Full Judgment Text & Judicial Ruling

P L D 2025 Islamabad 357 Before Babar Sattar and Tariq Mehmood Jahangiri, JJ SHAHZAD AHMED---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 294 of 2022 and Jail Appeal No. 302 of 2022, decided on 3rd March, 2025. (a) Penal Code (XLV of 1860)--- ----S. 376---Rape---Sole testimony of victim---Delay in reporting cases of sexual abuse---Actus reus and mens rea for rape---Consent of victim---Use of force not a necessary ingredient for offence of rape---Principles relating to the offence of rape stated. (i) The sole testimony of a victim in a case of sexual abuse, where such testimony is independent, unbiased, straightforward and reliable, is sufficient to support conviction, as it is understood that offences of sexual assault transpire in private, for which reason they are mostly not witnessed by others. (ii) The exception to the rule, that the sole testimony of the victim of an offence of sexual abuse needs no corroboration, are cases where there exists evidence of enmity or a prior grudge between the complainant and the accused. In such cases a court must be cautious in relying on the sole testimony of the complainant, where such testimony is not corroborated by other evidence establishing a link between the accused and the offence he/she has been charged with. (iii) Where corroboration is required, the focus of such corroboration is to determine whether the accused is linked to the offence he/she has been charged with and/or can be placed at the place of occurrence, to ensure that the complainant does not falsely allege that an occurrence took place involving the accused, which never did. (iv) In view of prevalent social realities that inform individual reactions, there can be no presumption that a rape victim would falsely identify an innocent person for the criminal and violent act of a third person who actually committed the offence. (v) Any delay in reporting of an offence of sexual abuse, if not accompanied by facts and circumstances that create reasonable doubt about the occurrence itself, will not create a presumption that the complaint was false in view of a natural inclination of victims of sexual abuse to never report the offence at all. (vi) The evidentiary and probative burden of establishing the actus reus of rape and that intercourse took place without the consent of the victim is on the prosecution. And where the actus reus has been proven beyond doubt, the sole testimony of the victim, when found truthful and reliable by the Court in face of cross-examination, may be sufficient to discharge the onus of proving the mens rea of rape. (vii) Where the fact that intercourse took place is established, and the complainant testifies that the intercourse was against her will and without her consent, the defendant not pleading that intercourse was a consequence of consent granted by the complainant is at his own peril. While the evidentiary burden of proving mens rea remains on the prosecution, the threshold for discharging probative burden is low and can be discharged on the basis of the testimony of the complainant, unless the accused can establish on a balance of probabilities that the complainant granted consent, after which the burden would shift back to the prosecution to prove beyond reasonable doubt that the complainant had not granted consent for intercourse as claimed by the accused. (viii) Use of force is not a necessary ingredient of the offence of rape and intercourse against the will of the victim or in the absence of her consent is in itself sufficient to constitute rape. (ix) While consent may involve submission, submission does not necessarily imply consent and therefore passive submission by a victim, out of fear, without putting up physical resistance, cannot be mistaken for grant of consent. (b) Penal Code (XLV of 1860)--- ----S. 376---Rape---Appreciation of evidence---Solitary statement of victim---Scope---Accused was charged for committing rape with the complainant---Victim appeared before the Court and narrated the occurrence involving the appellant---Victim's account remained consistent despite facing lengthy cross-examination---Trial Court found her testimony credible and reliable and also noted that there was no previous enmity between the complainant and the accused and consequently no motive for the victim to falsely implicate the appellant---Appellant lived in the victim's neighborhood and there was thus no question of the victim being unable to identify the accused---When the complainant reported the crime, she admitted that almost eight months back at the time of registration of the FIR, the victim was pregnant as a consequence of being raped---Victim subsequently delivered a baby girl---Prosecution took samples of the blood of the baby girl as well as the blood of the appellant and the forensic report issued by Forensic Science Agency confirmed that there was 99.99% probability that the appellant was the biological father of the baby