Abid Ali Vs The State etc

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.20513/2021 (Abid Ali vs. The State and another)

Crl. Appeal No.20738/2021 (Shafqat alias Bagga vs. The State and another)

Crl. Appeal No.26164/2021 (The State vs. Abid Ali and another)

Capital Sentence Reference No.03-T/2021 (The State vs. Abid Ali and another)

JUDGMENT

Date of hearing: 03.06.2026 Appellant Abid Ali Mr. M. Sher Gul Qureshi, Advocate. by:

Appellant Shafqat Ch. Muhammad Qasim Arain, Advocate. alias Bagga by:

State by: Ms. Rahila Shahid, Deputy Prosecutor General.

TARIQ MAHMOOD BAJWA, J.:- Through this single judgment, we intend to decide Crl. Appeal No.20513/2021 titled: ‘Abid Ali vs. The State and another’, Crl. Appeal No.20738/2021 titled: ‘Shafqat alias Bagga vs. The State and another’, Crl. Appeal No.26164/2021 titled: ‘The State vs. Abid Ali and another’, as well as Capital Sentence Reference No.03-T/2021 titled: ‘The State vs. Abid Ali and another’, as these are arising out of one and the same judgment dated 20.03.2021 (hereinafter ‘the impugned judgment’), passed by the learned Judge Anti-Terrorism Court-I, Lahore/Camp at District Jail, Lahore (hereinafter ‘the trial court’).

2.Abid Ali son of Akbar Ali, Caste Jatt, resident of Chak No.160/HR, Tehsil Fort Abbas, District Bahawalnagar and Shafqat Ali @

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Bagga son of Allah Ditta, Cate Muslim Sheikh, resident of Chak No.192/7- L, Tehsil Haroonabad, District Bahawalnagar (hereinafter ‘the appellants’) were implicated in case F.I.R. No.1369/2020, dated 09.09.2020, registered under Sections 365-A, 392, 376(ii), 427, 201, 34, 337L(ii), 337F(i) of the Pakistan Penal Code, 1860 (hereinafter ‘PPC’) and Section 7 of the Anti- Terrorism Act, 1997 (hereinafter ‘ATA’) with Police Station Gujjer Pura, District Lahore. The trial court seized with the matter vide the impugned judgment, convicted and sentenced the appellants as under:- ➢ Under Section 376(ii) PPC, Both appellants were convicted and sentenced to Death. They were ordered to be hanged by their necks until they are dead.

➢ Under Section 365-A PPC, Both appellants were convicted and sentenced to imprisonment for life and properties of both the convicts/appellants were ordered to be forfeited in favour of State.

➢ Under Section 392 PPC, Both appellants were convicted and sentenced to imprisonment for 14 Years RI with fine of Rs.2-lac and in default of payment of fine, each convict shall undergo six months

S.I.

➢ Under Section 440 PPC, Both appellants were convicted and sentenced to Five years R.I, each with fine of Rs.50,000/- each and in default of payment, each convict shall further undergo six months

S.I.

➢ Under Section 337F(i) PPC, Both appellants were convicted and sentenced to pay Daman Rs.50,000/- each to the victim.

➢ Under Section 337L(2) PPC, Both appellants were convicted and sentenced to pay Daman Rs.50,000/- each.

➢ All sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was extended to each convict.

3.The prosecution story of the case mentioned in the FIR (Exh.PA), lodged on the basis of complainant’s (PW-35) application for registration of FIR (Exh.PA/1) is that on 09.09.2020 at about 3:00 a.m., the complainant, Sardar Shahzad (PW-35), received a call from his close relative, Mst. Sana (Pseudonym) (PW-32/victim), informing him and conveying her location that her vehicle had stopped due to shortage of fuel. The complainant advised her to contact the Motorway Police Helpline (130) and immediately set out from Gujranwala along with his friend Junaid (since given up). At about 4:00 a.m., they reached the indicated location where

