PLJ 2022 Cr.C. 883 (DB)
[
Present:
Raja Shahid Mehmood Abbasi and Ch. Abdul
Aziz, JJ.
IFTIKHAR
ALI--Appellant
versus
STATE--Respondent
Crl. A.
No. 343 & C.S.R. No. 5 of 2019, heard on 1.2.2022.
----Ss.
376/506--Rape with minor--Medical evidence--DNA report--Death
sentence--confirmation of--Appellant stooped down to the ebb of immorality and
resorted to incest sex and thereby sexually ravished two little girls, Who were
none other than his nieces--Complainant PW-2 who was mother of both the victims
and a singer by profession, had kept her brother/appellant in the house for
taking care of both the little girls in her absence--PW-2 approached police for
reporting the crime through written application after two days of the incident
but such delay in properly explained during trial--The intensity of sufferings
of victims/PW-3 & PW-4 can well be gauged from the fact that they lost
their virginity due to the satanic conduct of their own maternal uncle at the
age of 12 & 8 years, respectively--The girls who though were minors but
while appearing in the Court stood firm like an oak tree and narrated the
detail of their miseries and went on to depose about vaginal penetration--The
medical officer observed slight redness of vagina, anus and opined about hymen
as ruptured--The case of other victim PW-3 is no different and according to
doctor her hymen was not intact rather ruptured, old torn and found vagina
loose due to multiple attempts--Perusal of DNA report unfolds that from the
trouser and shirt of victim, the semen stains were detected which matched with
the DNA profile of the appellant--The sentence of death awarded to the appellant
call for no indulgence from this Court and Capital Sentence reference is
answered in the Affirmative, thereby death sentence awarded to convict is
confirmed.
[Pp.
888, 889, 890 & 893] A, B, C, D, E, F, G & L
2020 SCMR 590 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 3--Child witness--There is no inbuilt mechanism
provided in Article 3 to adjudge the competency of a witness to testify even
before administering him oath--In Article 3 the expression “unless the Court
considers” is used rather than “unless the Court is satisfied”--True import and
interpretation which can be given to Article 3 is to the effect that even while
recording evidence of a child, the Court can consider his ability to grasp the
question and to respond it through logical answers--A distinction is to be
drawn between a child witness and a child victim--A child who witnessed a crime
committed against some other person, his power to observe the incident and
ability to transform it in deposition calls for a vigilant judicial
observance--A child who himself fell victim to a crime more so of sexual
assault and successfully narrates his sufferings, besides competently standing
the test of cross-examination by responding rationally to the questions put to
him, his deposition is generally to be accepted. [P. 891] H, I & J
PLD 2020 SC 146; 1995 SCMR 1615; 2009 SCMR 1428; 2014 YLR 306;
2015 YLR 17 ref.
----S. 376--Sexual violence--For ascertaining the truth behind
cases of sexual violence are concerned, some of these can be summed up as
under:-
a. “Marks of
violence on the genitals;
b. Marks of violence
on the person of the victim as well as the accused;
c. The presence of
semen or bloodstains on the clothes of the victim or accused; and
d. The presence of seminal material around
the vagina”.
[P.
893] K
Mr. Muhammad Ilyas Siddiqui, Advocate for Appellant.
Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General for
State.
Date of hearing: 1.2.2022
Judgment
Ch. Abdul Aziz, J.--Iftikhar
Ali (appellant) involved in case FIR No. 227/2018 dated 23.04.2018 registered
under Sections 376 & 506, PPC at Police Station Rawat Rawalpindi, was tried
by learned Additional Sessions Judge,
“(i).Under
Section 376, PPC to suffer death sentence as Ta’zir for committing
zina-bil-jabr with Meena Fizza. He was also directed to pay fine of Rs. 300,000/-and
in default whereof to further undergo SI for six months.
(ii).Under
Section 376, PPC to suffer death sentence as Ta’zir for committing
zina-bil-jabr with Sara Fizza. He was also directed to pay fine of Rs. 300,000/-and
in default whereof to further undergo SI for six months.
(iii).Under Section
506, PPC to suffer rigorous imprisonment for two years with fine of Rs.
100,000/-and in default whereof to further undergo RI for 3-months.”
Challenging his conviction and
sentence, Iftikhar Ali (appellant) filed Criminal Appeal No. 343 of 2019,
whereas trial Court sent reference under Section 374, Cr.P.C. which was
numbered as Capital Sentence Reference No. 5 of 2019 for the
confirmation or otherwise of death sentence awarded to him. Both these matters
are being disposed of through this single judgment.
