2021 Y L R 1291
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
TAYYAB RAZA---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 47 and Murder Reference No. 6 of 2018, decided on 19th October,
2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 375, 376, 377, 294 & 506--- Sexual offences, rape, sodomy, obscene acts and songs,
criminal intimidation ---Appreciation of evidence ---Sentence, reduction in ---Accused was
charged for sexually abusing the daughter of complainant and taking snaps and recording
videos ---In the present case, statements of prosecution witnesses established the fact that the
accused had been sexually assaulting the minor girls of the Mohallah--- All the witnesses had
brought on record that soon after getting information, the accused was arrested and after
watching the snaps and videos they were shocked that the accused was sexually assaulting the minor girls ---Confession of accused was recorded before Judicial Magistrate ---Court
statements of witnesses were fully in line with the confessional statements under S.164, Cr.P.C. as well as their statements recorded by the Investigating Officer under S.161, Cr.P.C. ---Defence had failed to point out any minor contradiction or dishonest improvement
in all the stateme nts of witnesses ---Even otherwise, a minor child could be defamed for
whole life, no father or elder brother would involve an innocent person in the false case ---No
suggestion was put forth to the effect that the complainant or the victim had any animosity or
ill will against the accused ---Defence had failed to bring on record any ill -will or ulterior
motives on the part of witnesses for false implication of the accused--- Record showed that
though number of victims were named, who were sexually assaulted, b ut the prosecution had
failed to produce all the victims ---One major victim was not produced by the prosecution,
though her Court statement was available on record---Victims had also kept mum till the arrest of the accused, thus, in such circumstances, awarding of capital punishment to the accused was unwarranted ---Sentence of death of accused was, therefore, converted into
imprisonment for life ---Appeal against conviction was dismissed with said modification in
sentence, in circumstances.
(b) Penal Code ( XLV of 1860) ---
----Ss. 375, 376, 377, 294 & 506--- Sexual offences, rape, sodomy, obscene acts and songs,
criminal intimidation ---Appreciation of evidence ---Sentence, reduction in---Statements of
victims ---Scope ---Accused was charged for sexually abusing t he daughter of complainant
and taking snaps and recording videos ---Prosecution case had been strengthened by the
statements of two minor victims ---Statements of both the said victims were fully
corroborating each other on all material counts ---Despite leng thy cross -examination, the
defence had failed to give dent or damage to their testimonies ---Undisputedly, the victims of
the offence were minors less than the age of 10- years and a school going girls, who did not
carry any ill will, grudge or malice agains t the accused to falsely implicate him in the case ---
Evidence of both the victims had been fully corroborated by the medical evidence as well as
the other circumstantial evidence including the expert report, who carried out the analysis of photos and videos ---Testimony of the victim could not be impeached or discredited though
subjected to test of cross -examination by the defence---Record showed that though number
of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims ---One major victim was not produced by the prosecution though her
Court statement was also available on record ---Victims had also kept mum till the arrest of
the accused ---Awarding of capital punishment to the accused was unwarranted, in
circumstances ---Sentence of death of accused was, therefore, converted into imprisonment
for life ---Appeal was dismissed with said modification in sentence, in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 376 ---Rape--- Sole statement of victim---Sco pe---In case of sodomy or zina the solitary
statement of victim would be sufficient to convict the accused if it was confidence- inspiring.
Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 375, 376, 377, 294 & 506--- Sexual offences, rape, sodomy, obscene acts and songs,
criminal intimidation ---Appreciation of evidence ---Sentence, reduction in---Medical
evidence---Scope ---Accused was charged for sexually abusing the daughter of complainant
and taking snaps and recording videos ---Record showed that the case of prosecution had also
been strengthened from the medical evidence produced through Lady Police Surgeon---Perusal of Medico- Legal Certificates had established the fact that the hymens of victims
were not intact and that the sexual act was performed with them ---Investigating Officer also
produced the accused before Medical Officer, who after examination issued Medico -Legal
Certificate, perusal of which also established the fact that the accused was po tent and was
able to perform the act of sexual intercourse ---Record showed that though number of victims
were named, who were sexually assaulted, but the prosecution had failed to produce all the victims ---A major victim was not produced by the prosecution, though her Court statement
was available on record ---Victims had also kept mum till the arrest of the accused ---
Awarding of capital punishment to the accused was unwarranted, in circumstances ---
Sentence of death was therefore, converted into imprisonment for life, in circumstances ---
Appeal was dismissed with said modification in sentence.