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they found the driver's side window pane of the vehicle broken, blood stains visible on the door, and the vehicle otherwise abandoned. Alarmed by the situation, they commenced a search for the victim and shortly thereafter noticed her approaching with her children from a ‘katcha path’ situated between the motorway and the adjoining jungle. The victim disclosed that while she was waiting for fuel, two unknown persons, armed with a pistol and a danda, arrived at the scene, smashed the vehicle's window, forcibly dragged her and her children out of the car, and took them into the nearby jungle where she was subjected to rape by both assailants one after the other. She further alleged that the culprits decamped with her handbag containing cash amounting to Rs.100,000/-, two gold bangles, one bracelet, the registration book of the vehicle, and three ATM cards.

4.Upon completion of the investigation, a report under Section 173 Cr.P.C. was duly prepared and submitted before the learned trial court. The trial court formally indicted the appellants to which they pleaded not guilty and claimed trial. During the trial proceedings, the prosecution produced thirty-seven (37) prosecution witnesses in support of its case. Following the prosecution’s evidence, the statements of the appellants as required under Section 342 Cr.P.C. were recorded. In their statements, they pleaded their innocence and refuted all the allegations made against them in the prosecution evidence. Upon the completion of the trial, the trial court convicted and sentenced the appellants as mentioned and detailed above.

5.We have heard the arguments advanced by learned counsel for both sides and perused the record available on the file.

6.The occurrence has taken place on 09.09.2020 at about 3:00 a.m. and the FIR was registered at 10:10 a.m. on the same day. Considering the traumatic nature of the occurrence, the nightmare suffered by the victim, the time consumed in tracing and rescuing her, and the subsequent reporting process, the intervening distance between the place of occurrence and police station, the FIR was lodged with reasonable promptitude. Such prompt reporting lends assurance to the prosecution version and unmistakably reflects the spontaneity, immediacy and urgency with which the occurrence

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was brought to the notice of the relevant police, leaving no room for deliberation, consultation or fabrication.

7.‘Victim’ is not merely the word of six letters rather in the offences relating to the sexual assault, is the body, with whom detestable and abominable sexual act was committed, therefore, the solitary statement of the victim is sufficient to uphold a conviction, provided it is trustworthy, confidence-inspiring, and corroborated by other evidence. The second source of Islamic Law, also recognized/endorsed it. It is provided at page 12 (v) of the book “Islamic Law of Evidence” authored by Dr. Anwarullah, Senior Advisor, Federal Shariat Court of Pakistan, published in 1994 by ‘Shariah Academy, International Islamic University, Islamabad.’ as under:- “Proof of rape. According to some jurists if a woman was subjected to zinā by force whether through abduction or otherwise her single testimony as victim will be sufficient proof for the offence of the offender and he shall be liable to hadd of zinā or any other grave punishment and she shall not be punished at all. It is based on the hadith of the Holy Prophet related on the authority of Wa'il Ibn Hajar who stated that a woman was going to mosque for her morning prayer in the period of the Holy Prophet. While she was on the way in darkness that a person met her and made sexual intercourse with her forcibly and then ran away. She was there when a person came to her and she told him the incident. He went in search of the culprit. Meanwhile some other persons came to her and she related the incident to them. They also went in search of the actual culprit. On the way they met the first man who was also searching the actual culprit but was in terrible condition. They caught him and brought him to the woman. She confirmed that he is the same person who committed sexual intercourse with her forcibly. Then they all came to the Holy Prophet. The Holy Prophet said to him, "Have you committed this offence?" He remained silent. The woman admitted before the Holy Prophet that this is the same person who made illicit sexual intercourse with her. The Holy Prophet ordered to stone him to death1. However such testimony must be supported with other corroborations failing which the accused shall not be punished with hadd.”

It is settled principle laid down by the Law as well Courts that in such cases, multiple witnesses are not required rather the testimony of the victim, if Abu Dawud, Al Sajistani, Sulayman, Al-Sunan, 388.

