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 appellan t Tayyab Raza son of Tanveer Hussain, against the judgement dated 31st October 2018 (hereinafter referred as, "the impugned judgement ") passed by learned Additional 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 his 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 judgeme nt 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 compensation 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 appellant or otherwise. This Court that on 3rd July 2015, the complainant Muhammad Afzal Nadeem son of Muhammad Inayat, lodged FIR appointed Advocate, appellant. Mr. Rafiullah as counsel for Barech, pauper 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 of ficers, 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 nineteen (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 Bareach, Advocate, as counsel for pauper appellant.
4. Heard the learned counsel and perused the available record. In order to substantiate the charge, the prosecution 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 reached 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 appellant 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 and 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 said 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 cons ent 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 assaulting 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 children 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 their 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 defamed 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, Hira 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 appellant, 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 implicate 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 accused 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 Hussain 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/ 7-years), PW-19 Urwa Batool (6/7 years) and PW-18 Hifza Afzal (5/6-years) and after examination she issued MLCs as Ex.P/1 0-A to Ex.P/10-C. Perusal of said MLCs have E 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 intercourse. 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 Smart 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 conducted 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 posses sion 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 abusing 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 Muha mmad produced the digital forensic exam ination report as (Art/29, 1/15 to 15/15), however , the analysis report would further strengthened the case of prosec ution that the pornography were genuine as the same was forensically examined, but no frame insertion, 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 quarter 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 appe al to the logic that numbers of respectable persons involved the appellant 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 victims. 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 Court 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 statemen ts of prosecution witnesses. The learne d 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 concern ed, we do not find in agreement ourselves with regard to the same. Suffice j 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 victims 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 convi ct-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 appeal is dismissed, consequently the murder reference is answered in negative.