(e) Penal Code (XLV of 1860)---
----Ss. 375, 376, 377, 294 & 506--- Sexual offences, rape, sodomy, obscene acts and songs,
criminal intimidation ---Appreciation of evidence---Sentence, reduction in ---Recovery of
incriminating material--- Scope ---Accused was charged for sexually abusing the daughter of
complainant and taking snaps and recording videos ---Case of prosecution had also got
strength from the recoveries of smart p hone, computer C.P.U. and USB ---Raid was
conducted in the house of accused and during the course thereof smart phone was recovered
from personal possession of accused, while the search of his house was resulted into
recovery of computer C.P.U. and USB ---Said articles were also produced in the Trial Court
and on the request of prosecution the memory card already recovered from the possession of
accused as well as his smart phone, USB and computer were played, perusal of which transpired that the accused had taken hundreds of porn snaps and a number of videos where
accused had been sexually abusing the minors by unnatural offence, fingering in virginal part and other such obnoxious acts ---Prosecution in order to establish the porn snaps and videos
recorded in the above articles sent the same for analysis and accordingly a witness produced the Digital Forensic Examination Report ---Said report further strengthened the case of
prosecution that the pornography was genuine, as the same was forensically examined, no frame insertion, editing, forgery, deletion was identified---Not only the memory card contained porn snaps and videos of minor girls but the computer, USB and mobile phone of the accused also contained such abusive porn snaps and videos of minor girls ---Record
showed that though number of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims ---One major victim was not produced by the
prosecution, though her Court statement was available on record---Victims had kept mum till the arrest of the accused ---Awarding of capital punishment to the accused was unwarranted,
in circumstances ---Sentence of death was therefore, converted into imprisonment for life, in
circumstances ---Appeal was dismissed with said modif ication in sentence.
Rafiullah Barech for Appellant.
Abdul Mateen, D.P.G. for the State.
Ms. Farzana Khilji for the Complainant.
Date of hearing: 5th October, 2020.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgement disposes of Criminal Appeal
No.47 of 2018 and Murder Reference No.06 of 2018.
The appeal has been filed by the appellant Tayyab Raza son of Tanveer Hussain,
against the judgement dated 31st October 2018 (hereinafter referred as, "the impugned judgement") passed by learned Add itional District Judge -VII Quetta (hereinafter referred as,
"the trial Court"), whereby the appellant was convicted under section 376, P.P.C. for committing the Rape of minor victim Hafza Afzal and was sentenced to death. He was directed to be hanged by hi s neck till he is dead with fine of Rs.50,000/ - or in default thereof
to further suffer Six (06) months S.I. The appellant was also convicted under section 377, P.P.C. for committing unnatural offence with minor Hafza Afzal and was sentenced to suffer
life imprisonment with fine of Rs.50,000/ - or in default thereof to further suffer six (06)
months S.I. He has also been convicted under section 376, P.P.C. for committing the Rape of
minor victim Urwa Batool and was sentenced to death. He was directed to be hanged by his neck till he is dead with fine of Rs.50,000/ - or in default thereof to further suffer Six (06)
months SI. The trial Court has further convicted the appellant under section 377, P.P.C.
(wrongly mentioned in impugned judgement as section 376, P. P.C.) for committing unnatural
offence with minor victim Urwa and was sentenced to suffer imprisonment for life, with fine
of Rs.50,000/ - or in default thereof to further suffer six (06) months S.I. Besides, the
appellant was also directed to pay compensat ion of Rs.100,000/ - to each victim Hafza Afzal
and Urwa Batool, as envisaged under section 544- A, Cr.P.C. and in default thereof to further
undergo S.I. for six months.
2. Facts of the prosecution case are that on 3rd July 2015, the complainant Muhammad
Afzal Nadeem son of Muhammad Inayat, lodged FIR No.19/2015 at Police Station Cant
Quetta under sections 294, 375, 376, 377, 506, P.P.C., with the averments that on the said date he was present in his house, when his neighbour Muhammad Shahid approached him and disclosed that the appellant Tayyab Raza a resident of their Mohallah had been sexually
abusing the little/minor girls. He had also shot snaps and recorded videos and in proof of
such allegations he provided a memory card to him. On opening of the same in his mobile he
watched accused had been sexually abusing his daughter namely Hafza Afzal (aged 5 -years),
he also found that he had been sexually abusing the little girls of Mohallah. Hence, after
consultation with the higher officers, the FIR was lodged.
