AMJAD ALI @ ZAKIR @ SAJID S/O KHAIRAT ALI (Appellant) VS THE STATE (Respondent)

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Vt CrH-n^ f!r:-l^o"r<rt -^X D * \= {t,

r IN THE HIGH COURT OF SI NDH KARACHI Prescnt:

Mr, lrctlce Mohauntad Rarlm Khan Agha lustlce Mr* I(auscr Sultana Hussaln,

Spl. Criminal A,T.fail Appeal. No.198 of 2022.

Conf. Case No,77 of 2022

Appellant: Amjad Ali @ Zakir @ Sajid s/o I(hairat Ali through Mr. Moula Bux Bhutto, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General.

Date of hearing: 24.05,2023

Date of |udgment: 29.05.2023-

TUDGMENT

MOHAM AD KARIM K HAN AGHA, IT The appellant Amjad Ali @ Zakir @ Sajid s/o. I(hairat Ali has preferred the instant appeal against the judgment dared 29.70,2W passed by the Leamed Anti-Terrorism Court No.X, Karachi in Special Case No.633/2018 arising out of Crime No.659/2077 U/s.376 PPC read with section 7 of ATA, 1997 registered at P.S. Shah Latif Towry Karachi whereby the appellant was convicted and sentenced to death subject to confirmation by this court.

2.The brief facts of the prosecution case are that on22.72.2077 al2l45 hours complainant namely Shahid Mehmood S,/o. Faiz Muhammad recorded his statement U /s.154 Cr.P.C. before the Police narrating therein that on the said day, vi2.22.72.2077, he was present at his work. In the meantime, his wife namely Mst, Sumaira Yasmeen informed him tfuough mobile phone call to immediately reach home as some problem had

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occurred with their daughter namely Umm-e-Tayyaba. On receiving such information, complainant rushed to his home and reached there at about 07:00 p,m. where he was inlormed by his wife that she had sent their daughter Umm-e-Tayyaba for purchasing Roti (Bread) from Tandoor at Maghrib prayer time. According to the complainant, his wife further told him that at 05;00 PM, their daughter came back home while crying and t Muttot tt Dal Arlt

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her worn Shalwar was etalned wlth blood slnce gomebody had lorclbly I comrnltted Zlna wlth her. To thle, complalnant Inqulred from his Daughter Unrm-e-Tayyaba (aged 08 yeare "the vlctlrn") as to what had happened to whleh ehe lnformed to her father that she had been taken by Bomeons ln the bughe bstdes Rallway Llne and as per vlcHm said person had forcibly cornmltted Zlna wlth her. Thereafter, complainant along with his wlfe took thelr lnjurd daughter (vlctim) Umm-e-Tayyaba (aged 08 years) to Emergency Ward No.O& Gynae Ward atlPMC, Karachl where the mlnor victlm was gtven medlcal tseahnent and her medical examlnation was also eonducted by the concerned WMLO, Subsequently, in the light of above referred statement U/e. 754 Cr.P.C. of the complainant, trutant FIR bearing No,659/2U17 U/s, 376 PPC was registered at PS. Shah LatifTown, Karacht agairut an unknown accused.

3.After registration of the FIR and alcr completion of formal investigation I.O, submttCd the charge sheet agairut the accused.

4, The proseortion in order to prove its case examined 1.4 witnesses and exhibited varlow documents and other items. The statement of the accused was recorded under Sectlon 3AQ) CrP.C ln which he denied all the allegatioru leveled against him and daimed his tnnocence. However, he did not give evidence on oath and dtd not call any DW in support of his defence case.

5.After heartng the parties and appredating the evidence on record the fial courtconvicted the appellantand sentenced hlm as stated above, hence, the appellant has filed thts appeal agalnst hls convicHon.

6, The facte of the case as well as evidence produced before the trial court flnd an elaborate mention ln the impugned judgment dated 29.7021122 passed by the tsial court, therefore, the same may not be

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reproduced here eo as to avold dupUcaHon and uruecessary repetiHon.