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found credible and supported by medical and forensic evidence, carries significant probative value. Reliance in this respect is placed on “Ibrar Hussain and others versus The State and another” (2007 SCMR 605) and Haris Ali versus Muhammad Shabbir and another” (2026 P Cr. LJ 526).

8.The pivotal question that arises for determination is as to how the appellants were brought within the net of suspicion and ultimately connected with the commission of the offence. The answer lies in a seamless chain of scientific and investigative evidence, each link reinforcing the other. Rizwan Khan, Incharge Crime Scene Unit, Punjab Forensic Science Agency (PW-7), while processing the crime scene, observed blood stains on the exterior side of the driver’s door of the victim’s vehicle and collected blood swabs for DNA profiling. These swabs were duly forwarded to the Punjab Forensic Science Agency for forensic examination. The investigation thereafter achieved a decisive breakthrough when Qazi Laeeque Ahmad, Junior Forensic Scientist (PW-23), testified that the DNA profile generated from the blood recovered from the vehicle was searched against the PFSA DNA database and was found to match the DNA profile of appellant Abid Ali. The source and authenticity of that DNA profile were independently established through the testimony of Waseem Ahmad, Junior Forensic Scientist (PW-22), who deposed that appellant Abid Ali's DNA profile had previously been generated and preserved by PFSA in connection with FIR No.264/2013 dated 19.06.2013, Police Station Fort Abbas, District Bahawalnagar. Thus, the blood recovered from the very scene of occurrence scientifically and unequivocally connected appellant Abid Ali with the crime. This crucial forensic lead became the starting point of the investigative trail. Muhammad Asif, SI/Investigating Officer (PW-34), thereafter obtained the Call Detail Record of appellant Abid Ali and on its examination observed that on the fateful day the same was in constant contact with mobile number 0305-7520487. Although the SIM stood registered in the name of Allah Ditta, investigation revealed that it was actually being used by his son, Shafqat alias Bagga, the co-appellant. In this manner, the investigation progressed from a scientific DNA match at the crime scene to the identification of appellant Abid Ali and thereafter to the discovery of his nexus with appellant Shafqat alias Bagga. The implication

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of the appellants, therefore, was neither accidental nor the product of guesswork; rather, it emerged through a logical, objective and unbroken chain of circumstances commencing with forensic evidence recovered from the scene and culminating in the identification test/parade and linkage of both appellants.

9.Before re-assessing the testimony of the victim on the touchstone of the criticism raised by the learned defenders, it is not out of place to mention here that the victim is an educated lady holding a Master's degree in English. The victim Mst. Sana (Pseudonym) (PW-32/victim) appeared before the Court and gave a vivid, natural and confidence-inspiring narration of the incident. According to her, on the motorway her car was stopped being ran out of fuel, both accused/appellants attracted from the front side of her vehicle while its lights were on, and as she and her children were being forcibly taken towards the jungle, a passing vehicle illuminated the area with its high beams. Thus, the defence contention regarding absence of light is devoid of substance and the possibility of mistaken identity stands effectively ruled out, particularly when no suggestion was put to her that the lights of her vehicle were not functioning or were switched off at the relevant time. The exact words from her examination-in-chief are as under:- “When my call was picked by the officials of emergency No.130 and I disclosed to them that fuel of my car has been ran out. I was waiting for help. Meanwhile two unknown accused persons came there from front side of the vehicle (At this juncture PW pointed out towards the accused who are present in accused box and maintained that said accused persons are those accused persons who came in front of the vehicle and for this purpose screen was removed for a moment and again installed. PW is claded in abaya and she is also wearing a face mask). One of the said accused was armed with pistol (at this juncture PW pointed out towards Abid accused and maintained that he was having pistol in his hand at the time of occurrence and PW pointed out towards Shafqat accused and maintained that he was armed with Danda). They forcibly asked me to come out of my vehicle. Accused person armed with pistol broke down the window pane of driver side of my vehicle (PW pointed out towards Abid accused and maintained that he is a person who broke the window pane) and accused persons took out my hand bag on gun point from my vehicle containing cash Rs.1- Lac, two gold Kara, a bracelet, registration book of the vehicle, Identity card and three ATM Cards. Accused present in the court forcibly took out me and my children from the vehicle. Meanwhile,

