P L D 2026 Balochistan 16
Before Muhammad Aamir Nawaz Rana and Gul Hassan Tareen, JJ MUHAMMAD WASEEM ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. (K) 05 of 2024, decided on 23rd July, 2025.
Penal Code (XLV of 1860) ---
----S. 376---Qanun -e-Shahadat (10 of 1984), Art. 19---Rape of child ---Appreciation of evidence -
--Doctrine of res gestae ---Hearsay, exception to ---Fact connected with fact in issue---Accused
was convicted for committing rape with a minor girl of four years and was sentenced to
imprisonment for life ---Held: Doctrine of ‘res gastae’ has been defined under Art. 19 of Qanun-
e-Shahadat, 1984 which is an exception to hearsay ---Res gastae means matter incidental to the
main fact explanatory of it ---Requirement of res gastae is that the statement must have been
made contemporaneously with the act or immediately after it and not at such an interval of time
as to make it a narrative of past events ---Acts which constitute or explain fact in issue are
admissible as forming part of res gestea ---Witness saw the victim weeping and followed her and
asked the reason for weeping; the victim told him that she had been sexually abused upon by the accused ---Such statement was admissible in evidence---Victim told her parents that she was
feeling abdominal pain because she was subjected to rape by accused ---Victim had disclosed the
incident to her parents on the same date, therefore, statements of her parents were admissible under Art. 19 of Qanun- e-Shahadat, 1984---Trial Court rightly relied upon both the witnesses as
their statements were corroborated by that of the victim---High Court declined to interfere in
conviction and sentence awarded to accused as prosecution had established its case beyond
shadow of doubt and Trial Court had already taken a lenient view,as normal penalty under S. 376, P.P.C. was death--- Appeal was dismissed, in circumstances.
Imran v. The State 2024 PCr.LJ 1048; Ghulam Mustafa v. The State 2024 MLD 1073;
Amjad Ali v. The State 2022 PCr.LJ Note 17; Sumera v. State 2024 PCr.LJ 1783; Mst. Yasmeen v. Dr. Fahad Ahmed 2024 PCr.LJ 1881; Muhammad Hanif v. State 2003 SCMR 1237; Irfan Ali Sher v. State PLD 2020 SC 295 and Abdul Ghani v. State 2022 SCMR 544 ref.
Muhammad Ayub Sherani for Appellant.
Syed Kamal Hussain, State Counsel for Respondent/State.
Date of hearing: 15 July, 2025.
JUDGMENT
GUL HASSAN TAREEN, J. ---Through this judgment, we intend to decide Criminal
Appeal No. (K) 05/2024 (Muhammad Waseem v. The State) preferred from the judgment of the
learned Additional Sessions Judge -II, Hub ('Trial Court'), in case FIR No.67 dated 27 August
2023 under sections 376- A and 376, The Pakistan Penal Code, 1860 ('P.P.C'), registered at P.S.
Sakran, District Hub for committing rape with a child, Maryam ('the victim'), whereby the appellant was convicted under section 376- A, the P.P.C and sentenced to suffer imprisonment for
life with fine of Rs.25,000/ -, in default to pay, to further undergo 04 months (S.I). Benefit of
section 382- B, the Code of Criminal Procedure, 1898 ('the Code') was extended.
2. The prosecution case as unfolded in the report (Ex.P/1- A), lodged on the oral statement
of complainant, Abdul Wahid (PW -1) is that; on 25 August 2023 at 03:20 p.m, his neighbor,
Muhammad Waseem had committed sexual intercourse with his daughter namely Maryam Bibi, four years old. He informed his respectables about the incident who told that they would
compromise, however, he did not accept the decision. After medical examination at Jam Ghulam
Qadir Hospital through a Lady Medical Officer, complainant took his daughter to the police station for registration of FIR.
3. On said report, FIR 67 dated 27 August 2023 (Ex.P/8- A), under the aforementioned
offences was registered against the appellant.
4. Ghulam Qadir was entrusted investigation under the supervision of District
Superintendent Police. He took the victim to the Civil Hospital, Hub for medical examination;
sketched a rough site plan (EX.P/8- B); recorded statements of witnesses, took the appellant to
the Civil Hospital, Hub for medical examination; procured age certificate of the appellant from the doctor. I.O recorded disclosure of the appellant and sent the samples for chemical analysis.
After completion of investigation, I.O prepared crime report and sent it to the Trial Court.
5. On 20 October 2023, appellant was formally charge sheeted to which he pleaded 'not
guilty' and claimed trial.