7, Leamed couruel appearlng on behalf of the appellant contended that he was lnnoeent of any wrong dolng and had been falsely impllcated ln thie caee by the potlce ln order to show there efflclency; that there was no eye wltness evldence agalrut trlm, that there waa no last seen evidence Mtuonqdfdl z

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agatnst hlm, that hts conlesslon belore the pollce was lnadmtssible in evldence, that no hulla had been glven of hlm ln the FI& that he was shown to the wlbress before the ldenHllcaHon parade whlch was delayed by 14 days; that the DNA report could not be safely relled upon; that the CCTV footage was lnadmlsslble and that for any or all of the abve reasons he should be acqultted of the charge by belng extended the benefit of the doubt. In support of hls contendoru he has placed reliance on the case of Babar u The State ( 2020 SCMR 761), Khan v. The State 09% P Cr.LJ 433), Muhammad Akram u The State (2m9 SCMR Er0l, Taiq Penrez v. The Shte ( 1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2m SCMR 1221), Muhammad Zaman v. The State and others

( 2014 SCN4R 749).

8.On the other hand learned AIrG who was also representing the complainant has fully supported the impugrred iudgment and has contended ttrat the prosecudon has proved its case beyond a reasonable doub,t based on the evidmce of the victim who correctly identified the appdlant as the person who raped her before an idendfication parade; ftat CCTV footage showed the victim and the accused together on the date of the rape; that a positive DNA report conclusively connected the accused to the rape of the victim as did the chernical report and medical evldencei that the appellant was a serial rapist of minors and had already been convicted by a Uial court of one rape of a minor and his CRO showed that many other cases of a similar nature were oubFanding agairut him and as such the appeal should be dismissed and due to the heinoue nature of the crime the confirmation reference be answered in the affumaH.ve. In support of hls contentioru he has placed reliance on the cases of Alt Haider allae Papu v. fameel Hussaln and others (PLD 2021 SC352l,lmran All v. The State (2m8 SCMR 1372), Shahzad allas Shaddu and othere v, The State (2002 SCMR 1009), Zahtd and another v. The State (2020 SCMR 590), Atlf Zareef and othere v, The State (PLD 2021 SC

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550)and Muhammad Zaman v. The State (2007 SCMR 813).

9.We have heard the argumenb of the learned counsel for the appellant as well as learned APG who was also representing the complalnant, gone through the entire evidence whtch has been read out by the counsel for the appellant, and the lmpugned iudgment with tlreirl MttutuAdl 3

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able assletance and have corutdered the relevant law lncludlng that cited a at the bar.

10.After our reaesessment of the evldence we llnd that the prosecution has proved lb case beyond a reasonable doubt tluough the evidence of PW's, 6;p6l6lly the blood found at the wardat, the medlcal evidence and reporb and DNA results that on 22,72,2t17 at about 18@fus minor girl Tayyaba (the vlctlm) was raped at rallway llne, bushe, Z,alftar Town, Malir, Karachl,

11.The only lssue therefore before us ls who raped the victim at the aforesaid Hme, date and locatlon.

7L After our reasses.sment of the evtdence we find that the prosecution has proved its case beyond a reasonable doubt against the appellant based on the pardcular facb and circumstances of the case and that each criminal case must be dedded on its own merits for the following reasorui:-

(a)The FIR was lodged by the complainant with promptitude and even prior to lodging the FIR an enky was made at the concerned PS where the complainant wmt to get a letter to enable the victim to be medically examined. As such there was no time to cook up a false case against the appellant. Even otherwlse the FIR vras against an unknown person so there was no attempt to falsely tmpltcate the appellant whose ldentity at that time the victim did not know.

O) The vicdm is the eye witnes to the incident.

