Ahsan Ali, his father Roshan Ali Thebo, Shaban Ali Sheikh and Kaleemullah were charged with abducting the 13-year-old girl in January 2007 in her native village in Dadu district and subjecting her to repeated gang-rape after causing her to become unconscious.
The district and sessions judge (south), Fahim Ahmed Siddiqui, pronounced his verdict after hearing final arguments from both sides.
The court in its judgment observed that the entire story of the prosecution was shrouded in mystery as it remained unclear what were the articles that the victim was buying from the shop of an accused and what was sprinkled on her to make her unconscious.
Besides, the verdict said, it was unbelievable that the victim girl was kidnapped in a crowded market, Shahi Bazaar, and taken to some unknown place in Kotri while there were no witnesses to the alleged abduction; no vehicle and nothing about the substance of intoxication allegedly used by the accused was found. Thus, the sole responsibility rested with the prosecution to prove the alleged victim's case.
It further maintained that according to the prosecution the victim was kidnapped from accused Shaban's shop, located in the crowded Mehar Shahi Bazaar, although the investigation officer had neither collected any convincing evidence about the abduction nor testified about it during his statement.
“As per investigation officer, he visited Kotri but found the house of accused Kaleemullah locked. It is unfortunate indeed that no evidence was collected by the IO from Kotri leading to abduction or keeping or confining the prosecutrix there. In fact, the prosecution could not produce any convincing material showing that she was actually kidnapped from the shop of Shaban,” the verdict added.
“It has become clear that the part of evidence of the girl connecting to the story of sprinkling something and making her unconscious is not confidence inspiring as she was kidnapped and taken to some unknown place in unconscious condition, therefore her statement needed corroboration but the same was missing and making the factum of her abduction as not believable.
“I consider that sprinkling of some substance due to which Kainat became unconscious for a considerable long time is the part of story which is not believable. Besides, administering any kind of anesthetic gas is not the job of ordinary person and it requires specialized training to make a person unconscious and remain under anesthesia for some longer period of time,” the verdict said.
It appeared from the testimony of the victim that she was gang-raped by the accused persons at the shop, but in the same breath she deposed that at the time she was unconscious, the judge said. “I am unable to swallow the factum of gang-rape in unconscious condition. The doctor could not find any mark of violence on the soul of prosecutrix. No medical evidence is available on record which transpires that the prosecutrix subjected to zina-bil-jabar.”
He further stated that the investigation officer, inspector Ghulam Sarwar, had damaged the case of the prosecution by saying during cross-examination that as per the case diary of March 3, 2007, it had been mentioned that the victim was raped, but the act was not committed forcibly. The IO was declared hostile on the request of the prosecution, but during the cross-examination the prosecutor did not ask any direct question about this aspect, nor were suspicions cast on the credibility of the IO.
The judgment said that accused Ahsan in his statement recorded under Sections 342, 340(2) of the criminal procedure code admitted a relationship with the girl under an explanation that she was his wife and that he and Kainat loved each other and contracted a court marriage as the latter's father opposed this matrimonial alliance.
The defence side has produced an affidavit of freewill marriage, a Nikahnama and three meaningful photographs, according to the judgment.
Although the Nikahkhwan and the magistrate before whom the free-will marriage was executed were not produced by either side for examination, the defence had produced a relevant person before whom the Nikah was registered and he verified that the Nikahnama was a registered document. The Nikahnama was well in the knowledge of the prosecution as it was taken into custody by the investigation officer during investigation, but the prosecution had not disclosed the same during trial, the court observed.
The victim has denied having solemnised marriage, but in her cross-examination she admitted that she went to a court in Hyderabad for the execution of a freewill marriage, but contended that she was taken there under intoxication and initially she remained silent because of pressure put on her by the accused. However, referring to the alleged intoxication, the court ruled that this aspect of the case had not been proved.
The prosecution also claimed that the victim was minor (13) at the time of the alleged incident, so the Nikah and her consent had no legal status. However, the court observed that the victim was not examined regarding age, but the general examination done by the medico-legal officer said the findings about her puberty were positive.
“Thus in my opinion, the prosecution failed to prove that victim was not a sui-juris on the date of marriage. In the absence of such proof and in the presence of affidavit sworn by victim, availability of photographs in joyful and carefree mood with accused Ahsan as well as a registered Nikahnama, a conclusion could be safely drawn that the victim was in puberty, major, and was consenting party to marriage,” it added. The judgment further said that the court could not encroach on the jurisdiction of a family court, but was obliged to take a presumption favouring the accused from a registered Nikahnama.
“In Sharia, puberty is sufficient for consummation of a marriage. I, therefore, found no hesitation to hold that in presence of a Nikkah, the offence of zina for accused Ahsan is also engulfed under the thick cloud of doubt and the prosecution did not bother to take pain in removing these doubts,” it concluded.
According to the prosecution, the accused persons kidnapped Kainat Soomro on Jan 10, 2007 when she went to the shop of Shaban to purchase some articles in her native village of Mehar in Dadu district. He and the others sprinkled some substance on her, causing her to become unconscious, detained her for three days and subjected her to gang-rape several times, it added.
Later, the police arrested all the accused for their alleged involvement in the case.
A case (FIR 22/2007) was registered against the accused under Section 10(4), the Offence of Zina (Enforcement of Hudood) Ordinance, and Sections 363, 344, 365-B and 337-J, 34 of the Pakistan Penal Code at the Mehar police station on the complaint of the victim's father. Later, Section 10(4) of the Hudood Ordinance was replaced with Section 376(2) of the Pakistan Penal Code (the section was inserted through the Protection of Women Act 2006).
Initially, the case was tried in the sessions court of Dadu, but the Sindh High Court had it transferred to the district and sessions court (south) in Karachi on the request of the victim's father.
All the accused were produced before the court in custody. Following the pronouncement of the order, the judge directed the jail authorities to release them if not required in any other criminal case.