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a vehicle having high beam passed from there. I asked for help but he did not stop. Accused having pistol indulged in assaulting me and my children (PW pointed out towards Abid accused) whereas accused armed with Danda took my children towards jungle after crossing the barrier of motorway (PW pointed out towards Shafqat and maintained that he took my children towards jungle). Then accused forcibly took me and my children in the jungle where accused armed with pistol asked me to remove my clothes and I refused but he threatened that if did not remove my clothes they will kill my children (At this juncture PW pointed out towards Abid and maintained that he intimidated me and asked me to remove clothes). Consequently I removed my clothes and accused armed with pistol committed rape (PW pointed out towards accused Abid) with me and handed over his pistol to accused who was armed with Danda and he put pistol on the heads of my children, thereafter, the person armed with Danda (PW pointed towards accused Shafqat) committed rape with me whereas the first person took pistol from him and pointed out towards my children. Thereafter once again the first person committed rape with me. (PW pointed out towards Abid and maintained that he committed rape twice and pointed towards Shafqat and maintained that he committed rape one time. Meanwhile Dolphin police and my relatives who came there and I disclosed all these facts to the police officials of dolphin and requested the police that her matrimonial life and lives of her children are in danger so my identity will not disclose and accordingly he concealed my identity....”

(Underline has been supplied for emphasis) It is quite understandable that, upon encountering and noticing a young woman accompanied by her minor children, the appellants allegedly compelled her to step out of the vehicle. She refused to oblige, resisted, the window pane on the driver's side was reportedly smashed by the appellants, following which she and her children were forcibly dragged out and taken towards the jungle. The entire episode from the breaking of the vehicle's window, the forcible removal of the victim and her children, and their subsequent transportation to another location would naturally have consumed sufficient time and provided ample opportunity for the victim to closely observe the perpetrators. Furthermore, according to the prosecution case, the victim remained in the company of the appellants for a considerable period and was subjected to sexual assault. Definitely at the time of forcible sexual intercourse, her face was towards appellants. During such prolonged interaction, including the commission of the alleged offence,

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it is only natural to infer that the victim had adequate opportunity to see and observe the facial features, appearance and identity of the assailants. Therefore, it would be consistent with ordinary human conduct and prudent reasoning to conclude that the victim was in a position to identify the persons involved in the obnoxious occurrence. No cross examination on the point that vehicle had not run out of fuel on that particular venue of crime. When the mechanic and other PW came in witness box, the learned defender used weapon of cross examination regarding the fault and other aspect of the vehicle. The same carries little importance as when the victim stated in the witness box that her vehicle ran out of fuel on motorway, not even a single question was put to her by either of the learned defenders while defending both the appellants separately.

10.As in the preceding lines, it is observed, while producing substantive evidence against the accused, the victim in a very confident manner raised her finger of accusation specifically towards both the appellants individually and correctly. Per Section 375-A PPC, gang rape, where a person is raped by one or more persons, when she testified that both the accused had committed rape with her turn by turn, the ingredient to constitute that offence has been completed, whereas she deposed that Abid appellant, committed rape with her twice (repeated the offence of rape), after the commission of that offence by Shafqat. The victim was raped on 09.09.2020 whereas she appeared in the witness box on 11.03.2021, after around six months, but her testimony reflects that she had given the microscopic picture of horrible sexual act happened with her. The concept of memory is extensively dealt/discussed in subject of psychology, the study of mind, the science of human behaviour and cognition postulates that several factors influence the process of memorization, foremost among them being the nature and emotional significance of the event or material to be remembered. Psychological principles suggest that experiences which profoundly affect an individual become deeply embedded in memory and are retained for a considerable period. "It is an old adage, loss of wealth is no real loss, loss of health is a partial loss, but loss of honour is a loss beyond measure." In the legal parlance, the under-discussion offence is considered/termed as sexual act whereas interpreted and considered in the

