2023 P Cr. L J 655
[Balochistan]
Before Zaheer- ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ
ABDUL REHMAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 251 of 2022, decided on 21st November, 2022.
Penal Code (XLV of 1860) ---
----S. 376--- Rape---Appreciation of evidence ---Prompt FIR ---Solitary statement---Negative
DNA report ---Effect ---Police party was patrolling in the area where they found complainant
who informed while weeping that she was subjected to rape by three accused and at the spot
pointed out towards them ---Accused persons were arrested at the spot while the third accused
escaped from the place of incident, so the matter was reported with remarkable promptitude
in which the details of the incident were given by prosecutrix in the natural manner and her
testimony was confirmed by the police personnel, who were patrolling the area ---No ill will
or acrimony had been alleged by the accused persons against the police ---Argument that
DNA (Deoxyribonucleic Acid) rep ort did not connect the accused with the commission of
offence was of no substance as number of factors could contribute in a negative finding vis - -
vis matching DNA profile and even slightest interference in handling the samples could alter the result of DNA report ---Solitary statement of victim, if rang true, could be relied upon for
the purpose of conviction--- Appeal was dismissed.
Shahzad alias Shaddu and others v. State 2002 SCMR 1009 ref.
Abdul Ghani v. The State 2022 SCMR 544 and Shakeel and 5 ot hers v. The State
PLD 2010 SC 47 rel.
Jam Saka and Iftikhar Ahmed Langove for Appellants.
Muhammad Naeem Kakar, Additional Prosecutor General for the State.
Date of hearing: 14th September, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The appellants were charged, tried
and subsequently convicted by learned Special Judge, Anti Rape/Sessions Judge, Quetta (hereinafter "the trial Court") and they were sentenced in following terms:
"----The result of above discussion is that the prosecution successfully proved the
charge against accused for sexually assault beyond any reasonable doubt, as such
accused Abdul Rehman son of Muhammad Sadiq and Naseebullah son of Muhammad Luqman are hereby convicted under section 376, P.P.C. and they are sentenced to
suffer Imprisonment for a period of fourteen years each with fine of Rs.100,000/ -
(Rupees One Lac only) each. In default, thereof they have to further undergo S.I. for a period of one year each. Benefit of section 382 -B, Cr.P.C is also extended in favour
of both the accused persons."
SUMMARY OF THE FACTS:
The facts of the case as mentioned in the impugned
judgment are:
"Precise facts of the prosecution case are that on 21.05.2021 complainant Sonia alias Sanam lodged above said FIR with the averments t hat in the month of Ramadan she
had come to Quetta by wagon after quarreling with her parents. She has no permanent accommodation, as such where she finds place sleeps on the road. On the reporting night at about 2.30 a.m., she was present at Mohallah Faqi r-Abad, three boys forcibly
took her at the side of Nala and they all the three committed illegal intercourse/Zina with her turn by turn. The complainant by saving herself from the clutches of said three boys, ran and on the road police vehicle was on patr olling, which was stopped
by her and narrated all the story to them and pointed out the accused persons, while one of their companions escaped from the scene of crime. Hence, this FIR."
INVESTIGATION:
The Investigation of the matter was entrusted to PW -7 Muhammad Saddique, Sub-
Inspector who prepared site plan, recorded the statements of the witnesses, arrested the appellants, got medically examined victim/complainant at Civil Hospital, Quetta and also medically examined the appellants, and through recovery memo obtained the shalwar of
victim and clothes of the appellants which subsequently were handed over to Police Surgeon Dr. Ayesha Faiz, who prepared the samples and thereafter the samples were sent for forensic to Punjab Forensic Science Agency Lahore, produced the victim/complainant to the Court of concerned Magistrate for the purpose of recording her statement under section 164, Cr.P.C, and thereafter shifted the victim to Darulaman, recorded the disclosure of appellants and prepared pointation memo of place of incident. Subsequently, after receiving the FSL report from Punjab Forensic Science Agency Lahore, submitted reports to the Court of competent jurisdiction.