girl---DNA report was the corroborative evidence that supported the testimony of the victim---While the Trial Court found that the testimony of the victim inspired confidence, the DNA report confirmed beyond reasonable doubt that the appellant had intercourse with the victim and a baby girl was born as a consequence of such intercourse---Appeal against conviction was dismissed, in circumstances. Ashraf v. The Crown PLD 1956 FC 86; Ramzan Ali v. State PLD 1967 FC 545; Shahzad alias Shaddu v. The State 2002 SCMR 1009; Ibrar Hussain v. State 2007 SCMR 605; Shakeel v. State PLD 2010 SC 47; Habib Ullah v. The State 2011 SCMR 1665; State v. Abdul Khaliq PLD 2011 SC 554; Atif Zareef v. The State PLD 2021 SC 550; Atta ul Mustafa v. The State 2023 SCMR 1698; State of Punjab v. Gurmit Singh 1996 (2) SCC 384; State of Uterperdaish v. Choteylal 2011 (2) SCC 550 and Regg v. Morgan 1976 AC 182 rel. (c) Penal Code (XLV of 1860)--- ----S. 376---Rape---Appreciation of evidence---Medical evidence---DNA report---Scope---Accused was charged for committing rape with the complainant---Prosecution produced the Medical Officers that administered and oversaw the drawing of samples of blood of the baby girl born to the victim as well as the accused---Prosecution also produced witnesses who testified how the blood samples were handed over by the hospital to the police authorities, how they were kept in the Malkhana and how they were dispatched to Forensic Science Agency for DNA analysis---DNA report had been exhibited in evidence---In this view of the matter, no case had been built up by the defence to establish that the DNA report or its content ought not be read into evidence or that the conclusion drawn from such a report that the appellant was the biological father of the baby born to the victim was erroneous---Appeal against conviction was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----S. 376---Rape---Appreciation of evidence---Delay of eight months in lodging the FIR---Inconsequential---Accused was charged for committing rape with the complainant---Trial Court had dealt with the question of eight-month delay in registering the FIR while highlighting conceptions of honor and shame that prevent the reporting of crimes involving sexual abuse---Victim was a twenty-year-old unmarried girl at the time of the occurrence, belonging to a family of laborers and all her siblings were younger than her---Victim not reporting the occurrence to her family was understandable as according to her testimony she was not only fearful of the appellant inflicting harm on her, but was equally fearful of the stigma she and her family would face if the occurrence became a matter of public knowledge---Victim might never have reported the occurrence had she not been impregnated---Victim only revealed her ordeal when her state of pregnancy became physically apparent close to the time of delivery---No presumption could be drawn that the victim falsified the story that the appellant had intercourse with her---Appeal against conviction was dismissed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 376 & 90---Rape---Appreciation of evidence---Consent of victim---Scope---Actus reus and mens rea for the offence of rape established---Accused was charged for committing rape with the complainant---Victim testified that the appellant entered her home under the pretext of asking for water and raped her after instilling fear in her---Victim stated that he was carrying a weapon at that time and raped her in an empty room that was 20 feet away from another room in the house in which her younger siblings were asleep---Rape happened at a time when the victim's parents were away from the house and had taken her younger brother to the hospital---During cross-examination, no inconsistencies in the victim's story could be effectively made out by the defence---In the statement recorded by the appellant in terms of S. 342 of Cr.P.C., he claimed that the victim was blaming him for the act of another person, which act was one of consensual intercourse between the victim and a third person---Said contention stood negated by the DNA report which confirmed the victim's statement that the appellant had intercourse with her---Appellant never took the plea that he did have intercourse with the complainant and that such intercourse was consensual, despite being aware of the DNA report that established that he was the biological father of the baby girl born to the victim---In the event that the appellant had taken the defence that the intercourse was consensual and had proved so through evidence on a balance of probabilities, the onus would then have reverted back to the prosecution, which would need to prove beyond reasonable doubt that such consent had not been given---Appellant, however, made out no such case---Even otherwise, it did not appeal to a prudent mind that an unmarried girl would name an innocent unconnected person to take the fall for a rapist or even for another person where