PLJ 2022 Cr.C. 1241
"Res-gestae"--
----Article 19 of Qanun-e-Shahadat Order, 1984--(PW-5) may not be a direct witness of occurrence, but as shall be seen from her statement, victim disclosed to her entire details just on her reaching back at home, therefore, by all intents and purposes statement of PW-5 has relevance and can be considered as "res gestae" evidence per force of Article 19 of Qanun-e-Shahadat Order, 1984--Medical evidence was also a part of res gestae evidence in this case under' principle of "Contemporaneous Physical Condition" which was first observed by mother of victim and then by doctor whose statement is admissible with respect to injury and not for identifying accused. [Pp. 1248, 1250 & 1251] B & D
PLD 2020 Supreme Court 146.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 476--Conviction and sentence--Challenge to--Charge against appellant was rape--If prosecution had any intention to book appellant falsely, medical record could have been maneuvered to bring same in consonance with date of occurrence or otherwise date of occurrence could have shuffled to correspond with medical record, but here in this case apparently everything was kept in natural flow and no such attempt was made nor even it has been suggested by defence either--As per evidence victim highlighted events immediately to her mother when she observed bleeding while attending a urinating call, and that too apparently in a response to asking by her mother--It was by all purposes and intents a spontaneous declaration which rules out concoction or deliberation--The evidence of PW-5 for spontaneous declaration made to her by victim about rape and injury is corroborated by doctor PW-3, before whom victim made such statement--This composition has a support to prosecution case with respect to injury which would legally and lawfully be read against accused/appellant in this case so as to form an opinion about truth of circumstance so described--Hymen was freshly torn; reason for objection, counsel unfolded, that medical examination was conducted after three days of occurrence and hymen in children is very deep and in such an haphazard or chance occurrence it is not believable that penal insertion could be possible up to vaginal canal attracting very requirement of penetration; therefore, it could at most be regarded as an attempt to commit rape; he stressed that showing inflated injuries with malafide intention create doubt in prosecution story which entitles accused to be acquitted--Above observations tally with findings of doctor, therefore, full penetration is not necessary, a laceration 1 x 1 cm reddish in colour on right labial fold was sufficient to attract offence of rape on touch stone of penetration--For an alleged rape of a minor girl aged eight years, on examination of victim after five days, medical officer found an abrasion on medial side of labia majora and redness around labia minora with white discharge but hymen was intact and was admitting tip of little finger and in view of absence of signs of full penetration, medical officer opined that there was an attempt to rape--Under circumstance, it was a case of complete rape and not an attempted rape e as alleged by defence--Detailed medical examination in children is also a complex process; therefore, methods which usually applied by doctors and advice in this respect--It was in testimony of PW-1, complainant that victim was in school for about a month before occurrence who was well aware to accused/appellant being employee of that school and man who succeeded to come so close to her body, notching and ravishing her could not expected to be forgotten by victim, for which a formal identification parade is not necessary--The veracity of PFSA report has also invited attention of this Court; it has minutely been examined, PFSA observed one vaginal swab (item No. 1) as stained with semen yet no spermatozoa were found which resulted in DNA profile obtained as partial and inconclusive--Absence of sperms does not mean that rape has not been committed as observed by Forensic Scientist--This hopeless attempt and explanation raise serious question about priority of examination as to regard it a routine slackness or deliberate jumps--Prosecution must attend to these aspects of matter in every case; if feels any doubt, should immediately resort to calling concerned expert as witness before Court for explanation or apply to Court under provisions of Punjab Forensic Science Agency Act, 2007 for clarification of report.
