual activity; (ii) depicts, for a sexual purpose, the genitals, breast, pubic area or anal region of a child; or (iii) depicts a child being subjected to torture, cruelty or physical abuse in a sexual context; (b) any audio recording or written material that has as its dominant characteristic the description, presentation, or representation, for a sexual purpose, of sexual activity with a child; or (c) any visual representation, audio recording, or written material, that advocates or counsels sexual activity with a child; "sexual activity" means actual or simulated: (a) sexual intercourse; (b) activity other than sexual intercom, whether involving persons of the same or opposite sex: (i) involving the penetration of the anus, vagina or mouth with any part of a person's body, or the anus or vagina with anything else; and (ii) which a reasonable person would consider sexual;
---
## Page 6
(c) touching of a sexual organ, or the anal region, of a person with any part of the body, or with or through anything else, in a manner which a reasonable person would consider sexual; (d) bestiality; (e) masturbation; or (f) sadistic or masochistic abuse; "visual representation", includes: (a) any image, whether made or produced by - electronic, mechanical or any other means; (b) undeveloped film; (c) videotape; and (d) data stored in electronic form capable of conversion into a visual image. (2) For the avoidance of doubt, in paragraph (a) of the definition of- "child pornography" in subsection (1), the reference to a person shall be construed as including a reference to an image resembling a person, which has been generated or modified electronically or otherwise, and any evidence that some of the principal characteristics shown may be those of an adult shall be disregarded, if the predominant impression conveyed is that the image shown is that of a child. LAW IN UNITED KINGDOM 16. Learned State counsel Ms. Khadija Ali, Advocate has further highlighted the concepts in the United Kingdom, the Protection of Children Act, 1978 has been enforced, which also covers the concept of indecent photographs or pseudo photographs of a child, whereby the making of such photographs has widely been interpreted by the Courts in a manner that, "make" is "to cause to exist", to produce by action, to bring about", as such, it has been settled that the act of opening an attaching to an e-mail containing an image has been considered a making as held in (R. v. Smith [2003] 1 Cr. App. R.13). Similarly, downloading an image front a website on to a computer screen also falls within the definition of "to make" as held in (R. v. Jayson [2002] 1 Cr. App. R.13). It was also held that storing an image in a directory on a computer, although depending on where that image is stored, this could also be a possession charge under section 160 of the Criminal Justice Act, 1988 as held in (Atkins v. DPP; Goodland v. DPP [2000] 2 Cr. App. R.248). The accessing a pornographic website in which indecent images appeared by way of automatic "pop-up" mechanism also attracts the concept of "to make" as held in (R. v. Harrison [2008] 1 Cr. App. R.29). This Court has also been guided by the learned State Counsel, Ms. Khadija Ali, Advocate High Court, who has explained the concept of distribution of indecent photographs in the Protection of Children Act, 1978, wherein it was held that "a person is to be regarded as distributing indecent photographs or pseudo photographs if he parts with possession of it to, or exposes or offers it for acquisition by another person". The placing of an order in response to advertisement offering, the supply of indecent photographs of children did amount to incitement of distributing such images under the common law despite willingness of those making offer to supply them as held in (R v. Goldman [2001] EWCA Crim 1684). 17. While dealing with the offence of child pornography, which also covers the concept of possession as a primary ingredient of those explicit pseudo photographs or any sexual explicit images of a child found in custody of the accused, the prosecution is under obligation to prove that the accused person must have the custody and control of the photographs in question, even all those persons are also to be considered accused persons who are sharing the network of those images after its downloading from any network and place them in folder on their computer or any device, including the mobile phone from which they could be accessed by other members, therefore, any person, who is transmitting those images to other, is also guilty of the offence as held in (R v. Dooley [2006] 1 Cr. App. R. 21): Similarly, a person who stores indecent photographs on his computer and enables others to view them via the internet by the provision of a password does
---
## Page 7
possess them with a view to them being shown as held in (R v. Fellows and Arnold [1997] 1 Cr. App. R. 244). 18. In UK jurisdiction, the concept of possession has not been defined separately in the Criminal Justice Act, 1988 and Protection of Children Act, 1978, which has been developed through case law, whereby certain tests have been laid down to determine the possession, such as: (a) Images must be in custody or control of suspect i.e. so that they are capable of accessing or in a position to retrieve the images; and, - (b) The suspect must have shown that they possessed the images or group of images on relevant device / devices. Similarly, the concept of deleted images has also been taken into account by the UK jurisdiction in cases of (R v. Porter [2006] 1 Cr. App. R. 25; R v. Leonard [2012] 2 Cr. App. R. 12). The UK Courts also dealt with the concept of live streaming, though there is no forensic trace left on device used to view that image or video which has once been viewed. In such scenario, the person who has merely viewed an image or video would not retain any copy of it on their device, but they have been considered to the extent that it has been made an image by causing it to be displayed on that device, such concept has been explained in (R v. Smith and Jayson [2003] 1 Cr. App. R. 13), wherein the Court accepted that causing an image to be displayed on a computer screen amounted to making it. 19. The UK authorities also developed a Child Abuse Image Database (CAID) to assist the police with the cataloging and grading of indecent images of children and for victim identification purpose. The said database is to be called as secured database of illegal images of children, which has been maintained by UK law enforcement and they can seize those images worldwide, including the UK, by way of using a software to review the files on any device which has been seized and then compare them against known data such as keywords or meta-data, LAW IN INDIA 20. This Court has also been assisted by Ms. Khadija Ali, State Counsel and Barrister Muhammad Mumtaz Ali, AAG along with the FIA technical experts, whereby the regional model has also been explained, in which the child pornography has been dealt with in Indian jurisdiction under the Protection of Children from Sexual Offences Act, 2012, whereby section 2(1)(da) explains the "child pornography" in the following manner: Any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child. Similarly, section 13 of the aforesaid Act of 2012 defines the use of a child for pornographic purposes in the following manner: 13. Use of child for pornographic purposes. --Whoever, uses a child in any form of media…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.