6. To substantiate the charge, prosecution examined as many as eight witnesses besides
relying upon the reports of Forensic Analyst. Ocular account was furnished by complainant (PW -
1), the victim (PW -2) and Karguli (PW -3). Lady Medical Officer appeared as PW- 4 and tendered
in evidence the MLC (Ex.P/4- A). Medical Officer, Jam Ghulam Qadir Hospital, Hub appeared as
PW-5 and tendered in evidence the MLC of the appellant (Ex.P/5- A). PW -6 produced seizure
memos of the samples as Ex.P/6- A and Ex.P/6- B. PW -7 produced the disclosure memo as
Ex.P/7- A. Investigation Officer (PW -8) tendered in evidence the FIR, rough sketched site plan,
incomplete challan, DNA report, murasila, age certificate, complete challan and murasila as
Ex.P/8- A, Ex.P/8- B, Ex.P/8- C, Ex.P/8- D, Ex.P/8- E, Ex.P/8- F, Ex.P/8- G and Ex.P/8- H,
respectively. On completion of the prosecution evidence, appellant was examined under section 342, the Code. He opted to appear as witness in his defence in terms of section 340(2), the Code and to call courts' record. Muhammad Aslam, bailiff, Civil Court, Hub tendered in evidence copy of plaint (Ex.D/1). Tahir Hussain, junior clerk, Judicial Magistrate, Gaddani tendered complaint under sections 107 and 150, the Code and notice under section 112, the Code as Ex.D/2 and Ex.D/2- 1, respectively. On
termination of trial, the appellant was held guilty, and therefore, convicted and sentenced in the above terms.
7. Mr. Muhammad Ayub Sherani, learned counsel for the appellant submitted following
points: --
i) investigation was not carried in accordance with the mandatory procedure prescribed by
sections 9(2)(ii), 9(6) and section 14, the Anti Rape (Investigation and Trial) Act, 2021 ('Act') and Rules 3(g) and 3(i), the Anti Rape (Investigation) Rules, 2022.
ii) FIR was registered by the father and not by the victim which was a material defect;
iii) victim deposed that she did inform her father on the date of occurrence, yet the father did
not report the incident to the police, thus, delay caused in lodgment of FIR was fatal;
iv) bloodstained articles were not produced before the Trial Court;
v) police person named in the MLC was not examined;
vi) F.S.L report was negative and the samples were sent with unexplained delay of two
months and thirteen days;
vii) safe custody and transmission of samples were compromised; and
viii) institution of civil suit was motive for false implication of the appellant;
Learned counsel placed reliance on the following case laws: -
Imran v. The State (2024 PCr.LJ 1048)
Ghulam Mustafa v. The State (2024 MLD 1073)
Amjad Ali v. The State (2022 PCr.LJ Note 17).
8. Syed Kamal Hussain, learned State counsel submitted following points: -
i) delay in lodging FIR was explained in the FIR;
ii) despite cross -examination, the victim could not be shattered; and
iii) victim's deposition was corroborated by MLC;
9. We have heard both parties, perused the record and gone through the provision of law
referred to and the case laws relied upon.
10. Appellant's learned counsel submitted that the alleged act of sexual abuse fell within the
preview of the Act and the rules framed thereunder and for this reason, the accusation should
have been investigated by Special Sexual Offences Investigation Unit ('SSOIU') under section 9, the Act, whereas in this case individual police officer had investigated the case, who was not competent to investigate independently as a single officer. Thus, defect in the investigation was not curable.
The Act is a remedial social statute which favours a purposive interpretation and is to be
interpreted liberally. Remedial social enactment is an enactment which seeks to put right a social wrong and provides mechanism to achieve a particular social result. The object of Act deals with the rape and sexual abuse crimes mentioned in the Schedules I and II, the Act committed against women and children. Court must interpret the Act liberally and purposively and should adopt the interpretation that advances its object rather than defeats the purpose. Though, the provisions of section 9, the Act have been held mandatory in the case of Sumera v. State, published in (2024
PCr.LJ 1783), however, section 9 at the same time does not prevent an individual officer to
undertake the investigation of a crime committed against the victim's sexuality. Reliance is
placed on the case of Mst. Yasmeen v. Dr. Fahad Ahmed, published in (2024 PCr.LJ 1881).
Relevant in the case law reads as: -
'16. ..... Two interpretations of section 9 of the Anti -Rape Act are possible: first, that the
SSOIU as a unit should handle the investigation of Scheduled Offences collectively, and second,
that individual police officers who are members of the SSOIU in the relevant district may conduct the investigations independently.