2. Succinctly stated the facts of the prosecution case as
disclosed by Nazia Iqbal (PW.2) in FIR (Exh.PG) are to the effect that she is
resident of Bahria Phase-VI, Rawalpindi and got married with Javed Fizza about 13-years
prior to the registration of FIR; that out of the said wedlock, four sons &
two daughters, namely Meena & Sara were born; that Meena & Sara usually
made complaints against their maternal uncle Iftikhar Ali (appellant) for
committing “ziadti” with them but she did not believe in such complaints; that
on 21.04.2018 at about 8:00 a.m., she woke up for preparation of breakfast and
after hearing weeping of her daughter Sara went to her room and saw that Sara
was undressed, whereas Iftikhar Ali (appellant) was without wearing trouser
(Shalwar) and was committing sex with her daughter; that upon the noise of the
complainant, her husband Javed and daughter Meena also came there, whereupon
Iftikhar Ali fled away from the spot; that Meena told the complainant that on
the previous night at about 11:00 p.m., she was also raped by Iftikhar Ali;
that she further disclosed that Iftikhar Ali used to show them clips about
slaughtering of minor kids and intimidated with dire consequences if his
misdeeds were reported to anyone.
3. The law was set into motion on the written application
(Exh.PA) presented by Nazia Iqbal (PW.2) before Syed Akbar Kiani SI (PW.7),
upon which formal FIR (Exh.PG) was chalked out. On 23.04.2018, he sent Rehana
Lady Constable with victims Meena and Sara for medical examination at RHC Bagga
Sheikha. Subsequent thereto, he visited the spot and prepared rough site plan
(Exh.PH). He recorded the statements of victims under Section 161, Cr.P.C. On
25.04.2018 he went to PFSA Lahore for submission of samples. He arrested
Iftikhar Ali (appellant) on 29.04.2018 and on the following day his medical
examination was got conducted. On 02.05.2018 Iftikhar Ali (appellant) along
with police officials, lady constable and victims were taken to PFSA Lahore for
DNA test as well as for polygraph test. He after complying with legal
formalities got prepared report under Section 173, Cr.P.C. through concerned
SHO.
4. The prosecution in order to prove its case against the
appellant produced 7-PWs, namely, Haroon Zafar 8372/HC (PW.1) who
was performing his duties as Moharrar/Station clerk at the relevant time, Nazia
Iqbal (PW.2), who is complainant of the FIR, Meena Fizza (PW.3)
& Sara Fizza (PW.4) who are victims of the case, Dr. Farzana
Murtaza (PW.5) who after conducting the medical examination of Sara
Fizza & Meena Fizza issued their MLRs (Exh.PB & Exh.PD); doctor also
deposed qua the positive report of DNA, Mst. Rehana Bibi 1204/LC (PW.6)
who escorted both the victims to RHC for their medical examination and Syed
Akbar Kiani SI (PW.7) who is investigating officer of the case.
5. After the conclusion of prosecution evidence, trial Court
examined Iftikhar Ali (appellant) under Section 342, Cr.P.C. who in response to
question “why this case has been registered against you and why the PWs deposed
against you” made the following reply:
“The allegations are
false. The fact of the matter is that the complainant is my real sister and our
father Iqbal was murdered in Peshawar and a case FIR No. 209 dated 06.03.2008 u/S.
302/109, PPC was registered at PS Faqeerabad, District Peshawar in which Javed
Fizza the husband of the complainant and father of Meena Fizza and Sara Fiza
was named in the FIR as an accused. At that time, I was minor and a compromise
in the said murder case of my father was effected and Javed Fizza husband of
the complainant and had paid the amount of Diyat to the legal heirs of Iqbal
deceased including me. About a month before the present alleged occurrence the
complainant called me to live in her house because prior to that Wajid Ali, son
of Javed Fizza from his first wife was living in the house of complainant who
left for
Appellant did not make statement under
Section 340 (2) of, Cr.P.C., however produced certain documentary evidence in
his defence. On the conclusion of trial, the appellant was convicted and
sentenced, as mentioned above, hence, the instant criminal appeal and capital
sentence reference.
6. It is contended by learned counsel for the appellant that
the case in hand is arising out of a crime report which was registered with
unexplained delay of two days; that during trial the victims and the eyewitness
of the case contradicted each other on material points, which rendered their
deposition unworthy of any credence; that one of the witnesses, namely Meena
Fizza was aged about 9-years but before her deposition learned trial Judge did
not put any question to adjudge her competency to testify; that the medical
evidence furnished during trial by Dr. Farzana Murtaza belied the prosecution
accusations and made the whole matter as doubtful; that no mark of violence or
scratch was noticed by the medical officer at the time of examination of
victims which negates the theory of crime advanced by prosecution; that from
the bare perusal of the prosecution evidence a reasonable doubt emerges, the
benefit of which ought to be extended to the appellant. With these submissions,
it was urged that the conviction awarded to the appellant is not sustainable in
the eye of law and as such he be acquitted from the case.