TRIAL:
The trial of the case was committed to the Court of Special Judge Anti Rape/Sessions
Judge, Quetta. The prosecution produced as many as seven (07) witnesses, in order to bring home the charge against the appellants, the gist of material witnesses produced by the prosecution is as follow:
Shujaat Mehmood, Sub -Inspector (PW -1), deposed t hat on eventful night while on
patrol duty, he saw the complainant weeping/crying and further stated that complainant
informed the Police personal that she was raped by three (03) boys and on pointation of victim, Abdul Rehman and Naseebullah (appellants) were apprehended at the spot while
third accused fled from the place of incident and on the statement of complainant the written
report/Murasila was reduced in black in white on the basis whereof FIR was lodged. Dr.
Ayesh Faiz (PW- 2) is a Police Surgeon who produced Medico Legal Certificate of victim as
well as Medical Certificate of appellants which shows that they could perform sexual act.
The most important witness of the case is the victim Mst. Sonia alias Sanum was produced by the prosecution who recor ded her statement as PW- 5 not only identified the appellants in
Court but attributed the offence of rape to the appellants in her Court statement. Waseela Kakar (PW- 6) who is Judicial Magistrate, had recorded statement under section 164, Cr.P.C
of the vict im and had allowed the appellants to cross -examine the victim, she deposed
accordingly. The last witness was (PW -7) Investigating Officer S.I. Muhammad Siddique
who explained different steps of investigation from inception till submission of report under section 173, Cr.P.C, as the appellants did not produce any defense witness nor recorded their
statements on oath, therefore, on conclusion of the trial, appellants were convicted in the terms mentioned above.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANT S AND LEARNED
ADDITIONAL PROSECUTOR GENERAL:
Learned counsel for the appellants contended that the statement of victim is not
reliable as number of contradictions are present in the statement of victim compare to the statements of other witnesses produced by the prosecution. Learned counsel further
submitted that the medical samples of the appellants and victim which were sent by the
Investigating Officer to Punjab Forensic Science Agency Lahore have not confirmed that the appellants have committed the all eged offence, further submitted that since the Forensic
DNA and Serology Analysis Report has not connected the appellants with the alleged samples obtained from the (Shalwar) of victim, therefore, the appellants are entitled for benefit of doubt. While concluding his arguments, learned counsel submitted that the learned trial Court on the basis of presumption has convicted the appellants and the evidence produced by the prosecution lacked independent corroboration from any source.
Conversely, while rebutting the arguments of counsel for the appellants, learned
Additional Prosecutor General submitted that prosecution had proven the case against the appellants to the hilt, the matter was reported without any delay and the appellants were caught red -handed at the spot, therefore, the appellants do not deserve any leniency as they
have committed the horrendous act of sabotaging the honour of the complainant.
We have heard the arguments from both sides and have perused the record
thoroughly.
DETERMINATION:
The incident took place in the precincts of Civil Line Police Station, Quetta.
According to prosecution case, the S.I. Shujaat Mehmood along with other police personal
were patrolling the area when they found complainant Sonia alias Sanum who informed while weeping that she was subjected to rape by three (03) accused and at the spot pointed
out towards them. Appellants were arrested at the spot while the third accused escaped from the place of incident, so the matter was reported with remarkable promptit ude in which the
details of the incident were given by prosecutrix in the natural manner and her testimony was
confirmed by the Police personal who were patrolling the area. The S.I. Shujaat Mehmood as
(PW -1) on oath before the trial Court gave the details of the incident which took place in the
night of 21.05.2021 and fully corroborated the statement of the victim. Absolutely, no ill will or acrimony has been alleged by the appellants against said witness. The version of the victim is also supported by Medico Legal Certificate. The opinion of (PW -2) Dr. Ayesha
Faiz is relevant. For the facility of reference same is reproduced as under:
"Opinion: on P/V Examination no hymen fresh sign symptoms of sexual assault observed on examination with p/v bleeding and pain sexual assault has been performed upon her."