3. After registration of FIR, the appellant was arrested, who was subjected to
investigation and on completion thereof, he was challaned before the trial Court, which
indicated the charge and after denial by the appellant, the prosecution produced ninetee n (19)
witnesses, whereafter he was examined under section 342, Cr.P.C. However, neither the appellant recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court
convicted and sentenced the appellant as mentioned above in para No.1, whereafter he has filed the instant criminal jail appeal through Superintendent Central Prison Mach, while the learned trial Court has referred the murder reference for confirmation of death sentence of
appellant or otherwise. This Court appointed Mr. Rafiullah Barech, Advocate, as counsel for pauper appellant.
4. Heard the learned counsel and perused the available record. In order to substantiate
the charge, the prosecu tion has produced the evidence of nineteen (19) witnesses. Initially,
the FIR was lodged on the complaint of PW -1 Muhammad Afzal, according to him on the
day of occurrence he was present in his house, when his neighbour PW -3 Muhammad Shahid
approached him and disclosed that the appellant Tayyab Raza a resident of their Mohallah had been sexually abusing the little/minor girls. He had also shot snaps and recorded videos, in proof of such allegation he provided a memory card to him. On opening of the same in his
mobile he shocked on watching that the appellant was sexually abusing his daughter namely Hafza Afzal (5 -years), he also found that he had been sexually abusing the little girls of
Mohallah. The statement of PW -1 was fully corroborated by PW -3 Muhammad Shahid.
According to this witness his minor niece aged 4- 1/2 years along with other minor girls used
to go for reciting para (Holy Quran) and they have to cross the house of appellant, while
prior to incident his niece disclosed that a person stands on their way and offer them toffees and persuading them to come their house for teaching his own daughter. On such disclosure of minor, on the day of occurrence his niece was onward while he (PW -3) was
pursuing/chasing her and he observed that when the minor re ached near the house of
appellant, he took out his wallet and was giving something to the minor, but in the meantime
the witness intervened, thus quarrel took place with the appellant and during the said course
a memory card fell down from him and the appe llant ran towards his house, however, he took
the memory card and inserted it in his mobile phone and was shocked on seeing the snaps and videos of his niece and other minor girls including the daughter of complainant, thus he approached the complainant an d handed over him the memory card.
PW-2 Bashir Ahmed also corroborated the statement of PW -1 and PW -3 and brought
on record that he was called by PW -1 and shown him the snaps and besides the snaps of
other minor girls, he also found that his daughter Urwa Batool aged 7 years was also one of
the victims and besides the snaps of Abdul Qadir's daughter were also found. PW -4 Zahir
Khan has brought on record that his niece Mah Noor aged 6- years was also one of the
victims, whose snaps were also found in the sai d memory card. PW -6 Mudasir Manzoor has
brought on record that he has seen the snaps and videos of minor girls, whereby the appellant had sexually abusing the minors. Besides, he has also seen the snaps of his own family ladies, which were taken without their consent by the appellant in order to blackmail them. PW-7 Abdul Rasheed Gorsi is the father of minors Laiba Rasheed (12 years) and Essail
Rasheed (8 -years), whose snaps and videos were shoot by the appellant, wherein the
appellant was sexually assaulti ng his minor daughters. PW -9 Abbas Khan is the uncle of
Samra (7/8 years), who brought on record that his paternal cousin Inayat -ur-Rehman was
residing in Police Colony along with his family, but he died two years ago and after his death, his widow and chi ldren are still residing in the said Colony. However, after
registration of FIR against the appellant, he (PW -9) saw the snaps and videos, wherein the
appellant sexually assaulted the minor and captured her snaps and filmed videos.