7. On the other hand, learned law officer came forward with the
submissions that though there is some delay in lodging the FIR, however it was
reasonably explained by the complainant during trial; that the minor girls who
were victims of rape not only appeared in the witness box during trial but also
held the appellant responsible for the commission of crime; that the statements
of victims were amply supplemented by the complainant of case, namely, Nazia
Iqbal; that the ocular account of the incident was fully supported by the
medical evidence, thus there is no reason to discard it; that the guilt of the
appellant is further proved from the positive DNA report and that since the
appellant has committed an offence of moral turpitude, hence deserves no
leniency.
8. Arguments heard. Record perused.
9.
The case has its roots in an incident wherein Iftikhar Ali (appellant) stooped
down to the ebb of immorality and resorted to incest sex and thereby sexually
ravished two little girls Meena Fizza and Sara Fizza (PW.3 & PW.4) who were
none other than his nieces. Complainant Nazia Iqbal (PW.2) who was mother of
both the victims and a singer by profession, had kept her brother Iftikhar Ali
(appellant) in the house for taking care of both the little girls in her
absence. On 21.04.2018, Nazia Iqbal (PW.2) rose up from the bed for an early
breakfast and saw Iftikhar Ali (appellant) in the thick of an incident wherein
he was busy in sex with Meena Fizza (PW.3). Though Nazia Iqbal (PW.2) approached
police for reporting the crime through written application (Exh.PA) after two
days of the incident on 23.04.2018 but such delay is properly explained during
trial, thus cannot be used to the detriment of prosecution. According to the
explanation, Nazia Iqbal was flabbergasted to see the event and since
perpetrator was her real brother, thus she approached mother who further
advised to maintain silence for the time being. Since the mother of the
complainant remained unmoved in next two days probably to save the skin of her
son, hence the application for registration of case was moved on 23.04.2018.
Even if the afore-mentioned explanation is discarded still we can understand
the reluctance of Nazia Iqbal (PW.2) to approach police as the unfortunate saga
was destined to have long lasting stigma on the future of her daughters. We are
also mindful of the fact that if at all the story of crime was nothing but a
jumble of lie knitted with some sinister design of settling personal grouse,
the complainant should have approached the police on the same day when she
conceived the design of getting a false case registered against the appellant.
To be precise, in the given circumstances we are satisfied that the
afore-mentioned delay of two days in reporting the crime to police sheds no
doubt upon the prosecution case. Even otherwise, the delay in reporting the
crime in rape cases becomes insignificant as families show reluctance to come
forward to promptly report the matter because of trauma the victims suffer and
due to shame or dishonour in having invasively examined by a doctor. Reliance
in this context can be placed upon the case reported as Zahid and another v.
The State (2020 SCMR 590) wherein the Hon’ble Supreme Court of Pakistan
while dealing with the matter of delay in reporting the crime in rape cases
held as under:
“Undoubtedly, the FIR
was registered after a day of the crime having been committed, however, the
fact that the modesty of a married woman was violated by sexual assault makes
understandable the apprehension of the victim and her family in approaching the
police immediately. Delay in reporting the crime to the police in respect of an
offence involving a person’s honour and reputation and which society may view
unsympathetically could prey on the minds of a victim and her family and deter
them to go to the police.”
10.