The learned counsel has stressed upon the fact that samples which were sent for Forensic DNA and Serology Analysis Report did not connect the appellants with the commission of alleged offences as the report s are negative to their extent.
We find no substance in this argument, as number of factors can contribute in a
negative findings vis -a-vis matching DNA Profile and even a slightest interference in
handling the samples may alter the result of Forensic DNA and Serology Analysis Report. In
this regard reliance is being placed upon the case titled as "Abdul Ghani v. The State". The relevant excerpt is reproduced herein below:
"The child being in tender nubility is clinically established to have been violated, a circumstance that required no further forensic corroboration. Negative reports do not reflect upon the veracity of prosecution case for reasons more than one. D.N.A. profile generation though a most meticulous method with unfailing accuracy, nonetheles s, requires an elaborate arrangement about storage and transportation of
samples, a facility seldom available. Even a slightest interference with the integrity of samples may alter the results of an analysis and, thus, the fate of prosecution case cannot be pinned down to the forensic findings alone, otherwise merely presenting a corroborative support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most unimpeachable. Penetration is sufficient to constitute the offence and there are many factors, physical as well as psychological,
that may intervene during a carnal assault, impeding complete consummation of carnal assault. Such subsequent failures do not redeem the enormity of initial assault, a case otherwis e established to the hilt. Given the violence inflicted upon the child,
enhancement of appellant's sentence by the High Court, his juvenility notwithstanding, nonetheless, cannot be viewed as excessive or harsh. Petition as well as appeal fail. Dismissed."
Even otherwise in case, there is any omission on the part of the Investigating Officer
in preserving the samples in accordance with the guideline and its onward transmission to the
FSL in accordance with the recognized protocols, the victim is not respon sible for said
omissions. Reliance in this regard is being placed upon the case titled as "Shakeel and 5
others v. The State."
"9. We have also adverted to the question that no semen grouping was made and therefore, it is difficult to prove that by whom Zina -bil-Jabr was committed. It is
worth mentioning that semen grouping is not essential in such like cases and at the best it can be considered as lapse on the part of Investigating Officer and the prosecutrix cannot be held responsible for it. It is well-established by now that
"omission of scientific test of semen status and grouping of sperms is neglect on the part of prosecution which cannot materially affect the other evidence." In this regard we are fortified by the dictum as laid down in case t itled Haji Ahmad v. State (1975
SCMR 69) and Shahid Malik v. State (1984 SCMR 908)."
We have examined the testimony of prosecution witnesses, despite lengthy cross -
examination nothing favorable to appellants or against the complainant has come on record. We find futile exercise was made by defense counsel during cross -examination of victim by
alleging that there was dispute of money between appellant Abdul Rehman and uncle of prosecutrix, neither the name of uncle of victim was mentioned during the cross -examination
nor any details of the alleged transaction of amount with reference to date or year was given, so it seems that the appellants had absolutely no defense. Though it is settled principle of law, that accused cannot be burdened due to weak defense or lack of defense and prosecution has to establish case, on its own footing, independently but the conduct of the appellants even before the trial Court while cross -examining the victim could not escape our intention.
We could not find any reason to disbelieve the statement of victim Sonia alias Sanum, she
was subjected to forcible rape and the matter was reported at the spot to the police party who were patrolling the area and we find her statement while lodging FIR and subsequently her statement under section 164, Cr.P.C and eventually her statement before trial Court on oath;
all statements are in consonance with each other and no material discrepancy was found, all the statements are similar in nature and material facts have been narrated in nat ural way,
therefore, we are not convinced by the arguments of learned counsel for the appellants that the statement of victim is not reliable, even in such like cases, the solitary statement of victim if rings true can be relied upon for the purpose of conviction. Reliance in this regard is being placed upon the case titled as "Shahzad alias Shaddu and others v. State."
In the wake of above deliberations and after thoroughly evaluating the evidence, we
do not find any merit in this appeal, same is hereby d ismissed.
SA/36/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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