PESHAWAR: Peshawar High Court has set aside conviction of two persons in a high profile case of sexual assault and murder of an eight-year-old girl in Nowshera and has remanded the case back to the trial court.
A bench consisting of Justice Ishtiaq Ibrahim and Justice Sahibzada Asadullah ruled that the prime accused named Abdaar, who was awarded death sentence by the trial court, was not provided an opportunity of a fair trial.
While remanding the case back to the trial court, the bench ordered that if an application was submitted by the appellant regarding a particular set of witnesses, who were examined but not by the counsel of the choice of the appellant, an opportunity must be provided to him for cross examination of the desired witness.
The bench directed that the trial court must took into consideration the application and to call the witnesses mentioned therein and the counsel, if engaged by the appellant, would be given opportunity to cross examine them.
Bench rules opportunity of fair trial not given to prime accused
A child protection court had on December 1, 2021, sentenced the prime accused to death for assaulting and killing the minor girl.
The trial court had also convicted a co-accused named Rafiqul Wahab under Section 302 of Pakistan Penal Code and sentenced him to life imprisonment with a fine of Rs200,000 to be paid as compensation to the legal heirs of the deceased. However, he was not found guilty of sexually assaulting the deceased.
The girl was killed on January 18, 2020, in the limits of Nowshera Kalan police station. The postmortem report confirmed that she was sexually assaulted.
The bench ruled that in the particular case, not only the district bar went hostile against the appellant, but the atmosphere of the bar as well because all the competent advocates submitted their power of attorneys in favour of the complainant and against the appellant, may be for the reason that the appellant was charged for a heinous offence and it was the gravity of the offence that invited the sympathies of the competent advocates to represent the complainant against the appellant.
“We will not give any definite finding regarding the merit of the case and regarding innocence or otherwise of the appellant, but what disturbs us is that the appellant was not given proper opportunity of fair trial and that he could not be represented as he should have been and even the learned trial court failed to take into consideration this particular aspect of the case,” the bench ruled.
The bench observed that the appellant deserved to be given an opportunity of fair trial, but the same was not given and in that circumstances interference was a must by the court.
Advocate Shabbir Hussain Gigyani appeared for the prime accused and without going into merit of the case contended that the appellant was denied right to fair trial and he could not engage a counsel of his choice.
He pointed out that as none of the lawyers in Nowshera was willing to appear for the appellant during trial, he had submitted an application to the trial court from jail, for engaging a counsel for pauper.
He stated that the trial judge had marked the said application to the president of Nowshera District Bar Association, Mian Arshad Jan, and he had provided a list maintained for that purpose.
He contended that an inexperienced lawyer was then assigned the task to defend the appellant, thus he was deprived of the services of a senior advocate.
Mr Gigyani argued that nearly all advocates of repute including Mian Arshad Jan, Syed Azizuddin Kakakhel, Mohammad Ijaz Khan and Mian Naumanul Haq Kakakhel had submitted their power of attorneys in favour of the complainant. He added that those lawyers were enjoying good reputation and influence in the bar.
It is pertinent to mention that the murder had triggered a public outcry with civil society groups staging several demonstrations and the users of social media highlighting the issue.
People also held a demonstration outside Khyber Pakhtunkhwa Assembly’s building after which the house discussed the incident and subsequently drastic changes were made in Khyber Pakhtunkhwa Child Protection and Welfare Act for enhancing punishments for offences related to violence against children.