During trial, the tale of vicious sexual assault of Iftikhar Ali (appellant)
whereby he encroached upon the modesty of his own niece on 21.04.2018 at about
8:00 a.m. was brought on record by complainant Nazia Iqbal (PW.2) as well as
the victim Sara Fizza (PW.4). Indeed, on this date Sara Fizza (PW.4) &
Meena Fizza (PW.3) lifted veil from the atrocious act of Iftikhar Ali
(appellant) and complained to have fallen victim to his sexual lust on numerous
occasions in the past. The intensity of sufferings of Meena and Fizza (PW.3
& PW.4) can well be gauged from the fact that they lost their virginity due
to the satanic conduct of their own maternal uncle at the age of 12 & 8 years,
respectively. It is being reiterated that complainant Nazia Iqbal and both the
victims were related with Iftikhar Ali as sister and nieces respectively. In
the wake of absence of any hostility, it is noticed that Iftikhar Ali
(appellant) was having abode in the house of his sister Nazia Iqbal (PW.2)
since 2016 and was assigned the responsibility of taking care of both the
girls. On one hand it is noticed that Nazia Iqbal (PW.2) appeared in the
witness box with the claim of having seen the appellant on 21.04.2018 at about
8:00 a.m. committing rape of her daughter Sara Fizza (PW.4) and on other hand
such stance of the complainant was amply supported by both the victims through
their respective depositions before the trial Court. The girls who though were
minors but while appearing in the Court stood firm like an oak tree and
narrated the detail of their miseries and went on to depose about vaginal
penetration. As per record, the father of both the victims, namely Javaid Fizza
had a son Wajid Ali from his previous marriage and during trial an attempt was
made to hold him responsible for the allegation of rape but both the victims
vociferously discarded it. The victims Meena and Sara (PW.3 & PW.4) even
during trial budged not a single pace from their stance of having been sexually
mutilated by their paternal uncle. We have eloquently examined the evidence of
complainant Nazia Iqbal (PW.2) as well as of the two victims Meena Fizza and
Sara Fizza (PW.3 & PW.4) but have failed to come across any legal infirmity
about their veracity.
11.
The medical evidence in this case was furnished by Dr. Farzana Murtaza (PW.5)
who on 23.04.2018 examined the victim of rape. So far as Sara Fizza (PW.4) is
concerned, the medical officer observed slight redness of vagina, anus
and opined about hymen as ruptured. The case of other victim namely
Meena Fizza (PW.3) is no different and according to doctor her hymen was not
intact rather ruptured, old torn and found vagina loose due to multiple
attempts. From the symptoms so observed by Dr. Farzana Murtaza (PW.5) it
can inevitably be held that both the girls were subjected to rape and as a
necessary corollary we are leaned to conclude that their depositions ring true.
During medical examination of Meena Fizza and Sara Fizza (PW.3 & PW.4) vaginal
and anal swabs were taken which along with their clothes later were forwarded
to PFSA for DNA analysis. The in-depth perusal of DNA report (Exh.PK) unfolds
that from the trouser and shirt of Meena Fizza, the semen stains were detected
which matched with the DNA profile of the appellant. Though the internal and
external vaginal swabs were not found to have some semen stains but it is quite
natural as the appellant must have resorted to safe sex, realizing the
consequences of conceiving the pregnancy. The sexual mutilation of both the
girls is satisfactorily proved from their confidence inspiring depositions and
supporting medical evidence, according to which their hymens were found
ruptured.
12. We have also adverted to the arguments of learned defence
counsel whereby he submitted that since the age of Sara Fizza (PW.4) was about
9-years on the day when her statement was recorded, hence it was incumbently
required for the trial Court to record in writing satisfaction about the
competency of this witness to testify in terms of Article 3 of Qanun-e-Shahdat
Order, 1984 (hereinafter referred to as “QSO, 1984”). In order to better
appreciate the submission of learned counsel for the appellant, Article 3 of
QSO, 1984 is being reproduced hereunder:-
“Who may testify.--All
persons shall be competent to testify unless the Court considers
that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind”.
(emphasis provided)
It
manifests from Article 3 that as a general rule all persons are competent to
testify and exceptions are only those who according to the Court are prevented
from understanding the questions put to them or those who cannot rationally
respond to these questions on account of tender or extreme old age or due to
mental or physical ailment. There is no inbuilt mechanism provided in Article 3
to adjudge the competency of a witness to testify even before administering him
oath. As a rule of caution a witness of tender or extreme old age is subjected
to queries by the trial Court before recording his evidence so as to ascertain
his competency to understand the questions and ability to give their rational
replies. Such rule of caution can in no manner be taken as a statutory embargo
so as to oust from consideration the deposition of a child witness if he/she is
not subjected to questions in this regard before administering him/her oath.
While holding so, we have in our minds that in Article 3 the expression “unless
the Court considers” is used rather than “unless the Court is satisfied”.
