KARACHI: The Sindh High Court has set aside the death sentence handed down to a man in a case pertaining to the rape of an 11-year-old girl.

A two-judge bench headed by Justice Mohammad Karim Khan Agha observed that the evidence of the victim was doubtful and the DNA report did not link the appellant with rape.

The SHC further said that it was a very heinous offence as a minor girl had been assaulted, but as judges they had to put such aspects aside and decide the matter by dispassionately assessing the evidence on record.

An additional district and sessions court had sentenced the man to death in January last year for raping the 11-year-old girl at his house in Manghopir in February 2018.

The convict through his lawyer challenged the trial court order before the SHC and after hearing both sides and examining the record and proceedings of the case, the bench allowed the appeal and exonerated the appellant by overturning the capital punishment.

The bench in its judgement said that the case was registered by the victim’s father after a delay of eight days and although he attempted to explain it, no witness was produced to corroborate his version.

It noted that if the evidence of the victim was found to be reliable and trustworthy about the place of incident and who had assaulted her, the court could convict on the basis of her evidence coupled with medical evidence alone even without matching the DNA, but her testimony was found doubtful on such points.

The order further stated that as per the evidence of the girl, at the time of incident she and her sister were studying together with the daughter of the appellant at his house.

It further said the victim in her testimony before the trial court further deposed that the study was completed around midnight at the courtyard of the house and the victim’s mother and appellant’s wife had tea. She said while his daughter and victim’s sister were cleaning the courtyard and kitchen, the appellant dragged her in a dark place and attempted to rape her and in the meanwhile her sister and daughter of the appellant came and saved her.

The court order said that the victim was raped according to the medical report, but the chemical and DNA samples were sent after a delay of three days without any explanation and there was no evidence of safe custody during this period.

The women medico-legal officer, who examined the victim and found her sexually assaulted, in her evidence said: “As per history of the girl, some unknown person entered her home and assaulted her,” it said and added that the MLO had no enmity or ill-will to give false evidence against the victim.

The bench further noted that as per the evidence of the victim, her sister was also a key witness, but she was not called at the trial court to give her statement without any explanation.

It said that at time of the incident, there were 10 to 12 persons present in the two-room house with a courtyard, and it did not appeal to logic that appellant would attempt to rape her in the presence of so many people.

The bench observed that the victim had a motive to falsely implicate the appellant at the behest of her father as the appellant in his statement before the trial court said that there was a property dispute between him and the complainant, but this aspect was not investigated by the police.

“For the reasons discussed above we find doubt in the prosecution case and by extending the benefit of the doubt to the appellant he is acquitted of the charge, the impugned judgment is set aside, his appeal is allowed and the appellant shall be released unless wanted in any other custody case,” the verdict concluded.

Published in Dawn, September 1st, 2022

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