[Pp. 1248, 1250, 1251, 1252, 1253, 1254, 1255, 1257 & 1258] A, C, E, F, G, H, I, K, N & O
1992 SCR (2) 921, 1992 SCC(3) 204, Simpson Forensic Medicine (Tenth Edition) 1977 QB 224, 2019 SCMR 956.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 375--Defence though keeping appellant aside threw a hint of consented act by someone else--Factor of consent is immaterial when victim is below age of consent as mentioned in Section 375 of, PPC--Simpson regarded that such sexual intercourse is always 'unlawful' and may be viewed as constructive rape', even if girl appears to have given consent--Defence has also raised objection that nobody has heard cries/voices or shrieks/screams in school nor observed victim sobbing after act which raises suspicion about alleged rape--Immediate control over victim body by pressing her mouth took away senses immediately and fearful catch hardly gave any time to respond when victim in age was unable to comprehend what has been done to her; in such situation narrating story to someone under a state of fear is not expected--The meaning of force in relation to rape need not necessarily indicate physical restraint by man, though this is most common; even fear of such violence is sufficient for an act of rape to succeed--Defence has nothing substantial in hand to dislodge prosecution case [P. 1254] J
Identification and Recognition--
----Difference--There is a difference between identification and recognition; to acknowledge acquaintance with or perceive someone previously known are forms of recognition--It is common understanding and acknowledgement that we know many people in life by their profession or act they perform around us at work place or in neighbourhood but we do not know their names or their parentage, however, they are well canvassed in our mind for whose identification a formal parade is unnecessary. [P. 1256] L
1977 QB 224.
'Rape victim'--
----Victim in this case knew accused/appellant and could well recognized him at time of commission of offence in a broad day light, in washroom of a school and act of accused ranges from episode of committing rape, pressing her mouth, washing himself, victim and finally floor; ample time was available to get clicks and printing impression of his image to little innocent mind of victim which will not erase from her mind even after years to pass; there was no question of misidentification of accused/appellant in this case. [P. 1257] M
Rape victim--
----That rape victim stands on a high pedestal than an injured witness, because an r injured witness gets injury on physical form while rape victim suffers psychologically and emotionally and single testimony is sufficient to uphold conviction--In present case single testimony of victim being a child witness of six years of age stands supported with statement of PW-1 complainant, her father and PW-5 her mother as res gestae evidence whereas it is corroborated with medical evidence put forth by doctor PW-3 in addition to other evidence on record. [P. 1259] P
PLD 2021 SC 550, 1969 PCr.LJ 1154, 2002 SCMR 1247.
Mr. Mehram Ali Bali and Mr. Muhammad Arif Rana, Advocates for Appellant.
Mr. Naveed Umar Bhatti, Deputy Prosecutor General for State.
Rana Shahid Mahmood and Rana Adeel Anjum, Advocates for Complainant.
Date of hearing: 23.12.2021.
PLJ 2022 Cr.C. 1241
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
KAMRAN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 38038 & 30076 & Crl. Rev. No. 30079 of 2019, heard on 23.12.2021.
Judgment
Kamran of 33 years, a security guard at FG School Gujranwala Cantt, was indicted for rape with a six years' student Samia; the part was abetted by a co-employee Barkat Ali; both faced prosecution in case FIR No. 229 dated 15.05.2017 under Section 376, PPC, P/S Cantt, Gujranwala; learned trial Court vide judgment dated 15.04.2019, acquitted Barkat Ali (accused) of the charge under Section 109, PPC, whereas, Kamran (appellant) was convicted and sentenced as under;
"Imprisonment for life under Section 376(3), PPC with fine of Rs. 25000/-, in default to undergo six months' SI. In addition, Payment of compensation of Rs. 100, 000/-to the victim under Section 544-A (1), Cr.P.C., and in default to further undergo six months' imprisonment. Benefit of Section 382-B, Cr.P.C. was extended".
Appeal by Kamran (appellant) against his conviction and sentence; Criminal Revision for enhancement of his sentence, whereas Criminal Appeal against acquittal of Barkat Ali have been taken up for decision by this single judgment.
2. Briefly a little doll in sixth year of her blossom was quite happy to find her in a school for education; after about a month of admission, her image in an evil eye roasted the lust one day, turned a human into a Satan who grabbed the opportunity to catch her prey on 12.05.2017 at about 10.30 a.m. when she was in the washroom of FG School No. 5, Cantt Gujranwala; the sex monger put him into action, unchasten the little girl, modesty was intervened, which confounded her and she in a state of shock could not comprehend the situation except a resounding traumatic shriek which too was restricted by pressing her mouth, demon continued till she started bleeding, crime was reported to the police with a delay of three days on 15.05.2017 by her father Syed Suleman Shah PW-1, Sobedar in Unit No. 11-FF Army Cantt, Gujranwala, with the assertion that he dropped his daughter Mst. Samia student of Class One, at school on 12.05.2017 around 7.30 a.m. and during interval, at 10.30 a.m. Chowkidar Kamran (convict/appellant) and Barkat Ali (since acquitted) took her to the washroom where Kamran subjected her to rape. On her home back, she complained of bleeding and informed her mother about the demonian act, she was taken to CMH Hospital; lady doctor informed them about subjected rape.