Had the Legislature used the words “satisfaction of Court” it would have
followed therefrom that before administering oath to a child witness, the Court
must record in writing its satisfaction about his competency to testify. The
legislative intent of Article 3 of QSO, 1984 unambiguously insinuates from the
expression “unless the Court considers” and needs no further
elaboration. In our view, true import and interpretation which can be given to
Article 3 is to the effect that even while recording evidence of a child, the Court
can consider his ability to grasp the questions and to respond it through
logical answers. We are compelled to observe here that while adjudging the
competency to testify in terms of Article 3 of QSO, 1984, a distinction is to
be drawn between a child witness and a child victim. So far as, a child who
witnessed a crime committed against some other person, his power to observe the
incident and ability to transform it in deposition calls for a vigilant
judicial observance. Such child witness can on occasions be influenced through
tutoring for narrating a false account of the incident, thus his evidence is to
be subjected to a strict scrutiny of appraisal. On the other hand, a child who
himself fell victim to a crime more so of sexual assault and successfully
narrates his sufferings, besides competently standing the test of
cross-examination by responding rationally to the questions put to him, his
deposition is generally to be accepted. We are not oblivious of the fact that
unfortunately in the recent past, our society has suffered nosedive moral
decline and even kids of 3/4 years of age have become vulnerable to sexual
assaults, obviously on account of extreme tender age they are unable to depose
in the Court. Even in such cases conviction can be awarded to the perpetrators
on the basis of other incriminating circumstances including the medical data,
DNA report and evidence of some eyewitness. While holding so, we borrowed the
wisdom of
“In
the present case, it is noted that the trial Court blatantly erred in
completely discarding the oral testimony of Tayyaba Bibi, despite the support
and corroboration it had from other evidence, including the medical evidence,
and the testimony of four independent natural witnesses, the veracity whereof
could not be shattered by the defence, despite their lengthy
cross-examinations. We also find that the trial Court failed to appreciate the
distinction between a child witness, who is a witness of the crime, with one
who is herself a victim to the crime. This lack of distinction led to the trial
Court to wrongly apply the principle of appreciating evidence of an ordinary
witness of a crime, and not applying the standard of proof required for
appreciating the testimony of a child witness, who is herself a victim of the
said crime. Even otherwise, this Court found that the prosecution had produced
sufficient evidence against the accused-convicts to safely discharge its “legal”
burden to prove the guilt of the accused, which was not rebutted by the
accused-convicts by producing any evidence creating any doubt in the
prosecution’s case”.
We have further scrutinized the
testimony of Sara Fizza (PW.4) and noticed that she not only narrated the
ordeal of her sexual sufferings without any ambiguity but she also responded to
the cross-examination with coherent answers. It can safely be gathered from the
deposition of Sara Fizza (PW.4) as well as from para No. 17 of the trial Court
judgment that she was in no manner handicapped to appear as a witness so as to
be adjudged as incompetent to testify in terms of Article 3 of QSO, 1984. In
the absence of any legal disability of Sara Fizza in terms of Article 3, we are
leaned in favour of holding that her deposition was admissible and can be based
for upholding the conviction. Reliance in this context can be placed upon the
case reported as Muhammad Ismail and another v. The State (1995 SCMR
1615) wherein the Hon’ble Supreme Court of Pakistan held as under:
“It may further be
observed that evidence of child witness possessing sufficient understanding can
be believed and relied upon for conviction. See 1968 SCMR 852. This authority
was relied upon by the High Court. Besides the High Court relied upon cases
reported in 1969 SCMR 79 and 1971 SCMR 273, wherein this Court has held that
conviction can be based on evidence of a solitary witness.”
On the same subject, reference may also
be made to the cases reported as Mst. Razia alias Jia v. The State (2009
SCMR 1428), The State v. Muhammad Boota (2014 YLR 306) and Mst. Imam
Sain and others v. The State (2015 YLR 17).
13.
We are constrained to observe here that act of incest rape, more so against a
child, is bereft of all human and moral norms. The Courts must have a pragmatic
approach to decide the fate of such like cases and besides evaluating the
deposition of a victim, must have resort to other sources for reaching a just
decision. So far as the other sources for ascertaining the truth behind cases
of sexual violence are concerned, some of these can be summed up as under:-
“(a) Marks of violence
on the genitals;
(b) Marks of violence on the person of the
victim as well as the accused;
(c) The presence of
semen or bloodstains on the clothes of the victim or accused; and
(d) The presence of
seminal material around the vagina.”
In the instant case, we anxiously
noticed that during medical examination Dr. Farzana Murtaza (PW.5) observed old
ruptured hymen and loose vagina of both the victims. The doctor further
observed abrasion on the thigh and redness on the vagina as well as around anus
of Sara Fizza (PW.4). Similarly, the clothes of the victims Meena and Sara were
found to have semen stains which matched with the DNA of appellant as is
evident from PFSA report (Exh.PK). Besides the oral account of the miseries
Meena and Sara suffered, the medical evidence and DNA report are supporting the
indictment against appellant. Without any scintilla of exaggeration, it can be
concluded that the guilt of appellant was well established from the
