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2016 S C M R 1554

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masud, JJ

HAIDER ALI and others---Petitioners

Versus

The STATE---Respondent

Jail Shariat Petition No. 13 of 2009, decided on 15th June, 2016.

(Against the judgment dated 6-4-2009 passed by the Federal Shariat Court, Islamabad in Criminal
Appeals Nos. 4/K and 81/I of 2007 and Criminal Murder Reference No. 1/K of 2007)

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Penal Code (XLV of 1860), S. 34---Gang rape---Re-appraisal of evidence---Benefit


of doubt---FIR was lodged with a delay of one day and the complainant had admitted before Trial
Court that FIR had been lodged after consultations and deliberations---Alleged victim initially
claimed that three persons had committed rape with her repeatedly in some bushes, but she changed
her story during the trial and alleged that the incident took place in an under-construction house--
-Such change of the place of occurrence was irreconcilable pointing towards falsehood of the story-
--Medical evidence did not show any marks of violence on any part of victim's body despite an
allegation that she was raped nine times by three persons---Doctor who medically examined the
alleged victim clearly found that her hymen was old torn---Accused persons had not been
nominated in the FIR and no test identification parade had been held under supervision of a
Magistrate so as to positively incriminate the accused persons---Prosecution only relied upon
identification of accused persons by the alleged victim before the Trial Court---During trial alleged
victim had many opportunities to see the accused persons before they were statedly identified by
her---Such identification was unsafe---No DNA test had been conducted nor any semen matching
was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the
alleged victim belonged to any of the accused persons---Accused persons were acquitted of the
charge in such circumstances by extending them benefit of doubt.

(b) Criminal trial---

----Identification of an accused person before the Trial Court during the trial---Generally unsafe.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Muhammad
Afzal alias Abdullah and another v. State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad
Iqbal 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Ghulam
Shabbir Ahmed and another v. The State 2011 SCMR 683 ref.
Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner No.1.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner No.2.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

Date of hearing: 15th June, 2016.