Motorway gang-rape convicts likely to appeal against ATC verdict

Say occurrence allegedly took place at 3 in dark night but prosecution failed to prove the source of light

LAHORE:

Both the convicts of motorway gang rape case have prepared their appeals against the judgment of Anti-Terrorism Court (ATC) wherein they were recently handed down death sentence, life imprisonment and imposed fines for committing rape with a woman before her children.

The appeals are likely to be filed in Lahore High Court (LHC) on Thursday (today).

The counsels for the culprits have implored the court that the impugned judgment passed by the ATC court on March 20, 2021, wherein the appellants have been convicted and sentenced, is against the facts and law applicable to the facts in this case.

They maintained that it was a dark night occurrence, which allegedly took place at 3am but the prosecution miserably failed to prove the source of light.

The counsels added in their appeals that as per the record, the investigation was conducted by one Muhammad Asif Sub-Inspector, whereas, the person who appeared as investigation officer in the court specifically narrated his name as Asif Ali Sub-Inspector.

They said who actually investigated the case was a mystery as one prudent person could not wrongly mention his name on each and every document.

That Khalid Masood (prosecution witness-31) had not identified the appellants before the area magistrate nor before the trial court which creates serious dent in the prosecution case but the trial court has not paid attention to this pivotal aspect of the case, the appeal noted.

The counsels prayed the court that the appeals of the convicts be accepted and the impugned judgment set aside and the appellants may be acquitted of the charges.

Read: Both accused in motorway gang-rape sentenced to death

Abid Malhi’s appeal

Counsel Sher Gul Qureshi, representing convict Abid Malhi, contended in his appeal that the prosecution had failed in establishing its case and based on many contradictions which the trial court could not evaluate.

He said the prosecution had “badly failed” to prove their case as from the vary inception, it started interpolating the case which was evident from the record.

FIR was chalked out on the basis of rapt No 7 which was entered on September 9, 2020 at 10am whereas victim of this case was referred for her medical examination on September 9, 2020 prior to lodging of FIR so it is a clear example that record was interpolated, which is why prosecution did not produce daily diary register, the appeal said.

It was further added that offence u/s 7 Anti-Terrorism Act, 1997 was inducted by Muhammad Asif SI, PW-34 on September 14, 2020 after the lapse of five days and in this interregnum statements of material witnesses were recorded on the very first day of occurrence.

The appeal said it is a not case where legal opinion was sought from the experts so prima facie offence u/s 7 Anti-Terrorism Act, 1997 was added just to entrust the investigation to the official of their choice.

It was further argued that offence u/s 365-A PPC ipso facto did not provide jurisdiction to Anti-Terrorism Court as in 3rd Schedule attached with Anti-Terrorism Act, 1997, only offence abduction and kidnapping for ransom is triable by Anti-Terrorism Court and offence kidnapping for ransom is defined in Anti-Terrorism Act, 1997 and if we put the fact and circumstances of the case on the compass of said definition, this court lacks jurisdiction.

It was vehemently argued that Muhammad Asif SI, PW-34 maintained in his examination-in-chief that he received information qua the matching of DNA of Abid Ali accused on September 12, 2020 but astonishingly report of Punjab Forensic Science Agency was dispatched on September 14, 2020 which also makes the genuineness of the report doubtful.

Read more: Lahore motorway gang-rape survivor identifies prime accused

Shafqat alias Bagga’s appeal

Advocate Qasim Arain, counsel representing convict Shafqat alias Bagga contended that the appellant was not named in the FIR and the description mentioned in the FIR is altogether different from the physical features and age of the appellant.

That the DNA report wrongly relied upon by the learned trial court as it was allegedly prepared on September 11, 2020 and dispatched to the police on September 14, 2020 and received by the police on September 15, 2020 but the appellant was arrested on September 13, 2020 which shows that the appellant has wrongly been booked, the appeal said.

Appellant Bagga had been booked by the prosecution through CDR of co-accused but the prosecution miserably failed to produce any attested copy of CDR from any company nor of any representative was produced as a witness regarding the truthfulness of alleged CDR, hence it was illegally, unlawfully believed by the learned trial court, when the SIM was not in the name of the appellant or other SIM in the name of co-accused, it added.