Admittedly the victim was 10 years old at the time when she gave her evidence but after questionlng the court found her to be competent to $ve evidence. Accordlng to her evldence on ?2,72,M7 she had left home ln order to buy lrread as instructed by her mother, 6he went to the hotel ln front of her house lor thls purpose where a man who sald he was a frlend of her father and offered to buy her a ball asked her to I accompany lrlm, She refused and he took her forcefully after olapplng her, He then took her towards bushes where he removed her pyJama and thereafter hu madu her ble€d from her anal and urlnal parts. He then left her and she returned home and lnformed her mother ahut the lncldent who told her father (the complainant).Her father then tnlormed the police and she wae hken to the JPMC for medical examination. Thls aspect of the case is corroborated by the

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complalnant ln hls evldence, the police wlhrsses tndudtng PW 2 Saleem Ahmed and PW 1 Dr, { Khursheed who carrled out her tnedlcal otaminatlon. Acrordlng to the vlctlm'e evldence on 24.04.2O8 she ldenHfled the appellant as the person who raped her before an ldenHflcatlon parade conducted W magtstsate PW 10 Azhar Kalhoro who also corroborated the same ln lrls evldence.

Admtttedly, the vlctlm had not met the appellant before and she gave no hulla of hlm however the rape took place ln day llght and she would have been with him for at least 30 mlnutes whlle he took her away lrom the hotel to the ratlway llne where he raped her. She would have also sem the appellant from less than 6 inches during this entire period and as such she could easily idenHfy him before an identity parade with a specilic role which she did only a few months alter the incident. Such a face would have been branded in her meurory and she would have been unable to forget iL She gave her evidence in a stsaighdonuard and natural rnanner and was not dented during cross s<amination Neither she nor her trather who wae the complainant or any other wikress, family or otherwise, had any reason to falsely implicate the appellant in this case and as such we believe her evidence, which ts also supported by the medical evldence of her rape, and in particular the iorrect ldentiffcation of the person who raped her being the appellant who she picked out at an identity parade, We can convict on the basis of her testimony alone if we find it to be reliable, trustworthy and confidence inspirinp which we do, provided that it is corroborated by evidence of rape. In this respect reliance is placed on the case of Zahtd (Supra).The fact that the identification parade was also carried out with some delay is also not relevant as based on ttre particular facts and circumstances of this case the accused was only arrested ln another case of atternpted rape tn whlch he confessed ln this case. In any event he was brouglrt before an identification parade wlthln 14 days of hls arrest and he did not deny the ldentiftcatlon parade ln his 5.342 Cr.PC Btatement. In this respect rellance is placed on the case of Muhammed Zaman (Supra).Thus, we believe the evldence of the vlctlm and her correct ldenHfication of the appellant who raped her,

(c)The evidence of the vlctim is corroborated by CCIV footage which was duly exhiblted and was nor denled by the appellant ln his &ction 342 Cr.I€ statement which ehows the appellant with the victim on the day of the incident around about the Hme of the incident whldr completely defeab his defence of being falsely implicated in the case by the police.,

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(d)As found earlier the medlcal evldence whereby the vicdm was examlned on the day of the lncident I concluded as per the evldence of PW 1 Dr.Khursheed that the vlctlnn had been subJect to a fresh case of sorual lntorcouree.

(e)That tlro chemlcal report found eemen on the clothes of the vlctlm as well as blood.

(f ) Most slgnlflcantly the DNA report was posltive ln that the semen found oil the dothes and swabs of the vlcdm when mahhed wlth blood of the appellant produced a poslttve report ln the followlng terms;

FORENSIC & MOLECULAR BIOLOGY LABORATORY

FOR D.N.A. TESiTING L AOUAT UNIVERSITY OF

MEDICAL &HEALTH S CIENCES,IAMSHORO.