5. The comparative study of statements of PW -1, PW -2, PW -3, PW -4, PW -6, PW -7 and
PW-9 establishes the fact that the appellant had been sexually assaulting the minor girls of
the Mohallah. All the witnesses have brought on record that soon after getting information, the appellant was arrested and after watching the snaps and videos they were shocked that the appellant was sexually assaulting the minor girls. It has also been observed that during investigation the I.O. got recorded the confessional statements of PW -1, PW -2, PW -3, PW -7
and PW -9 before PW -12 Inayatullah Barech, Judicial Magistrate, which were exhibited in the
Court as Ex.P/12- D to Ex.P/12 -L. The Court statements of said witnesses are fully in line
with the confessional statements under section 164, Cr.P.C. as well as t heir statements
recorded by the Investigating Officer under section 161, Cr.P.C. The defence has failed to point out any minor contradiction or dishonest improvement in all the three statements of witnesses. Even otherwise, where a minor child could be def amed for whole life, no father or
elder brother would involve an innocent person in the false case.
6. The case of prosecution has further been strengthened by the statements of minor
victims PW -18 Hafza Afzal and PW- 19 Urwa Batool. Both the witnesses have brought on
record that the appellant had owned two houses, out of which in one house his family
members were residing, while in the other house the appellant was residing alone, wherein he was sexually assaulting them, capture their snaps and videos and according to these witnesses the appellant had also threatened them that in case if they informed someone else, they will be murdered with knife. PW -18 has further brought on record that besides her, the
appellant had also sexually assaulted minors Uzma, Hi ra Kamal, Mariam Qadir, Hafza Afzal
and the other minor girls of Mohallah, while PW -19 also disclosed the names of Komal,
Aira, Hareem and Arwa, who were also the victims of the appellant. PW- 18 and PW -19
further confirmed that after the arrest of appellan t, his identification parade was conducted
and out of many persons they identified the appellant. The statements of both the statements are fully corroborating each other on all material counts and despite lengthy cross -
examination, the defence has failed to give dent or damage to their testimonies.
Undisputedly, the victims of the offence i.e. PW -18 and 19 are minors less than the age of
10-years and a school going girls, who did not carry any ill will, grudge or malice against the
appellant to falsely imp licate him in the case. The evidence of both the victims has been fully
corroborated by the medical evidence as well as the other circumstantial evidence including the expert report, who carried out the analysis of photos and videos. Even otherwise, the testimony of the victim could not be impeached or discredited though subjected to test of
cross -examination by the learned defence counsel. It may be observed that in case of sodomy
or zina the solitary statement of victim is sufficient to convict the accuse d if it is confidence -
inspiring. Reliance in this regard is placed on the case of Fayyaz alis Fayyazi and another v. The State 2006 SCMR 1042, the relevant portion reads as under:
"... It has also been rightly observed by the learned Federal Shariat Court that
conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so
available in the case. Undisputedly victim of the offence namely Khadim Hussa in at
the time of commission of offence was aged about 10 years and a school going boy, who did not carry any ill will, grudge or malice against the appellants to falsely implicate them in the case. It has also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated that after attending the class he was on his way for the home through pavement where wheat crop was standing. He was ambushed by accused persons out of whom accused Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him
and thereafter accused Fayyaz caught hold of him and sodomy was committed upon him by accused Abbas. He also stated that accused was armed with a pistol who threatened him of serious consequences. The testimony of the victim could not be
impeached or discredited though subjected to test of cross -examination by the learned
defence counsel."
7. The case of prosecution has also been strengthened from the medical evidence
produced through PW -10 Dr. Ayesha Faiz, Lady Police Surgeon, Civil Hospital Quetta, who
brought on record that she examined the victims Uzma Mehdi (aged 16/17- years), PW- 19
Urwa B atool (6/7 years) and PW -18 Hifza Afzal (5/6 -years) and after examination she issued
MLCs as Ex.P/10 -A to Ex.P/10 -C. Perusal of said MLCs have established the fact that the
Hymens of victims were not intact and that the sexual act was performed with them. The
Investigating Officer also produced the appellant before PW -13 Dr. Noor Baloch, who after
examination issued MLC as Ex.P/13- A, perusal of which also establishes the fact that the
appellant was potent and was able to perform the act of sexual intercours e. The medical
evidence has also not only established the fact that the victims were sexually assaulted, but
also it has been proved that the appellant was able to perform such act.