The identification parade of Bagga was not conducted by the learned judicial magistrate as per the rules and orders of the Lahore High Court and it was categorically admitted by the learned judicial magistrate that after lining-up the appellant with dummies, one warden was sent to take the witness and no arrangements were carried out for transparency of the identification parade by the learned judicial magistrate, hence this doubtful peaceful of evidence has been relied upon by the trial court which is illegal and unlawful.

The appeal maintained that the buckle swabs of Bagga which should have been taken as per the SOPs in the office of PFSA were allegedly taken outside the PFSA.

If further said that they were also taken allegedly at camp jail, Lahore without assigning any reason but the learned trial court had not truly appreciated this fact.

In September last year, the woman was travelling with her children when her car stalled in Gujjarpura as it ran out of fuel.

She called her one her relatives and sent him her location on the motorway. When the relative reached the location, he saw the woman panic-stricken with blood stains allover her clothes. The windowpanes of her vehicle were also broken. The victim told the police that she was waiting for her relative to pick her up and her children when two armed men attacked her.

One of them struck the car with clubs and the other held them hostage at gunpoint.

The attackers then took her and the children to a nearby forested area where they gang-raped the woman.

Later, they robbed her of valuables which included Rs100,000 cash, two gold jewellery pieces, a bracelet, car registration card and three ATM cards and left her stranded.

Later police arrested the suspects and submitted challan, declaring them guilty. Owing to security reasons the trial of the accused held at prison.

Court recorded and cross-examined statements of around 35 prosecution witnesses. The accused in their statement under 342 CrPC pleaded not guilty and contended to contest the charges.

In previous hearings, the defence raised many questions over the jail proceedings, attempting to establish that the accused were innocent and had been implicated in a ‘forged case’. However, the victim identified the prime accused, Abid Malhi, as one of the perpetrators of the crime while he was presented before the court.

In earlier proceedings, on pointing out through a request submitted by the prosecution for recording evidence of the minors if court deems them competent, the court dismissed the request of the prosecution after the trial court judge observed that children appeared before court were minors and not competent for the said purpose.

However, the court put some queries to the minors like “Which school do you go to and in which class do you read” and some other questions of similar nature, but the children responded that they didn’t know anything.

Also read: ATC indicts accused in motorway gang-rape case

Judgement

The judge in the written verdict said that it has been concluded that prosecution has proved the case against the accused, Abid Ali and Shafqat Ali alias Bagga.

“The offence of rape is heinous offence and when it is committed in the eye sight of children of the victim, heinousness further magnified and which is shocking for general public as well so such accused persons should be dealt with iron hand,” the judge wrote in a verdict.

The court said both accused took victim from the vehicle forcibly and brought her down in a jungle “which reflect common intention of both the accused so both the accused persons committed offence u/s 376(ii) PPC [Pakistan Penal Code] in furtherance of their common intention, thus both the accused namely, Abid Ali s/o Akbar Ali and Shafqat Ali @ Bagga s/o Allah Ditta are convicted and punished u/s 376(ii) PPC to Death”.

The judgement said the convicts be hanged by their necks until they are dead but added that the sentences should not be executed till its confirmation by the Lahore High Court.

Besides confiscating their properties, the court also awarded them life sentences over kidnapping and adducting charges.

The court also imposed Rs200,000 fine each and also awarded 14 years imprisonment to both accused under Section 392 of PPC for robbery.

The court awarded five years imprisonment to both accused under Section 440 of PPC for mischief, besides imposing Rs50,000 fine.

“It has been established on record that during instant occurrence victim received injuries which comes within the ambit of Jurh Ghayr Jaifah Damiyah, thus both the accused persons are convicted and punished u/s 337-F1 and they are directed to pay Daman Rs.50,000/- each to the victim,” read the judgement.

All the sentences shall run concurrently and benefit of Section 382-B CrPC shall be given to each convict, it added.

As per judgement, convicts can challenge their conviction within seven days in the Lahore High Court.