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society, the honour involving offence. No doubt the said subject also provides ordinary or insignificant events tend to fade with the passage of time. At the cost of repetition, in the present case, the victim was raped despite her resistance; she had concealed her identity only to preserve her as well as her family’s honour in the society and to avoid the permanent disgrace in future. The abhorrent, traumatic and detestable ordeal to which she was subjected was of such a grave and disturbing nature that it would naturally leave an indelible imprint upon her mind. It is, therefore, difficult to conceive that she could forget or misremember the minute details of an incident that had so deeply affected her emotionally and psychologically.

11.The prosecution also succeeded in proving the identification parades conducted under the supervision of the learned Magistrate (PW-21), wherein the victim correctly identified both appellants from among the dummies. Despite extensive cross-examination, the defence failed to point out any material irregularity capable of undermining the evidentiary worth of the proceedings. The objections regarding slight variation in the ages disclosed by the victim, delay in holding the identification parade, and non- sealing of certain proceedings are of no legal consequence. Minor discrepancies in estimated age are natural and do not detract from a reliable identification, particularly in the absence of any suggestion of mala fide, substitution or ulterior motive. Likewise, mere delay in holding an identification parade does not render it unreliable, especially when the identification itself remains unchallenged. Significantly, no evidence has been brought on record suggesting collusion, tutoring or any reason for the victim to falsely identify the appellants. Consequently, the identification evidence, viewed in conjunction with the trustworthy ocular account of the victim, further strengthens and corroborates the prosecution case. It is also noteworthy that, upon completion of the identification proceedings, both appellants were afforded an opportunity by the learned Magistrate to raise any objection, if they so desired, regarding the manner in which the Test Identification Parade had been conducted or the identification made by the victim. However, neither appellants raised any objection. Rather, both appellants stated before the learned Magistrate that they were ashamed of their conduct and expressly acknowledged that the victim had correctly

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identified them during the identification parade. Such conduct also lends further assurance to the reliability and evidentiary value of the victim's identification.

12.The legal framework in Pakistan provides robust protection for the identity of a prosecutrix (victim of sexual offenses) and mandates specific procedures for recording her testimony to ensure privacy, dignity, and safety. Under the Anti-Rape (Investigation and Trial) Act, 2021, and subsequent judicial interpretations, the law strictly prohibits the disclosure of her identity and provides for "special measures" such as in-camera trials, the use of screens, and video-link testimony. The testimony of a prosecutrix is protected through mandatory in-camera trials where the public and unauthorized persons are excluded. Courts are legally required to employ special measures, including the use of physical screens or video links, to ensure the prosecutrix does not have to face the accused directly. Furthermore, Section 26 of the Anti-Rape (Investigation and Trial) Act, 2021, explicitly prohibits the disclosure of the victim's identity in any form without prior written permission, and judicial guidelines mandate the use of acronyms in judgments to maintain anonymity. The learned trial Courts ought not to permit questions during the cross-examination of a victim that relate to her lineage, family connections, permanent residence, or any other particulars capable of revealing her identity, familial background, or territorial affiliation. Allowing such inquiries may undermine the statutory safeguards designed to protect the privacy, dignity, and anonymity of victims. It is a settled principle of law that what cannot be done directly cannot be accomplished indirectly. Therefore, information which is legally protected from disclosure cannot be elicited through indirect or circuitous questioning under the guise of cross-examination.

