PESHAWAR: The Peshawar High Court has set aside on technical grounds conviction of a person charged with sexually assaulting a minor girl and remanded the case back to a child protection court for retrial.

A single-member bench consisting of Justice Mohammad Ijaz Khan allowed an appeal filed by the convict, Fazal Wahid, observing that he was indicted for committing offence of rape under section 376 of Pakistan Penal Code, whereas the allegations levelled against him in the FIR were that of sexual abuse falling under section 377-B of PPC.

While remanding back the case to the child protection court (CPC), Swat, the bench directed that the trial court should frame an amended charge as per allegations made in the FIR.

The bench also ordered releasing the appellant on bail on condition of furnishing two sureties of Rs500,000 each.

Remands case to child protection court for retrial

The appellant was convicted by CPC on April 13, 2022, under section 376 and 511 of PPC. He was sentenced to five years imprisonment with fine of Rs50,000.

The trial court had also ordered that since the child victim suffered mental and physical anguish, the compensatory fine of Rs100,000 was awarded to the victim to be payable in the form of saving certificates to her.

The appellant was also charged under section 52 (sexual abuse) of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, but in its judgment, the trial court had dropped that section observing that the provision was dropped so as to avoid double jeopardy.

The FIR of the occurrence was registered on August 28, 2021, at a police station in Swat under section 376 and 511 of PPC and section 53 of KP Child Protection and Welfare Act.

The victim, a child of around seven, had visited police station along with her father and reported the matter to the local police.

She had stated that she was sent by her mother to a nearby shop in order to bring pulses and as soon as she reached there, the shopkeeper (accused) caught hold of her and tried to rape her. However, she stated that her younger sister, who was searching for her, reached there and she was allowed by the accused to go.

The accused had denied the charges and claimed mala fide on part of the complainant’s family. He claimed that the complainant’s family had been purchasing grocery items from his shop on loan and when he demanded money, he was implicated in a false case.

The trial court had not accepted his plea and also referred to different articles of the UN Convention on the Rights of Child while convicting him.

The appellant’s counsel contended before the high court bench that in view of the nature of the allegations levelled in the FIR and the evidence produced by the prosecution during trial, the same could not constitute an offence of rape punishable under section 376 PPC as there was no allegation of rape in the FIR.

He contended that the allegations levelled in the FIR would squarely attract the provision of section 377-B PPC.

He stated that lacuna in the framing of charge could have been ignored, had the trial court not dropped the charge under section 53 of KP Child Protection and Welfare Act in its judgment. He said that it was a fit case for remanding back to the trial court for framing of an amended charge and thereafter to conduct a fresh trial.

Published in Dawn, September 5th, 2022