BIOLOGYLA BO FORDNATESTING

Sample receiried:

Item Description Received R/MLC/No:/Seals No. from/Date

1 Blood sample By hand from MLC N33gr, Dated of accueed ASI Abdul 07.U.2918, No. of Parcel Amiad Ali S/o. Rehman, P.S. 01, No. of seals 01, MLO, Khairat Ali Sachat l(arachi on IPMC Karachi.

07.042Ut8

ItemDsaiption:

1.0 Blood sample of accueed Amjad AIi S/o. Khatrat Ali Methodologv:

Deoxyribonucleic acid (DNA) was o(tracted from above items by Organic ExtracHon Procedures; and amplify Polymerase Chain Reaction (PCR) USING AmpFISTR@ Identifiler @ PlusKit, The ampllfied products were ar.alyz* ABI 3130 GeneHc Analyzer.

Reeulte:

The DNA Proflle obtolncd from ltem: 1.0 (Blood sample of accused A Amjad Alt S/o Khalrat All) eharee the req alleles wlth the male DNA profile obtalned from the evldencee of 05 eexual assault cases mentioned ae above.

Concluqiron3

Mr. Amiad All S/o. Khalrat AIl, (Item 1'0) ie the contrlbutor of Male DNAy'Sperm fractlons identlfted on all the mentloned above evldences of sexuil aeeault case of Dietrict Malir Karacht. (bold added), MnwsodArlt 6

sd/- sdl- Mt. Muhommad tiuesaln goomro Mlss. Rlzwana Khanzada Forenslc DNA Aanalvst Porerulc DNA AanalYst Deparhrurt of Borenll. Mudldn. Deparhhent of Forerrslc Medleine 'ri &ToxlcoloXy &Todcology, LUMHS,lamshoro LUMllS,lanshoro

6d/- il/- Dr. All MuharnmodWoryah, Ph.D Prof. Da Muhammad Akbat l(azl, lnchorgp Chslrman, Molecular Dlology (G6noHcD) Laboralory, Departrnent of Forenslc Medlclne & LUMHgtamehoro Toxlcology, LUMll9, lamshoro.

G) Wttlr regard to the safe chaln of custody lt was held ln Zahld's case (Supra) whlch concemed rape and the safe custody of DNA swabs belng sent to the chemlcal examlner as unds at para 5 in materlal par$

"T'lu dumictrl eilminerts report produed bV tl" Indy doctor states tltat tlle seds of syecimms *nt tor demicnl exnmiwtion twe reeioeil intnct and it toas the dumial examiwr who lud hoken open tlu sals, tlurefore, tle qntention of tlu petilioners' learned rcunxl regmding tlu sale transmission of tlu specim.ms is diffsunhdbthby thb fact as well as by tlu frct that no question wrc put rcgmding tampeing oJthe eaidvab."

The DNA correpondsrce and report mentioned above reveals that the same sihration applies in this case.

We find that the report proves two thing;s concluslvely;

(i)That the complete chain of custody was mainbined for all items which were oent for DNA testing. No allegation was even made of tampeilng with any part of the DNA report or the ltems which were sent for DNA testing and as zuch the DNA report was legally admissible in court and indeed went unchalleaged by the appellants.

(ii)That the appellant raped the victim.

(h)With regard to the results of DNA testing it has recently been held by the eupreme court in the case of All Hatder @ Pappu v Jameel Huosaln, ek (PLD 2021 SC 362) that DNA ts the strongest plee of corroboratlve evldence and can even be regarded as the gold etandard ln tlrle retpmt as eet out below ln material part: ll i'DNA, ehonseat conoboratlae ulece of anlilence todau.

