04 December 2004	Saturday	21 Shawwal 1425

LAHORE, Dec 3: The advocate-general office of the Lahore High Court has declined a home department's request for filing an appeal against a sessions court's decision of acquitting four of the seven accused charged with the offences of adultery and murder of a girl.

According to home department's sources, the AG office has given a legal opinion in declining to file an appeal against the decision which is primarily based on the premises that the prosecution case is based on circumstantial evidence which creates doubts about many aspects of the case resulting in benefits accruing to the four co-accused.

The voluminous opinion has dealt with a variety of legal aspects of the case to explain at length which is the appropriate appellate forum if the accused are charged under the Hudood Ordinance, simultaneous with the allegation of murder under Section 302 of the PPC. Also discussed at length in the opinion is the legal aspect of doubt and circumstances for capital punishment.

The prosecution case was that seven people, Tahir Sarwar, Usman Khalid, Saifur Rehman, Khalil Ahmad, Afzaalur Rehman, Javed and Hafeezur Rehman Yasir, kidnapped 16-year old Ambreen, a second-year student of the Government Degree College, Sheikhupura, committed adultery and killed her. They were charged under sections 10 and 11 of Hudood laws and sections 302, 201 and 34 of the PPC.

The sessions court on Sept 6, 2004, awarded death sentence to Tahir, life imprisonment to Usman and Saifur Rehman and acquitted other four. The home department wanted to file an appeal against their acquittal.

Assistant advocate-general Raja Abdur Rehman, who worked out the opinion, said in his report that the trial court had sound reasons for acquitting four of the seven accused.

He also cited laws to state that it was a settled legal principle that if charges were framed under both the Hudood laws and the PPC, an appeal against acquittal was to be filed with the Federal Shariat Court, and the high court was not a proper appellate forum. For this argument, he relied upon PLD 1984 FSC 3, PLD 1983 FSC 33 and 1989 PCrlJ 1330.

The report says that superior courts have invariably refrained from interfering in the decisions given by subordinate trial courts on such criminal charges unless a clear legal anomaly is found.

The Supreme Court, the Federal Shariat Court and the high courts have ordained against interfering in matters relating to acquittal. Such an interference has been made only if evidence was misread or the trial court had received evidence illegally.

Quoting from the Holy Quran and Hadith, Raja Abdur Rehman said doubt is a state which the perpetrator of crime finds himself or is subject to when he may have had some excuse for the offence.

In such cases, Tazeer is removed. Shariat jurists have considered the rule of repealing Had on account of doubt as a legal rule rather than text of the case. Also finding place in such a situation is a consensus as a basic rule for Had if the element of doubt is missing. In case of strong doubt, lesser Tazeer is also awarded and is proven by numerous decisions under the Shariat law.

He said it was preferable to err in forgiving rather than erring in punishment. No judgement against offender can be passed unless the judge is absolutely clear and the case is conclusively proved. Acquittal in a state of doubt is nearer to justice rather than punishing an innocent.

That is so because the Islamic justice system does not contemplate hardship to the people because punishing a person mistakenly is often difficult, and at times impossible, to rectify. Quoting from another judgement, he said. It is better to acquit 10 guilty than to convict one innocent.

The AAG said the trial court's decision of acquitting four co-accused was neither fanciful, nor capricious and illegal. It was rather based on solid legal grounds. He also stated that an appeal against the sessions court decision already stood time-barred.