KARACHI: The Sindh High Court on Tuesday set aside the acquittal of a schoolteacher and ordered a Khairpur court to conduct his fresh trial in a case pertaining to the rape of a child.

In 2020, a retired government schoolteacher was booked and arrested for sexually assaulting a number of his students, aged between 10 and 12, whom he tutored at a private property in Khairpur. The issue had come to light when a picture and video showing the teacher raping a child went viral on social media. However, the trial court had acquitted the accused in April this year.

Justice Salahuddin Panhwar of the SHC had taken notice of the matter and converted it into a criminal suo motu revision application when it was brought to the notice of the court that the trial court had acquitted the accused on the ground that the alleged video was not sent for a forensic examination.

In his verdict, the bench observed that the trial court did not adopt a legal course and the acquittal was a clear case of “miscarriage of justice”.

Justice Panhwar also ordered the member inspection team (MIT-I) of the SHC to examine the judicial conduct of the trial judge.

He also directed the inspector general of police (IGP) to ensure that the USB containing crucial evidence must be sent for a forensic examination through any competent public or private laboratory within the country or abroad within a period of two months.

“Besides, accused not only involved in committing sodomy with minor boy but the accused having the history of committing such a heinous offence with other minor boys/students, capturing the video clips and flashing the same on electronic media is not disputed,” the judge wrote in his verdict.

“The USB received by the prosecution was exhibited in evidence including the photographs of accused person with victim while committing sodomy, however, no specific question was asked in the statement of accused recorded under Section 342, CrPC with regard to production of USB as well as photographs which were produced without any objection, even accused failed to examine himself on oath as provided under Section 340(2) CrPC,” the verdict stated.

The court observed that the trial court had rejected an application filed by the prosecution for sending the USB containing videos of the incident for a forensic examination.

The bench noted that the trial court did not mention the reason for declining such an application while the investigating officer also did not bother to send the USB for the forensic examination.

“Mere failure of the investigating officer or negligence on the part of the investigating officer during the course of investigation does not absolve the trial court to send the USB containing videos of the incident to the Forensic Laboratory to call expert opinion, which was material and essential to the just decision of the case. Since, the trial court judge failed to get the USB forensically examined with regard to this heinous offence, which is an offence against the society, the trial judge has also failed to play USB in court to ascertain whether the accused is same person who has committed such a heinous offence,” the bench observed.

The bench stated that as per record a compromise application along with an affidavit was filed through which the trial court was informed that the complainant had made a compromise with the accused and forgave him with regard to the offence of the rape.

However, the trial court did not mention the compromise application in its order as well as reasons for not mentioning the same in the case diary as well as the impugned judgement, it added.

The bench also noted that the trial court did not consider the ground that the rape offence was non-compoundable and such an application was not maintainable and it should have dismissed the compromise plea.

“With regard to the compromise application as the same is not reflecting in the case diary of trial court and non-examination of the magistrate, who recorded 164 CrPC statement. The MIT-I shall examine these aspect with regard to 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 added.

The bench further said that since the accused was in custody at the time of the trial; therefore, he must be taken into custody.

About SHC’s suo motu powers, the bench observed that as per Section 435 of the criminal procedure code, the high court got authority to take suo motu in order to call and examine the record of any proceeding before any “inferior criminal court”.

“The case is remanded to the learned district & sessions judge, Khairpur for de novo trial by providing 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 CrPC putting all the material questions relating to the incriminating evidence appearing in the prosecution evidence as well as photographs and USB shall be examined/assessed as per law and forensic report shall be brought on record, then the case should be decided afresh on merits in accordance with law,” the verdict concluded.

Following the verdict, the accused was taken into custody outside the courtroom and sent to Khairpur district jail as per the instruction of the high court

Published in Dawn, August 16th, 2023