13.The defence has failed to assign any plausible motive for the victim to falsely implicate the appellants in a case of such grave nature. No evidence of prior enmity, ill-will or ulterior motive has been brought on record which could have prompted the victim to substitute the real culprits with innocent persons. It is also a matter of common experience that a woman would not ordinarily expose herself and her family to the ordeal of

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criminal proceedings, social stigma and rigorous cross-examination by levelling a false allegation of rape. In the absence of any convincing material indicating false implication, the victim's testimony inspires confidence and further strengthens the prosecution case.

14.As regards the contention of the learned counsel for the appellants that the children accompanying the victim were not produced as witnesses, it is sufficient to observe that an application under Section 540 Cr.P.C. for summoning the three children was moved during the trial proceedings. In pursuance thereof, the children appeared before the learned trial Court at the time of recording the testimony of their mother. The learned trial Court, before permitting them to testify, undertook an inquiry to ascertain their competency as required by Article 3 of Qanun-e-Shahadat Order 1984. It was observed that two of the children were of extremely tender age, while the eldest boy was only about five years old. During the inquiry, the children were unable to furnish rational and satisfactory answers to the questions put to them, whereupon the learned trial Court rightly concluded that they lacked the requisite understanding to depose as witnesses and declared them incompetent to testify. The order passed by the learned trial Court on this score remained unchallenged. In these circumstances, the non-examination of the children cannot be attributed to any lapse on the part of the prosecution, nor can any adverse inference be drawn therefrom. Consequently, the contention advanced by the learned defence counsel is devoid of substance and carries no legal force.

15.The prosecution also brought on record compelling circumstantial evidence through Abbas Ali/C (PW-5), Khalid Masood (PW-

31)and Sardar Shahzad (PW-35). Although none of them witnessed the actual occurrence, they reached the scene immediately thereafter, and the victim promptly narrated the incident to PW-5 and PW-35, leading to the registration of FIR Ex.PA. Khalid Masood (PW-31), while passing through the area during the relevant time, informed Rescue 15 about the occurrence; his call was duly recorded and produced in evidence through CD (P4) along with its transcript (P5). Furthermore, Muhammad Athar (PW-6), a motorway mechanic, confirmed that he reached the spot and refueled the victim's

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vehicle, which had stopped due to insufficient fuel. The testimonies of PW-6 and PW-31 lend substantial corroboration to the victim's account regarding the location of the occurrence and the circumstances in which her vehicle became stranded. This evidence is further reinforced by the victim's call detail record, placing her at ‘Croll Ghati, Ring Road’, Lahore, and by CD (P2), which pinpoints the location near one Kilometer of the Lahore-Sialkot Motorway. Collectively, these independent circumstances firmly establish the place of occurrence and the presence of the victim there at the relevant time.

16.The victim, Mst. Sana, was medically examined by Dr. Saba Iqbal, who noted multiple abrasions on the lateral aspect of the left thigh and bruises on the postero-dorsolateral surface of the right arm which further supports her resistance at the venue of crime. The doctor opined that the injuries had been caused by a blunt object within the preceding twenty-four hours and further concluded that the victim had been subjected to a sexual assault. Both appellants, Shafqat Ali and Abid Ali, were medically examined by Dr. Abdullah Fazal (PW-2) and Dr. Muhammad Awais (PW-11), who found them physically capable of performing a sexual act. Significantly, Dr. Muhammad Awais also observed a healed abrasion measuring 0.4 x 0.3 cm on the left elbow joint of appellant Abid Ali. This medical evidence not only substantiates the allegation of rape but also lends support to the prosecution case regarding the presence of blood stains on the victim's vehicle. Thus, the medical evidence provides strong corroboration to the ocular and forensic accounts of the prosecution.