3. The investigation of this case was conducted by Amanat Ali Sub-Inspector (PW-9) who visited the place of occurrence, recorded statements of witnesses including the victim, prepared rough site plan (Ex.PL), sent the victim for medical examination through Humara Bashir 626/LC, who later handed over him two sealed parcels of envelops, two sealed phials, clothes of victim. On 16.05.2017 Faryad Hussain 27-MP handed over him two Cantt Passes (P.6 & P.7) and two mobile phones (P.8 & P.9). On 17.05.2017, he arrested accused Kamran and Barkat Ali, interrogated and produced them before the Area Magistrate for their physical remand, recovered clothes on their lead. On the same day Major Abdul Qadeer handed over to him the swabs of victim Samia, one blood sample, one urine sample, three vaginal swabs, three anal swabs and three small plastic phials; samples were sent to PFSA for analysis, later received the report. After completion of investigation, he submitted report under Section 173, Cr.P.C., the accused were charge sheeted to which they pleaded not guilty, whereupon, the prosecution examined Syed Suleman Shah Complainant (PW-1), Mst. Samia Bibi (victim) PW-2, Dr. Fareeha Akram Malik (PW-3) for medical examination of victim, Dr. Ahmad Sikandar (PW-4) as witness to potency test of both the accused, Syeda Aisha Bibi (PW-5) mother of the victim, Humaira Bashir 626/LC (PW-6) who had taken the victim for medical examination and then produced her clothes, etc. to the Investigating Officer, Abdul Qadeer Mazari (PW-7) who deposed about departmental inquiry and the medical examination of the victim; Amanat Ali SI (PW-9) Investigating Officer. On close of prosecution case the accused when examined under Section 342, Cr.P.C., though did not deny the occurrence yet stated that it was committed by someone else and they being civilian were booked in this case in order to save the real culprits; however neither produced any defence nor opted to appear in the witness box as required by Section 340(2), Cr.P.C., ultimately, the learned trial Court announced the verdict.
4. The learned counsel for the accused/appellant argued that totally a false case was set up against him; none had seen the occurrence; no test identification parade was held, there was inordinate delay in reporting the matter to the police; testimony of witnesses is inconsistent and contradicted each other and he being a civilian was made a scapegoat; Medical evidence and PFSA report negate the act of rape.
5. Conversely the learned Deputy Prosecutor General opposed the above submissions by contending that in a case like the instant one, the statement of the victim alone is sufficient to record conviction, whereas, here in this case the statement of the victim is corroborated by so many other factors including the medical evidence and that no one would put the modesty of his/her daughter at stake to level such a serious allegation and then would also allow substitution of real culprit, as has been urged by learned counsel for the accused/appellant; delay per se in reporting the matter is not fatal, prosecution case has been placed before the Court in a natural flow as the facts developed; no manipulation or concoction has been attempted. He has placed reliance on "Atif Zareef and others versus The State' (PLD 2021 SC 550) and "Irfan Ali Sher versus The State" (PLD 2020 SC 295). Learned counsel for the complainant relied upon the argument of learned DPG; no serious contest was made for enhancement of sentence or conviction of acquitted co-accused.
6. Proponents were heard at length; evidence was read, perused and examined along with the relevant record with able assistance of learned counsel for the parties.
