SHC sets aside acquittal of schoolteacher in child rape case

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The Sindh High Court on Tuesday set aside the acquittal of a retired schoolteacher in a child molestation case and remanded back the case to a sessions court for trial de novo.

The order came on suo moto criminal revision application with regard to the acquittal of retired schoolteacher Sarang Shar in a child rape case in Mirwah, Khairpur. According to the prosecution, the accused was involved in child molestation and made a video when the victim came to his house for getting tuition.

The court was informed by the amicus curiae in the case that the accused was acquitted by the trial court by extending him the benefit of the doubt on the ground that alleged video was not sent for its forensic examination.

The additional prosecutor general submitted that trial court did not allow the prosecution application for forensic examination of the alleged video. The court was requested to call the record and proceedings of the case while exercising powers under Section 435 of the CrPC.

A single bench headed by Justice Salahuddin Panhwar called the record and proceedings of the case, and after perusal of the record observed that the complainant party also filed a compromise application with the accused and forgave him with regard to the offence of rape.

The court observed that the trial court also failed to examine the judicial magistrate who recorded the statement of one witness to determine the truth or falsehood of the evidence of the witness, which was a clear case of miscarriage of justice.

It further observed that it was also revealed that despite the availability of a USB, the same was not sent to forensic examination and the prosecution application was turned down by the trial court.

The court remarked that the mere failure of the investigation officer or his negligence in not sending the video for forensic examination does not absolve the trial court to send the USB containing videos of the incident to the forensic laboratory to call an expert opinion, which was material and essential to the just decision of the case.

It observed that the trial court failed to get the USB forensically examined with regard to the heinous offence, which was an offence against the society; besides, the trial court has also failed to examine the USB in court to ascertain whether the accused is the same person who has committed such a heinous offence.

The court set aside the trial court order and ordered trial de novo of the accused by the district and sessions judge of Khairpur. It directed the trial court to provide a sufficient opportunity to the prosecution to record evidence of the material witnesses and after summing up the prosecution evidence the statement of the accused shall be recorded in accordance with the provisions of Section 342 of the CrPC.

The court observed that trial court put all the material questions relating to the incriminating evidence appearing in the prosecution evidence as well as photographs besides USB shall be examined/assessed as per law and forensic report shall be brought on record.

It said the case should be decided afresh on merits in accordance with law without being influenced by the impugned judgment.

Regarding the compromise application, which was not reflecting in the case diary of the trial court and non-examination of the magistrate, who recorded 164 CrPC statement, the court directed the member inspection team to examine these aspects with regard to the judicial conduct of the presiding officer with due notice and thereafter if case of any negligence and misconduct, he shall take up the matter on the departmental side.

It directed the Sindh IGP to ensure that the USB was sent to the forensic examination and he would also ensure that a forensic examination was carried out by any competent public or private lab within country or out of the country within a period of two months.

The court observed that the accused was in custody at the time of the trial therefore he shall be taken into custody. It directed the SHO concerned to keep the accused in District Jail Khairpur.

The district judge of Khairpur shall proceed with the case himself and examine persons who will submit the forensic report.

Published at The News on 16th April 2023

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