the intercourse was consensual---Victim's testimony sufficiently established mensrea on part of the appellant by making a confidence inspiring testimony that she had not consented to the intercourse which was forced upon her by the appellant---Defence failed to create reasonable doubt either in relation to the actus reus or the mens rea for the crime of rape---Thus, the prosecution proved beyond reasonable doubt that the appellant was guilty of the offence of rape---Section 90 of P.P.C holds in any event that a consent given in consequence of fear falls outside the definition of consent---Section 375 of P.P.C defined rape as a man having sexual intercourse with a woman including inter-alia against her will or without her consent or with her consent when it had been obtained by putting her in fear of death or hurt---Prosecution successfully established that the appellant was guilty of an offense in terms of S. 376 of P.P.C---Thus, the findings of the Trial Court with regard to the conviction of the appellant was confirmed---Appeal against conviction was dismissed, in circumstances. South Australia in Question of Law (No.1 of 1993; (1993) 59 SASR 214; Hazel v. State 221 Md. 464, 157 A.2d 922 (1960); State v. Rusk (289 Md. 230 (1981) 424 A. 2d 720); People v. Evans (85 Misc.2d 1088, alternate citation: 379 N.Y.S.2d 912; State of Uttar Pradesh v. Chhotey Lal (2011) (2) SCC 550; Rao Harnain Singh v. State AIR 1958 P&H 123; State of UP v. Naushad (2013 (16) SCC 651); Yedla Srinivas Rao v. State of A.P. (2006) (11) SCC 615; Sujith v. State of Kerala (Crl. M.C. No. 9538 of 2023); Nawab v. The State PLD 1959 (W.P.) Lah. 38 and Imran v. The State 2016 PCr.LJ 1888 rel. Muhammad Kamran Alam Satti for Appellants. Ch. Ehsan Majeed Gujjar, State Counsel. Ms. Imaan Zainab Mazari-Hazir for Respondent No.2 Muhammad Nawaz, Inspector and Mukhtar Ahmed, ASI. Date of hearing: 20th November, 2024. JUDGMENT BABAR SATTAR, J.---The appellant has impugned judgment dated 06.07.2022 whereby he has been convicted for the offence of rape under section 376 of Pakistan Penal Code, 1860 ("P.P.C.") and has been sentenced to fourteen years rigorous imprisonment along with imposition of fine in the amount of Rs.50,000/-, and in case of default in payment of fine, he has been made liable to serve another six months of simple imprisonment. 2. The victim filed a complaint dated 24.06.2021 (Exh.PA) pursuant to which FIR No.587/2021 dated 24.06.2021 (Ex-PB) was registered. The complainant alleged that the appellant who was the complainant's neighbor forcefully entered her house at a time when her parents were not home and had taken her younger brother to PIMS hospital. He took the victim to an empty room on gun point, raped her, and threatened her not to reveal the incident. The complainant became pregnant and informed her parents about the incident almost eight months after the occurrence. Her parents took a Jirga to the appellant's home to encourage the appellant's family to consider whether the appellant would marry the complainant who was eight months pregnant with the appellant's child. After the appellant refused to do so, the victim filed the complaint. The charge was framed against the appellant on 18.03.2022. He pleaded not guilty and demanded a trial. The prosecution produced eight witnesses. A summary of the testimonies of the witnesses is recorded in the impugned judgment and need not to be recapitulated. After recording the evidence, the prosecution's case was put to the appellant in terms of section 342 of Code of Criminal Procedure, 1898 ("Cr.P.C."). The appellant took the position that the pregnancy had been caused by somebody else and not the appellant, and that the appellant had been falsely framed and had been made a scapegoat with the demand to marry the victim. He chose not to make his own statement under section 340(2) of the Cr.P.C. or produce any evidence in defence. 3. After the appraisal of the evidence, as well as the appellant's statement in terms of section 342 of Cr.P.C. and after considering the arguments of the learned counsels for the parties, the trial Court found that the delay in registering the FIR was not material as an incident of rape was considered a source of shame and dishonor within the society and a delay in reporting such an incident was not unnatural. The trial Court also considered the DNA test report (Exh.PJ), according to which there was a 99.9999996% probability that the appellant was the biological father of the baby birthed by the complainant. In view of such DNA evidence, the trial Court concluded that it had been established beyond reasonable doubt that the appellant had engaged in intercourse with the victim, resulting in her pregnancy and the birth of a baby girl. The trial Court further held that rape was a crime that was committed in private and that there were no witnesses of the same and that it had been held that no corroboration was required to support the statement of a rape victim when there