17.Scientific evidence is one of the most dependable tools for the discovery of truth, as it is founded upon objective analysis rather than fallible human perception. In the present case, the prosecution has brought on record compelling forensic evidence which independently and powerfully corroborates the ocular account. Immediately after the occurrence, the victim was shifted to Kot Khawaja Saeed Hospital, where Dr. Saba Iqbal (PW-24) conducted her medico-legal examination and secured vaginal swabs along with the clothes worn by her. These articles were duly sealed, handed over to the police, and taken into possession vide recovery memo Ex.PZ. The

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vaginal swabs were thereafter transmitted to the Punjab Forensic Science Agency through Riaz Ahmad (PW-17), while buccal swabs of accused Shafqat Ali @ Bagga, accused Abid Ali, and the victim were also obtained for DNA profiling. Simultaneously, the Crime Scene Unit of the Punjab Forensic Science Agency, headed by Rizwan Khan (PW-7), secured the crime scene, photographed the victim’s vehicle, and collected blood swabs from its exterior door. The prosecution successfully established an unbroken chain of safe custody of all biological exhibits from the time of their collection until their forensic examination through the testimonies of the relevant officials and experts, including the forensic scientists themselves. According to forensic reports, the sperm fractions isolated from the victim’s shalwar, kameez and vaginal swabs matched the DNA profiles of accused Shafqat Ali and Abid Ali. Furthermore, as per report Ex.PV/1-3, duly proved by Qazi Laeeque, Forensic Scientist (PW-23), the DNA profile generated from the blood swabs collected from the victim’s vehicle matched the DNA profile of accused Abid Ali already available with the Punjab Forensic Science Agency in connection with an earlier criminal case. Thus, the chain of incriminating circumstances commencing from the collection of biological material from the victim and the crime scene and culminating in a positive DNA match with the accused stands firmly established. This scientific evidence constitutes strong, independent and highly incriminating corroboration of the prosecution case. The objections raised by the learned counsel for the appellants are merely peripheral and incapable of undermining the evidentiary worth of these forensic findings. Chief Justice Fletcher Moulton once observed that “proof does not mean rigid mathematical” formula since “that is impossible”. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion2. Even as per Article 2(4) of Qanun-e-Shahadat Order 1984, “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” Tested on this touchstone, the forensic Masheer Khan alias Badshah Khan and another versus State of Madhya Pardesh (2011 PSC (Crl.) 334) [Supreme Court of India]

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evidence produced by the prosecution leaves little room for doubt and furnishes formidable corroboration connecting the appellants with the commission of the offence.

18.The contention advanced by the learned counsel for the appellants that the DNA report was first communicated to the Superintendent of Police rather than directly to the Investigating Officer is of little consequence and does not create any dent in the prosecution case. Once the forensic examination had been completed and the report prepared by the competent scientific authority, the subsequent mode or channel through which the result was communicated within the police hierarchy does not affect either the authenticity or the evidentiary value of the report. The defence has neither alleged nor established any tampering with the samples, manipulation of the report, or prejudice occasioned by such communication. At the highest, the objection pertains to an administrative or procedural matter and does not undermine the scientific findings themselves. Therefore, the mere fact that the DNA report was initially conveyed to a senior police officer before reaching the Investigating Officer does not diminish its probative worth or impair its admissibility and reliability.

19.The recovery of Danda (P-10) and pistol (P-11) was effected at the instance of appellants Shafqat Ali @ Bagga and Abid Ali, respectively. Both recoveries were made pursuant to the disclosures made by the appellants and upon their pointation, thereby rendering the recovered articles admissible in evidence under Article 40 of the Qanun-e-Shahadat Order, 1984. The mere non-association of private witnesses does not diminish the evidentiary value of these recoveries, as it is a matter of common experience that members of the public are generally reluctant to involve themselves in criminal investigations and court proceedings. Although the recoveries are not by themselves sufficient to establish guilt, they furnish an additional incriminating circumstance corroborating the prosecution version regarding the weapons used during the occurrence.