10, DNA anlderce ls consldared as a gokl stawlarul to establlsh the klenflty ol an dccuseil Ae a sequel ol abooe illsancslott, lt can salely be conchtiled that DNA Tes,t ilue to Its accuracy anil cottchtskeress ls one oJ the sfiongest conoborqtloe plece ol atklenca Iu Salmall. Akram Rata case tltls Court has lrckl tlut DNA test help prooliles the courts t^ Mdtofld fdl 7

tlrc iilaitty of the peryetratu wtth hlgh degree ol conflilence, anil by ustug of flre DNA technology the coarb arc la a better posltlott to rcach at a tust concluslon whereby conolctlng tln nal alJprlts araid a;cluilhrg the potentlal r{ suspects, as well as, exoneratlug wrongfully lnooloeil accused, DNA test wlth eclentlflc urtalnty arul clarlty Polnls touaflls the perpetrator and ls, lherefore, conslderetl one of the strcngest corroboratbe eaklence today, especlally Itt cases of rapa The asefulnesr ol DNA nnnlysls, lwtwer, depnds noslly on lhe sHll, nblltty nnd lnlegrlly sltoun by tlu irnrslignHng offcyrc, u'ho ore lhe firsl lo nrrlue nl llu scene ol tlu crinre. Unless ihe ntdenr' ls prcperly documenled, collectetl, pactnged and pre*ned, il tttll nol nrcel tlu bgal nnd scienllffc requimrcnkfir adrnrcsi&ility f nto n aurt oflax,. (bold added)

(i)That the police PWs had no enmig or lll wlll towards the appellant and had no reason to falsely implicate him ln this case and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon. In this rcspect relianc€ is placed on Muehtaq Ahmed V The State (2020scMR474).

[) That all the PW's are consistent in their evidence and even if there are some contsadictions in their evidence we consider these conhadictions as minor in nature and not material and certainly not of zuch materiality so as to effect the prosecrrtion case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan V State (1995 SCIvIR 1793) and l(hadim Huesain v. The State (PLD fl)10 Suprerne Court 559).

(k)AII the PW's gave there 5.161 Cr.PC statements with promptitude which left no time for collusion or concoction and thse were no improveurents in the evldence which they gave in court as PW's under oath so as to render their evidence at trlal unreliable.

0)None of the evidence of any PW was dented on cross oramination so as to render their evidence unreliable. Rather such evldence was glven ln a shaightforward manner and was confldence lnspirlng,

(m)That lt does not appeal to loglc, reason or conunoncense that tlre complalnant would allow the real raplst of hie baby chlld to get off ecot free by aubstltutlng him with lnnocent peoplo. In thlo respmt rellance ls placed on / Allah Dltta V Statc (PLD 2002 EC 52),

(n)That the appellant hae already been convlcted for the raPe of one mlnor and from hls CRO where he faces many cases of rape of mlnore he appearo to be a serlal rapist of minore.

(o)We have also examined the defence case which in effect ls false implicaHon. The appellant chose not to Bive evidencT tuhadral 8

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on oath and dld not eoll a slngle DW ln support of hls defencs case and as such ln tho faco of tho abovs montloned n evldonco wo dlsbollove ths defsnco caso ospeclally 0s no wlhess, pollco or otherwlse, hnd ony reason lo lmpllcntc hlm ln a falso ease.

13.With regard to sontonclng we flnd that ths appollont hae brutatly raped a mlnor chlld anrl robbed hsr of hor youth and lnnocence an cvent which may evon cause her grent trauma and psychosoclal damago whlch might effect her whole future. Tho crlmo of rope ls ln any evont an abhonent cr{me, Tho rapo of a chlld ls an affront to soclety ltself where each patent expects that thelr chlld can play freely and enfoy lhelr chlld hood under the Starc'-s protecHon rather than worry themselve eick each tinre thelr child goes outslde of thelr house. In such qases no leniency can be expected and lnstead a detetrent message must be sent by the courts to thme who commlt such qlmes that lf proven they will face the full might of the law and will be dealt wfth by an lron ftst by belng awarded the maximum sentence applicable under the law especially in a case like lhis where there are no mitigating circumstances and only aggravating circumstancts and as such the appellant's death sentence ts upheld with all the other sentences handed down ln the impugned judgment.

74.The appeal ts dismissed and the confirmation reference is answered in the affirmative.

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