were no other witnesses and the sole statement of the victim was sufficient. The Court, in view of the testimony of the complainant as PW-4, found that her testimony was confidence inspiring and had remained unshaken during the lengthy cross-examination. And as the appellant was a neighbor, there was no question of mistaken identity. In view of the testimony of the victim, corroborated by the DNA report, stating that the baby girl born to the victim was the daughter of the appellant, the trial Court convicted the appellant for an offence under section 376 of the P.P.C. 4. Learned counsel for the appellant submitted that the delay in registering the FIR reflected that no case under section 376 was made out against the appellant. The complainant neither made any hue and cry that would have woken up her siblings who were sleeping in another room in the house, nor did the medical report reflect that there were any marks of violence. These factors suggested that the sexual intercourse was consensual. He then submitted that Exh.PG/D1 reflected the name Mona and not Mobina, which is the name of the complainant, which suggested that the examination carried out on 25.06.2021 was that of another person. He then submitted that there was no proof that a baby was born to the complainant. There was no evidence presented before the Court to confirm the birth of the baby, nor was there any proof that the baby was born at the PIMS hospital. Furthermore, the complainant claimed that a Jirga had visited the appellant's house, but neither the complainant's parents nor any other members of the Jirga were presented in Court. This suggests that prosecution withheld the most important evidence, and the benefit of this omission should go to the appellant. He submitted that the safe custody of the blood samples of the appellant as well as of the baby transmitted for DNA purpose was questionable, and it was only the samples of blood of the appellant that were sent to the Punjab Forensic Science Agency, Lahore ("PFSA"), which is why the blood samples had matched. He finally submitted that there was no recovery of the alleged pistol used by the appellant during the occurrence. He concluded by asserting that the appellant ought not have been convicted by the trial Court on the basis of the solitary statement of the complainant for which there was no corroboration by any other witness. 5. The learned State counsel submitted that the appellant had been positively identified by the complainant in her complaint (Exh.PA) on the basis of which the FIR (Exh.PB) was registered. The complainant was medically examined on the day of registration of the FIR at PIMS hospital, and blood samples were also procured at the same time, when the complainant was eight-month pregnant. The baby was born on 03.07.2021 and the police authorities filed an application for purposes of drawing blood samples from the baby as well as the appellant for purposes of DNA analysis. The applications for such purposes were exhibited before the Court. The safe custody of the samples was established through the testimony of the prosecution witnesses, including two doctors, who confirmed overseeing the drawing of blood samples and handing over the samples to police officials. The samples were then dispatched to PFSA and the DNA report concluded that there was a 99.99% probability that the appellant was the biological father of the baby born to the complainant. The complainant appeared as a witness and provided evidence as PW-4. There was no suggestion made by the defence during cross-examination as to why the appellant had been charged in the event that he was not the culprit. The prosecution successfully proved the charge against the appellant, and the defence failed to create any dent in the prosecution's case or create any doubt the benefit of which could go to the appellant. The judgment convicting the appellant, therefore, suffered from no infirmity. 6. Learned counsel for the complainant submitted that the complainant was a twenty year old uneducated woman who was raped by her neighbor. The complainant was positively identified by the appellant as the perpetrator in the complaint, and there was no question of mistaken identity with the victim herself identifying the offender. She was raped at gun point, at a time when her parents were not at home, and she stayed mum being an unmarried woman fearing for her safety and for the dishonor which the revelation of her rape would bring to herself and her family. The delay in registering the FIR was explained in the complaint. This delay had been further explained by the complainant in her testimony as PW-4. The learned counsel submitted that delay in reporting of a rape case was not fatal as reporting of sexual violence is often influenced by deeply rooted societal notions of shame and honor. The complainant, as PW-4, withstood a lengthy and hostile cross-examination, and her testimony remained consistent and trustworthy, as held by the