20.The contention of the learned counsel for the appellants that Section 365-A, PPC is inapplicable and does not confer jurisdiction upon the

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Anti-Terrorism Court is devoid of merit. The prosecution evidence unequivocally establishes that the victim and her three minor children were forcibly removed from their vehicle and taken into a jungle against their will, thereby curtailing their liberty. The kidnapping of three minor children coupled with the threat to kill them unless the victim complied with the appellants' demand unmistakably attracts the mischief contemplated by Section 365-A, PPC. Furthermore, it has been settled that an offence under Section 365-A, PPC is included in Entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 and is triable by Anti-Terrorism Court. Consequently, the objection regarding the applicability of Section 365-A, PPC and the jurisdiction of the trial Court is without substance and merits outright rejection.

21.The appellants, in their statements recorded under Section 342 Cr.P.C., denied the allegations levelled against them and claimed complete innocence, asserting that the prosecution witnesses had falsely implicated them in the case. Significantly, none of the appellants opted to appear in the witness box under Section 340(2) Cr.P.C. to rebut the overwhelming prosecution evidence available on the record. It is a settled principle of law that where the prosecution succeeds in establishing its case through trustworthy ocular, medical, and scientific evidence, a simple denial by the accused, unsupported by any independent evidence, carries little weight and cannot dislodge the prosecution case.

22.The last question pertains to the quantum of sentence. While determining an appropriate punishment, the Court is required to consider not only the aggravating and mitigating circumstances of the case but also the broader objectives of criminal justice i.e. deterrence, denunciation of criminal conduct, protection of society, and vindication of the rights of victims. In the present case, the prosecution has successfully established through reliable ocular, medical, forensic and circumstantial evidence that the appellants forcibly abducted the victim along with her minor children from a stranded vehicle during the dead of night, threatened her with the murder of her children, and thereafter subjected her to gang rape in a secluded jungle. The offence was not only brutal and inhuman, but was

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executed in a manner that generated fear, insecurity and alarm within society. The appellants exhibited complete disregard for human dignity, bodily autonomy and the sanctity of womanhood. Such conduct constitutes an aggravated form of sexual violence and falls amongst those offences which shock the judicial conscience. The societal repercussions of crimes of this nature extend far beyond the individual victim; they create a pervasive sense of vulnerability amongst women and their families and erode the public's confidence in their safety while travelling on motorway, roads and highways. In these circumstances, any undue leniency would amount to misplaced sympathy, diminish the deterrent effect of the law, and undermine public confidence in the administration of justice. We are, therefore, of the considered view that the sentence awarded by the learned trial Court is fully commensurate with the gravity, enormity and far-reaching consequences of the offence and warrants no reduction or interference. The appellants do not deserve any concession in the matter of sentence.

23.For the foregoing reasons, Crl. Appeal No.20513/2021 & Crl. Appeal No.20738/2021 filed by the appellants are dismissed. Resultantly, convictions and sentences passed by learned trial Court by virtue of impugned judgment are maintained and upheld.

24.Capital Sentence Reference No.03-T/2021 forwarded by the trial court in terms of Section 374 Cr.P.C., for confirmation of the death sentence awarded to the convicts is answered in the affirmative. The death sentences of the appellants are confirmed.

25.With respect to Criminal Appeal No. 26164/2021 filed by the State, seeking modification to the extent of punishment awarded under Section 365-A PPC from imprisonment of life to death penalty is concerned, although the offence committed by the appellants is undoubtedly grave and reprehensible yet the question of sentence is to be determined in light of the peculiar facts and circumstances of each case. The learned trial Court, after due consideration of the relevant factors, awarded the sentence of imprisonment for life under Section 365-A, PPC. We do not find any exceptional or compelling circumstance warranting interference with the exercise of discretion so made or justifying enhancement of the sentence to

Crl. Appeal No.20738/2021 Crl. Appeal No.26164/2021 Capital Sentence Reference No.03-T/2021 death. Consequently, the appeal filed by the State, being devoid of merit, is dismissed.

(SYED SHAHBAZ ALI RIZVI) (TARIQ MAHMOOD BAJWA)

JUDGE JUDGE

Approved for reporting

JUDGE JUDGE

Habib Ullah