The Lahore High Court has freed a rape-cum-dacoity convict on benefit of doubt after years of imprisonment.
Appellant Zafar Iqbal alias Zafari was awarded 18 years of rigorous imprisonment and a fine of Rs15,000 over the charge of raping a woman during a dacoity in 2011. However, the prosecution failed to prove the case beyond any reasonable doubt before the appellate court. Justice Sardar Ahmed Naeem of the LHC set aside the verdict of the trial court and directed the authorities concerned to release the appellant forthwith.
Police had booked Zafari under Section 376 of Pakistan Penal Code on the complaint of Sahiba Bibi on September 8, 2011, and arrested the suspect. The victim said that Iqbal, along with an accomplice conducted a dacoity while the former took her out of her home to an open area and raped her on gunpoint. The trial court heard the case, declared Zafar guilty and sentenced him to 18 years of jail along with a fine of Rs15,000.
The convict challenged the verdict in the Lahore High Court and it took over a decade to fight his case and secure freedom. Announcing the verdict, Justice Naeem said, “The story of the prosecution does not fit in the probabilities. There is no cavil to the proposition that duty of the Court is to sift chaff from the grain.” The judge ruled that it was a settled principle of law since long that if there was any incriminating circumstance, flowing from any criminal appeal event/circumstances or documentary evidence, question in that respect had to be put to the accused seeking his reply/explanation in his statement under section 342, CrPC. If it was not done so then such circumstances had to be excluded and in no case any order regarding prejudice or conviction could be passed against the accused persons on the basis of such circumstance.
“If question of such circumstances has been ignored by the learned trial Court then it is illegal and amounts to an abuse of the process of the Court,” Justice Naeem ruled. The judge also held that the father of the victim also claimed to be the eyewitness of the occurrence, while the incident took place at 8:00pm and the prosecution could not prove if it was 6th or 7th of September or if it was midnight between 6th or 7th September.
According to the ruling, the record of the case was totally silent regarding the source of light at the place of occurrence or the room wherein the father and sister of the victim were confined and they claimed to have witnessed the occurrence. The judgment held that the woman claimed to have been raped by the appellant in an open field but neither any family member nor any passerby or independent person was cited by the prosecution in support of the complainant’s version. The parties, it held, were related to each other and at some stage, there was a chance of betrothal/engagement between the victim and the appellant.
The counsel for the appellant argued that the prosecution miserably failed to prove its case as no independent witness was produced; the eyewitness account was full of contradictions and discrepancies; the medical evidence lent no support to the prosecution story; the case of prosecution was improbable and did not fit in the probabilities; the benefit of doubt was the vested right of the accused and not to be extended by way of concession but grace as of right, thus, the appellant was entitled to acquittal.
Meanwhile, Zafari, the appellant, claimed, “It is a false case which was lodged against me on the behest of Ashraf Thaikedar with whom I had exchanged hot words. The victim, Sahiba Bibi, has illicit relations with Ashraf Thaikadar and on his instigation, the complaint was lodged and this false case was made against me. All the prosecution witnesses have falsely deposed against me on the request of Ashraf Thaikidar.”
