b) The victim according to the definition of the criminal law for the year 1991 (is not a
child) because she is (17 years) old, and was pregnant from the accused, therefore, she is
an adult and therefore, falls under the definition of an (adulterer).
c) The report points out to an (obvious and clear doubt) of the prosecution exhibit (3) which
determines the (age) of the victim because there were amendments or crossing out to
reassure that the victim is (14) years old and the defence appealed against this exhibit in
front of the concerned authority and investigations in this matter is still ongoing to locate
the official record although it was dated in the year 2000, and the court denied the
accused of presenting his witnesses to testify to the age of the victim, especially the
witness requested by the defence who is the school principle of the victim and is aware of
the real age of the victim and denying the accused of his legal right to prove the
falsehood of the exhibit is denying the right of defence, and it was expected to give a
balanced justice in presenting evidence in support of the applicant and the right of
defence in order to reach a justifiable sentence.
d) The argument of (the real age) of the victim is the concern of the criminal, which might
not be the case with the Child court.
e) What the (accused) have testified to is a (Hadd) crime, and according to the Sharia laws,
the court should have requisitioned and re-examined the accused in accordance to article
62 of the evidence law for the year 1994, paragraph (A) (Clear testimonial in front of the
court unless otherwise changed /retreated before the execution of the sentence) and the
penalty of adultery is (stone to death) for married subjects and lashing for unmarried
subjects.
f) The sentence for conviction was based on testimony solely and the victim was an (adult)
on the ground that she became pregnant according to article (62) evidence for the year
1994 where a DNA testing was supposed to be carried out to establish that the infant is
indeed the accused’s child, and to eliminate any doubts to the (pregnancy) regardless of
his (sexual encounters) according to his testimony and in summary he requests:
A) To reject the sentence and set his client free
B) To eliminate any doubts to rerun the tests to establish the relationship of the
accused with the (pregnancy) and to refer the applicant to the medical board to
redetermine her age, for her age will determine the proper child authority
C) To allow the defence to present an additional exhibit regarding the case and
determine the age of the applicant.
I believe the cassation should be determined according to the following manners:
First:
There are no doubts as to the gravity of the indictment according to article (45) paragraph (B)
which its penalty is stated in accordance to article (86) of the child law under paragraph (W) that
the penalty should be physically extreme (execution or life imprisonment)
Second:
The following flaws are evident from the case report:
a) The illegal pregnancy of the victim
b) The testimony of the accused of committing the criminal law and his relationship with the
applicant