7. It has been observed, rather it is an admitted position that Mst. Samia Bibi (PW-2) is aged six years and the learned trial Court applied "Rationality Test", prior to commencing her examination-in-chief, by putting certain questions to her and then concluded that she was competent enough to get her statement recorded and thereafter, her statement was recorded, which is reproduced here in verbatim:
"Stated that I study in FG School No. 5 Cantt, Gujranwala. On 12.05.2017, I went to washroom after taking pass from my teacher where the accused Kamran and Barkat were sitting outside the washroom. The accused Kamran came into the washroom whereas the accused Barkat was standing outside the washroom. The accused Kamran removed his clothes as well as mine and committed wrong with me (غلط کام کیا). The accused Kamran alias (sic) closed my mouth with his hand which also caused injury on my cheek. Thereafter, bleeding started and accused Kamran washed himself, me and the floor also. Thereafter, I went to classroom. After the school time, my father came to pick me. When I made the urine call at home, there was bleeding in it. 1 told about the bleeding to my mother and my mother told to father. My father and mother took me to the lady doctor at hospital. "
It is evident that Mst. Samia Bibi (PW-2) has made statement with innocent precision and sequence by explaining as to when, where, how and what had happened with her. Allied information has brought on the record through cross-examination by the defence, wherein, the victim not only stood firm to her statement made in examination-in-chief, rather with confidence she further explained the situation and circumstances at the time of occurrence and even the events ensued. The victim was aged 6 years, but she exhibited noticeable maturity by stating that though father had picked her from the school on 12.05.2017 but she did not tell anything to him, rather she went home and laid all such information to her mother, which is quite a natural and acceptable phenomenon. Her further statement that she never visited the said school after the alleged occurrence, is yet another factor which goes a long way to establish that something terribly had gone wrong to her, whereafter, as an ordinary course the parents would never have wanted to yet again throw their kid, especially the female, to such an atmosphere where she could be further exposed to nasty questions or situations. Cross-examination by the defence could not shatter the testimony of the victim on material aspects, and she categorically denied the suggestions about nominating the accused on the asking of her father and also concoction of story.
8. Syeda Aisha Bibi (PW-5) mother of the victim, though is not the witness of the crime but she toed the line of Mst. Samia (victim) about commission of rape with her. This witness also satisfactorily explained the delay in reporting the matter to the police by stating that:
"We kept on thinking for two/three days for what we should do. When we look our daughter to CMH, Gujranwala. The duty doctor said that it is police case, you should approach the police. Then we went to the police station for registration of the case. That on 15.05.2017, we along with Humaira Bashir/LC went to the Civil Hospital, Gujranwala. Lady doctor conducted the medical examination of my daughter namely Samia Bibi and said that rape has been committed with the victim."
The parents of the victim after knowing about the occurrence definitely would be under mental stress and it is also quite normal that they would have given deep thought to all pros and cons, and ultimately when they got the victim medically checked up and the doctor also opined that the victim had been raped and that it was a police case, only then as a last resort they would have approached the police to lodge the complaint. As such, in the peculiar facts and circumstances of the case, the argument of learned counsel for the appellant with regard to delay in reporting the matter to the police, has no worth to be considered or draw an inference adverse to the prosecution case. Reliance can safely be placed on the case reported as "Irfan Ali Sher versus The State" (PLD 2020 Supreme Court 295). If the prosecution had any intention to book the appellant falsely, the medical record could have been maneuvered to bring the same in consonance with the date of occurrence or otherwise the date of occurrence could have shuffled to correspond with the medical record, but here in this case apparently everything was kept in natural flow and no such attempt was made nor even it has been suggested by the defence either.
9. Furthermore, as discussed above, Syeda Aisha Bibi (PW-5) may not be a direct witness of the occurrence, but as shall be seen from her statement, the victim disclosed to her the entire details just on her reaching back at home, therefore, by all intents and purposes the statement of PW-5 has the relevance and can be considered as "res gestae" evidence per force of Article 19 of the Qanun-e-Shahadat Order, 1984. The Hon'ble Supreme Court of Pakistan in the case "Raja Khurram Ali Khan and 2 others versus Tayyaba Bibi and another" (PLD 2020 Supreme Court 146), with reference to "res gestae" referred a case from Canadian jurisdiction, the relevant portion of said paragraph is reproduced hereunder:
"The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in Courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.
"Because of the frequent difficulty of obtaining other evidence and because of the lack of reason to doubt many statements children make on sexual abuse to others, Courts in the United States have moved toward relaxing the requirements of admissibility for such statements. This has been done in the context of the doctrine of spontaneous declarations. In McCormick on Evidence (3rd ed. 1984), at p. 859, n. 49, the authors refer to this development as the "tender years" exception to the general rule, and describe it as follows:
A tendency is apparent in cases of sex offences against children of tender years to be less strict with regard to permissible time lapse and to the fact that the statement was in response to inquiry. "
"Similarly, Wharton's Criminal Evidence (13th ed. 1972), at p. 84, states that while "[t]he res gestae rule in sex crimes is the same as in other criminal actions", the rule "should be applied more liberally in the case of children".