17. The first interpretation, which advocates for a collaborative approach involving
multiple unit members in each investigation, could present practical challenges. Expecting the
entire unit to handle every case could lead to inefficiencies and delays, undermining the Act's objective of expediting investigations and trials. On the other hand, the second interpretation, which permits individual officers within the unit to undertake the investigations autonomously, offers a more flexible and potentially more efficient use of personnel and resources. Considering these factors, the second approach is more effective, pragmatic, and likely better suited to accomplishing the Act's objectives. The success of the Act hinges on striking the right balance between the need for specialized units and the practical realities of resource allocation and case management.'
11. The Act does not render the investigation illegal, where omission to follow section 9 is
noticed. Appellant's learned counsel could not outline that omission to follow section 9 has caused injustice or has prejudiced the appellant. Where prosecution succeeded to establish its case beyond shadow of reasonable doubt then investigation by an incompetent officer would not vitiate the trial and an irregularity during the course of investigation can be cured under section 537, the Code if it has caused no prejudice to the accused. Question of interpretation of sections 21 and 23, the Control of Narcotic Substances Act, 1997, came under consideration before the Supreme Court in case of Muhammad Hanif v. State published in (2003 SCMR 1237). It was argued that since investigation was conducted by an officer who was below the rank of Sub-Inspector in violation of the mandatory provisions of sections 21 and 22, thus, trial being void ab into, no conviction could have been awarded. The Supreme Court held as:
'...... after having careful scrutiny of the entire record, we are of the view that prosecution
has established the factum of recovery beyond shadow of doubt and thus proved the accusation to the hilt. We are not persuaded to agree with learned Advocate Supreme Court on behalf of petitioner, that since the raid was conducted and investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in sections 21 and 22 of the Control of Narcotic Substances Act, 1997, the whole trial has vitiated for the simple reason that arrest, seizure and investigation by an incompetent police officer would not vitiate the trial and at
the best such an irregularity can be cured under section 537, Cr.P. C. as it has caused no
prejudice to the petitioner...'.
Section 9 (4), the Act prescribes that, "in case the complainant in relation to an offence
under scheduled- II expresses dissatisfaction which is based on reasonable grounds, the
investigation shall be transferred to the district head of investigation of the police". It was for the
victim or the complainant to ask for investigation in accordance with the provisions of section 9, the Act and not the appellant. Appellant's learned counsel could not highlight that investigation by an individual police officer had caused prejudice to the appellant. Thus, appellant's learned counsel contention is repelled.
12. Appellant's learned counsel submitted that complainant had come to know about the
alleged offence on 25 August 2023, however, he reported the incident to the police on 27 August
2023. Thus, unexplained delay caused in reporting the offence was outcome of deliberation. Complainant, in his report dated 27 August 2023 reported that on 25 August 2023 at 3:20 p.m., appellant committed rape with the victim and he had taken the matter to his elders who assured that they would compromise. Complainant explained the delay caused in reporting the incident that he had first taken the matter to his elders. Thus, delay caused in registration of the FIR was explained. The victim was a four years old child, therefore, she could not report the incident to the police, therefore, delay caused in lodging FIR was not fatal to the prosecution case. In the case of Irfan Ali Sher v. State, published in (PLD 2020 Supreme Court 295), the Supreme Court has held as:
'….. in rape cases victims and/or their families may be reluctant to come forward to
promptly report the crime because of the trauma that has been suffered and they may have a
perception of shame or dishonor in having the victim invasively examined by a doctor. The delay in reporting a sexual assault to the police is therefore, not very material as has held by this Court...'
Thus, appellant's learned counsel contention is without legal substance.
13. The victim appeared as PW- 3. Her examination in chief and relevant in her cross -
examination are reproduced herein under:
'Waseem had taken me inside the house, had taken off my clothes and bolted the door of
the room from inside. He had put cloth into my mouth when I raised hue and cry, he slapped me.
I felt abdominal pain and I was brought by mother for reporting. I identify accused Waseem present in Court, who I know.
Cross -examination.
'i. It is incorrect that my mother and father had told me to nominate Waseem.
ii. Said house is situated behind our house, which is not far away.
iii. Said house was of wood and no one was there in the said house, save Waseem.
iv. Question: When you had communicated the said incident to your mother or father?
Answer: When Waseem took off my trousers and penetrated his part of urine into the part
of my urine, whereafter, I had informed my mother. v. It is incorrect that Waseem did not take me into the house.
vi. It is incorrect that I deposed falsely to implicate Waseem at the stance of my parents.'
14. At the time of deposition victim was of tender age. She was just four years old, however,
she was confident and she furnished details and even minor details of the incident in clear words.