trial Court. The baby born to the complainant was produced before the doctor at PIMS hospital, as acknowledged by the doctor in her testimony, as PW-6. The doctor testified to overseeing the drawing of the baby's blood sample and handing it over to police authorities. The doctor who appeared as PW-7 testified to drawing the appellant's blood sample and handing it over to the police authorities. PW-2 testified to bringing such blood samples to the Malkhana and PW-8 testified that he kept such samples in the Malkhana in his capacity as Moharrir and dispatching them along with the road certificate handed over to PW-2. The DNA report issued by PFSA was exhibited as Exh.PJ and confirmed that the appellant was the biological father of the baby birthed by the complainant. The DNA report corroborated the account of the complainant and confirmed that the complainant had been impregnated by the appellant, who had denied ever having intercourse with the complainant in his statement recorded in terms of section 342 of Cr.P.C. The appellant had suggested that the child born to the complainant was a product of consensual intercourse with some other person. While the appellant chose not to produce any evidence in his defence, the position he took in his statement, recorded in terms of section 342 of Cr.P.C., reflected that he had misrepresented himself before the Court. She argued that it was settled law that the solitary statement of a victim was sufficient to support a conviction and did not require corroboration. And in cases of rape, it was extremely unlikely that the victim would misidentify the perpetrator or impute the act of sexual violence to an innocent third party. In these circumstances, the trial Court correctly concluded that the appellant was liable for the offence under section 376 of P.P.C., and the judgment was sound. 7. The prosecution's story is simple. The victim, a 20-year-old unmarried and uneducated girl, was at home along with her younger siblings, who were all minors. Her parents had taken one of her younger brothers to the hospital. The appellant, a neighbor of the victim, knocked on the door at approximately 09:00 PM. When she opened the door, he took her into an empty room in the house at gunpoint. This room was approximately 20 to 25 feet away from two other rooms in which her younger siblings were asleep. He had sexual intercourse with her against her will or without her consent. After he was done, he threatened her not to inform anyone else or else she would face harm, and she didn't. She, however, became pregnant and still did not inform anyone. It was only when her pregnancy became apparent to her parents that she informed them about the incident and about who the culprit was. To keep the family's honor intact, the victim's family members went to the appellant's house to see if the appellant and his family would agree to the appellant and victim getting married. The appellant refused. At which point, the victim filed the complaint on the basis of which the appellant was tried. A baby girl was born to the victim on 03.07.2021 approximately nine days after the registration of the FIR. DNA samples from the baby girl and the appellant were procured and subjected to forensic examination. The samples matched and the forensic report concluded that there was a 99.99% probability that the appellant was the biological father of the baby girl. The primary rape evidence produced by the prosecution was the testimony of the victim. This was corroborated by the DNA report confirming that the appellant was the biological father of the child delivered by the victim, proving beyond reasonable doubt that the appellant had intercourse with the victim. It is on this basis that the trial Court came to the conclusion that it had been proven beyond reasonable doubt that the appellant had intercourse with the victim, and in view of the statement of the victim, it had also been proven beyond doubt that such intercourse was without the victim's consent and against her will. 8. The defence did not come up with a counter-version. The defence story begins and ends with blanket denial of any interaction or engagement between the appellant and the victim. The appellant also denied that he was the biological father of the baby delivered by the victim. The appellant's version can be deciphered partly from his statement recorded in terms of section 342 of Cr.P.C., where he asserted that he had been named to cover up the act of another person who engaged in consensual intercourse with the victim. Such other person was, however, not named by the defence, nor was any evidence produced before the Court to suggest that the victim indulged in consensual intercourse with anyone else. The counsel for the appellant made a frail attempt to argue that the DNA sample of the child born to the victim was never drawn and that the DNA report was based on two samples of the blood of the appellant…

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