"These developments underline the need for increased flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statements made by children to others about sexual abuse. In so far as they are tied to the exception to the hearsay rule of spontaneous declarations, however, they suffer from certain defects. There is no requirement that resort to the hearsay evidence be necessary. Even where the evidence of the child might easily be obtained without undue trauma, the Crown would be able to use hearsay evidence... "
[Emphasis added]
It is high time to follow above principle and allow "tender years" exception to general rule and create a room for admissibility of such evidence particularly in child abuse cases. Following above principles, testimony of PW-5 when examined, it transpired that she stood firm even during cross-examination and defence remained unsuccessful in eliciting something damaging to the prosecution or favourable to the defence; even otherwise, her statement being natural and realistic inspires full confidence and lends credible support to the statement made by the victim.
10. An objection was raised by the defence that deposing the fact of rape by the victim to her mother was not spontaneous because such statement was made after about three hours of the occurrence and there was sufficient time to concoct the story. Such contention is not worth appreciating because the moment she reached the home, she expressed the trauma to her mother which was still alive and dominating her thoughts. It has rightly been explained in Ratten v. R [1972] AC 378 & R v. Andrews [1987] 281 which had disapproved -Regina v. Bedingfield [1879] 14 Cox C.C. 341; Lord Ackner summarized the position relating to the doctrine of res gestae; part of his observation is as under;
(1) The primary question which the judge must ask himself is: can the possibility of concoction or distortion be disregarded? (2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. (3) In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus, the Judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
As per evidence victim highlighted the events immediately to her mother when she observed bleeding while attending a urinating call, and that too apparently in a response to asking by her mother. It was by all purposes and intents a spontaneous declaration which rules out concoction or deliberation.
11. Medical evidence was also a part of res gestae evidence in this case under the principle of "Contemporaneous Physical Condition" which was first observed by mother of the victim and then by doctor whose statement is admissible with respect to injury and not for identifying accused. Some references in this respect are as under:
This was applied in Tickle v. Tickle (1968), where it was stated that, if what a patient says about her state of health to a doctor is admissible, then what a doctor says to his patient is also admissible. In both cases, the res involved is the person's state of health.
An example of the application of the principle in a criminal case is R v. Conde (1867), in which evidence of a child's complaints of hunger to a neighbour was admissible to prove that the child was starving. The important thing to note here are that the statement must be contemporaneous and is only admissible to prove the condition, not its cause. In R v. Gloster (1888), the accused was charged with having caused to death of a woman by an illegal operation, but her statements a few days after the operation as to who had caused the injuries from which she died were held to be inadmissible.
Charles J Stated:
.... the statements must be confined to a contemporaneous symptoms and nothing in the nature of a narrative is admissible as to who caused them or how they were caused.
The evidence of PW-5 for spontaneous declaration made to her by the victim about rape and injury is corroborated by the doctor PW-3, before whom the victim made such statement. This composition has a support to prosecution case with respect to injury which would legally and lawfully be read against the accused/appellant in this case so as to form an opinion about the truth of circumstance so described.
12. Medical evidence in this case coming through Dr. Fareeha Akram Malik (PW-3) is lending corroboration to the prosecution case, as according to this witness the victim was medically examined by her on 15.05.2017, she was accompanied by her mother and she had been brought by lady Constable Humaira Bashir 626/LC (PW-6). The history shown by her is the same as had been the case of the prosecution, clothes were found stained with semen and blood; following injuries she observed during the examination;
1. A partially healed abrasion ¼ x ¼ nail marks on right cheek.
2. A partially healed abrasion brown scab on chin 1 cm x 1 cm.
Local and specific examination
1. A laceration 1x1 cm reddish in colour on right labial fold. Private part swollen, red and tender.
2. The hymen was fresh torn. Admitted little finger. Redness and hyperemia seen around the margins of hymen.
Vaginal swabs were secured for DNA tracking and for all other allied information; such examination was pursuant to Section 164-A & 164-B of Cr.P.C. The injuries observed by the doctor stand corroborated with the prosecution version of the case. Though defence has alleged that doctor has wrongly observed that hymen was freshly torn; reason for objection, the counsel unfolded, that medical examination was conducted after three days of the occurrence and hymen in children is very deep and in such an haphazard or chance occurrence it is not believable that penal insertion could be possible up to vaginal canal attracting the very requirement of penetration; therefore, it could at the most be regarded as an attempt to commit rape; he stressed that showing inflated injuries with malafide intention create doubt in prosecution story which entitles the accused to be acquitted.