She had identified the accused present in Court and in her cross -examination, stated that
appellant had penetrated his penis into her vagina. Before examination in chief, the learned Trial Judge had conducted maturity test of the victim and asked some basic questions regarding her age, education and place of residence . The learned Trial Judge observed that the victim is
competent to testify as she has knowledge about day to day affairs of life and environment. After
his judicial satisfaction and recording such satisfaction in a separate note, the learned Trial Judge
had taken down the deposition of the victim. Appellant was relative of the victim's family, therefore, victim had rightly identified him before the Court and nominated him for commission
of the offence of rape. Victim had no motive to falsely rope the appellant in a heinous offence.
Victim was also corroborated by her parents, who appeared as PW -1 and PW -3. Though, both
had not witnessed the incident, however, their testimonies were admissible under Article 19, the Qanun- e-Shahadat Order, 1984, 'the QSO', which reads as, "facts which though not in issue are
so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places". Article 19 defines 'res
gestae' which is an exception to the 'hearsay'. Res gestae means, matter incidental to the main
fact and explanatory of it. The requirement of res gestae is that the statement must have been made contemporaneously with the act or immediately after it and not at such an interval of time as to make it a narrative of past events. Acts which constitute or explain the fact in issue is admissible as forming part of res gestea. Therefore, where a witness saw a victim and observed that he was weeping. He followed him immediately and asked him the reason for weeping and
was told by him that he had been sexual abused upon by the accused, the statement is admissible
in evidence. In this case, the victim had told her parents that, 'she is feeling abdominal pain'
because she was subjected to rape by the appellant. Victim had disclosed the incident to her
parents on the same date, therefore, statements of her parents were admissible under Article 19, the QSO. Both corroborated the testimony of the victim and for this reason, the learned Trial Judge has rightly relied upon their testimonies.
15. Apart from afore discussed evidence, Lady Medical Officer, Jam Ghulam Qadir Hospital,
Hub had conducted medico legal examination of the victim. She appeared as PW -4 and deposed
that on 27 August 2023, around 3:30 p.m., she conducted medico legal examination of the victim
and found signs of inflammations on genital area. She had taken vaginal swab and handed it over to the I.O. for chemical examination. She deposed that hymen of the victim was mildly distorted. She produced in evidence MLC as (Ex.P/4). Relevant in her cross -examination is reproduced
hereunder: --
'It is correct to suggest that a mildly distortion in hymen can cause due to improper
movements, voluntarily stated that in such circumstances there would be no sign of inflammation thereon.
It is correct to suggest that forceful intercourse would cause hymen hurt and bleeding,
voluntarily stated that since as per parents' statements, it was a three days back incident bleeding does not occur for such a long period.'
16. The (Ex.P/4) supported the statements of victim, PW -1 and PW -3. Rape as defined in
section 375, the P.P.C means and includes, when a person penetrates his penis, to any extent, into
the vagina of another person. Explanation 1 to section 375, 'vagina shall also include labia majora'. There is no concept of consent to rape when person subjected to rape is under sixteen years of age in view of section 375 (d) explanation Sixth. Victim was under sixteen years of age and the appellant penetrates his penis into her vagina, which also includes 'labia majora'. Thus, appellant was accused of the commission of offence of rape as defined in section 375, which is punishable under section 376, the P.P.C. (Though, the learned Trial Judge has convicted the appellant under section 376- A, the P.P.C.), which seems a clerical error.
17. Appellant's learned counsel also stressed that forensic report was negative, which casted a
shadow on the reliability of prosecution case. Same question came under consideration in the case of Abdul Ghani v. State, published in (2022 SCMR 544). Relevant in the case law reads as, '... The child being in tender nobility 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, nonetheless, 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 corroborated support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most unimpeachable. Penetration is sufficient to constitute the offence....).
18. Appellant had not attributed motive to the complainant for his false implication in this
case. Even mere statement of victim was sufficient to constitute offence of rape. Victim was extensively cross -examined, however, nothing favourable to the accused emerged. The lady
doctor confirmed the accuracy of the MLC, was cross -examined and she stood by the MLC,
issued by her. There was no reason for the complainant and the victim to falsely implicate their
own relative for the heinous crime nor was any question put to the complainant in this regard.
For the foregoing reasons, the appellant had committed rape of the victim and subjected
her to sexual intercourse, therefore, he was rightly penalized for imprisonment for life. Normal penalty under section 376, the P.P.C. is death, however, the Trial Court has taken lenient view. Prosecution had proved its case beyond shadow of reasonable doubt, therefore, the impugned judgment does not suffer from any legal and factual error. Case laws cited by the appellant's learned counsel are distinguishable. However, section 376- A, P.P.C. mentioned at Para 29 of the
impugned judgment is substituted by section 376, P.P.C. Appellant was convicted under section 376 P.P.C. Figure 376- A, mentioned at Para 29 of the impugned judgment is result of clerical
error.
Consequently, we dismissed this appeal and uphold the impugned judgment.
MH/195/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,
let us know.