8. The case of prosecution has also got strength from the recoveries of Sm art phone Q -
mobile 1 -5 (Art/13), computer C.P.U. Art/18 and USB Art/17). According to PW -5 Saqib
Siddique and PW -8 Hashmatullah that they are the residents of the said Colony and on 3rd
July 2015 at about 9.30 p.m. they were present in Police Line, when three vehicles of Police Station Cant came over there, in which SDPO Shamroz, Naeem Saqib, SHO and Riyasat Ali, SIU were present and Riyasat Ali informed them that a case for sexual assault has been lodged against the appellant and a raid is required to be c onducted in the house of appellant
and requested them to become the witnesses of the raid, thus they agreed and accordingly raid was conducted in the house of appellant and during course thereof Smart phone Q -
mobile 1 -5 (Art/13) was recovered from personal possession of appellant, while the search of
his house was resulted into recovery of Computer C.P.U. Art/18 and USB Art/17. It has also been observed that the said articles were also produced in the trial Court and on the request of prosecution the memory card already recovered from the possession of appellant as well
as his Smart phone, USB and computer were played, perusal of which transpires that the appellant had taken hundreds of porn snaps and tenths of videos where appellant had been sexually abusin g the number of minors by unnatural offence, fingering in virginal part and
other such obnoxious act.
9. The prosecution in order to establish the porn snaps and videos recorded in the above
articles sent the same for analysis and accordingly PW -15 Ali Muh ammad produced the
digital forensic examination report as (Art/29, 1/15 to 15/15), however, the analysis report would further strengthened the case of prosecution that the pornography were genuine as the same was forensically examined, but no frame inserti on, editing, forgery, deletion was
identified and even the same were not modified in any form.
10. Adverting to the defence plea of the appellant, suffice to observe here that the
appellant throughout the trial has failed to take any solid or concrete plea against all the
witnesses for his false implication. The trend of cross -examination transpires that the
appellant infact had made an attempt to set -up his plea on the ground that he has been
involved in the crime in order to get vacated the official quart er from his possession.
However, the fact remains that not only the memory card contains porn snaps and videos of minor girls, but also the Computer, USB and Mobile phone of the appellant also contained such abusive porn snaps and videos of minor girls. Even otherwise, the minor daughters and nieces of PW- 1, PW -2, PW -3, PW -4, PW -6, PW -7 and PW -9 were sexually assaulted, their
porn snaps were shot and videos were filmed. It does not appeal to the logic that numbers of respectable persons involved the appella nt in such kind of heinous crime just to vacate the
quarter from him, when otherwise they put their prestige at stake and also it is a stigma on victims' families. The appellant in order to satisfying his sexual lust spoiled the entire lives of minor victi ms. We also do not see any reason why the victims and their families would
falsely nominate the appellant and bring upon themselves societal odium; in any event no suggestion was put forth to the effect that the complainant or the victim had any animosity or
ill will against the appellant.
11. The reappraisal of entire prosecution evidence is enough to establish that the
prosecution through oral, direct, circumstantial and medical evidence has succeeded in
establishing the charge under sections 376 and 377, P.P.C. against the appellant beyond the
shadow of any reasonable doubt for committing the rape and unnatural carnal intercourse with the victims. The defence has failed to bring on record any ill -will or ulterior motives on
the part of PW -1, PW -2, PW -3, PW-4, PW -6, PW -7 and PW -9 for false implication of the
appellant. Besides, two victims i.e. PW -18 and PW -19 testified that they were sexually
assaulted by the appellant and not only both the witnesses during identification parade, but also in the trial Cour t identified the appellant as culprit, who sexually assaulted them. The
recovery of memory card and subsequent recoveries of his mobile phone, computer and USB containing abusive articles has been proved. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of
prosecution witnesses. The learned trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted the appellant.
12. So far as the quantum of sentence i.e. Capital punishment of death is concerned, we
do not find in agreement ourselves with regard to the same. Suffice to observe here that though number of victims were named, who were sexually assaulted, but the prosecution has failed to produce all the victims. Even all the victims are minors, while a major victim namely Uzma was not produced by the prosecution, though her confessional statement is also available on record, hence the pleas of remaining victims have not come on record. Besides, the victim s have also kept mum till the arrest of the appellant, thus under these circumstances
awarding of capital punishment to the appellant is unwarranted.
13. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant Tayyab Raza son of Tanveer Hussain under section 376, P.P.C., his sentences of
death on two counts each are converted into R.I. for life on two counts each and the remaining sentences shall remain intact.
With the above modification in the quantum of, Criminal appea l is dismissed,
consequently the murder reference is answered in negative.
JK/246/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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