KARACHI: The Sindh High Court has issued notice on an appeal challenging the acquittal of three men of the charges of raping a woman on the premises of the Mazar-e-Quaid on different grounds, including non-appreciation of the DNA test findings.
The rape survivor had appealed against acquittal of the then assistant manager for security of the mausoleum, an accountant and a personal assistant to the resident engineer of the Quaid-e-Azam Management Board who were charged with subjecting her to a sexual assault on March 15, 2008.
Two days later, the then 18-year-old woman, was found in an unstable condition outside the mausoleum.
She, accompanied by her husband and other relatives had arrived in the city from Lodhran on March 15, 2008 and the same night visited the mausoleum. She went inside with her husband, who later went to bring other family members waiting outside in a bus. As her husband left to bring in the other family members, the suspects allegedly kidnapped her. She was taken to a room where she was “forced to drink wine and then sexually assaulted,” the police had said.
Police had arrested an assistant manager security of the mausoleum on March 20, 2008 after the victim identified him during an identification parade before the judge. Later, two others were tracked down after the DNA tests of the victim and suspects successfully confirmed their involvement in the case.
A case 50/2008 was registered under Sections 376-B (punishment for rape) and 34 (common intention) of the Pakistan Penal Code on a complaint of the victim’s father at the Brigade police station. Later, all the accused were released on bail.
On April 7, the additional district and sessions judge (East), Nadeem Ahmed Khan, however, acquitted all of the charges in light of the testimonies recorded by the witnesses and final arguments from the prosecution and defence.
Appealing against judgments in March, the survivor’s lawyers Faisal Qureshi and Malik Waseem Iqbal had submitted that the acquittal judgment was based on the presumption that the “offence of Zina (forced rape) and the offence of rape, or gang rape, under Section 376 of the Pakistan Penal Code were not distinct but were the same offences.”
“This misconceived presumption is obvious from the fact that the points framed by the trial court do not refer to the rape incident but rather refer to ‘intention to commit illicit intercourse’,” they argued.
The lawyers claimed that the acquittal judgment, which was passed on April 7, was erroneous because the offence of Zina and the offence of rape are distinct offences.
Lawyers said the judgment was also based on what the judge found to be contradictions in the testimonies given by the complainant, the victim and other witnesses. “The impugned judgment is clearly erroneous because it is a settled law that the testimony of the rape survivor, especially if it is corroborated by the medical evidence against the accused persons, can be the sole basis for the conviction of the accused persons,” argued the lawyers.
The trial court, however, had completely ignored the importance of the medical evidence and the forensic evidence (DNA test), noting that there were no marks of violence on the body of the survivor, which is not necessary. The lawyers pleaded to the court to call record of proceedings of the case from the trial court, examine the same and then set aside the judgment, through which the suspects were acquitted.
While taking up the matter recently, a single bench headed by Justice Irfan Saadat Khan, issued notice to the state and three suspects, for a date to be later fixed by the court.
Published in The Express Tribune, June 20th, 2013.