Two important preliminary questions for response to defence are outlined as under:
♦ Whether after three days of examination, injury to hymen could be regarded as fresh?
♦ To what extent the penal insertion attracts the requirement of penetration?
To meet the first question, a forensic scientist Mr. C.K. Parikh in "Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology at page 5.37 mentions as follows;
"Soon after the act, the torn margins are sharp and red, and bleed on touch. Even when examined after 3 to 4 days of offence, the edges of laceration are congested and swollen. The surrounding tissues are also swollen and tender ".
Further, H M v. Cox "Medical Jurisprudence and toxicology" (Seventh Edition), by Dr. PC Dikshit, Professor and Head of Forensic Sciences, Maulana Azad Medical College, New Delhi printed by LexisNexis Butterworths, explains the situations in the Chapter of Sexual Offences at page 591 as under;
In case of incomplete penetration, the only signs which may be seen are reddening and inflammation of vestibule within the labia or a small tear of the posterior fourchette. There may also be contusion of the hymen.
The description of injuries explained by the doctor stands perfectly matched with observation highlighted above
For extent of penal insertion, it is highlighted in SIMPSON FORENSIC MEDICINE (Tenth Edition) by Bernard Knight that;
"Sexual intercourse means nothing less than penile insertion, even if this is only just between the labia. Full penetration is not necessary and rupture of the hymen is irrelevant, but unless some degree of penile introduction can be proved, a charge of rape cannot be sustained and anything less is 'indecent assault'. An orgasm or ejaculation of semen is not relevant, only penetration".
Above observations tally with the findings of doctor, therefore, full penetration is not necessary, a laceration 1 x 1 cm reddish in colour on right labial fold was sufficient to attract the offence of rape on the touch stone of penetration.
The situation when rape is committed with a child has been well explained in H M V. Cox "Medical Jurisprudence and toxicology" (Seventh Edition), by Dr. PC Dikshit, Professor and Head of Forensic Sciences, Maulana Azad Medical College, New Delhi printed by Lexis Nexis Butterworths, in the Chapter of Sexual Offences at page 591 as under;
In the case of small children, the genital injuries found are either absolutely minimal or of such magnitude that one is unable to perform the examination without general unaesthetic. It must be remembered that it requires a great amount of force, exerted via penis, to effect full penetration into the small under-developed child, because of this many rapists of small children are satisfied to commit what is described as rape without full penetration.
Further that;
Bodily injuries, because of the lack of resistance by the child are usually absent in this type of case.
In Madan Gopal Kakkad v. Naval Dubey and another case reported as 1992 SCR (2) 921, 1992 SCC (3) 204; for an alleged rape of a minor girl aged eight years, on examination of victim after five days, the medical officer found an abrasion on the medial side of labia majora and redness around labia minora with white discharge but the hymen was intact and was admitting the tip of the little finger and in view of absence of signs of full penetration, the medical officer opined that there was an attempt to rape. The Supreme Court finally observed as under:
Under the basis of medical findings, it can be safely concluded that there was partial penetration within the labia majora or vulva or pudenda which in legal sense is sufficient to contribute to rape and convicted the accused for the offence of rape.
Under the circumstance, it was a case of complete rape and not an attempted rape as alleged by the defence. Detailed medical examination in children is also a complex process; therefore, the methods which usually applied by the doctors and advice in this respect has been highlighted in SIMPSON FORENSIC MEDICINE (Tenth Edition) by Bernard Knight
The way in which the vaginal canal is examined depends upon the examiner and the equipment available. Some use a speculum or even handle of a forceps, whilst other have glass globes, sometimes transilluminated, to stretch the hymen around for inspection of the edges. The technique varies with the patient as well as with the examiner, as the method for a sexually active adult is different from that of a small child, where only a limited internal examination may be justified.
This limited examination is available in this case as required for formal proof.
13. Defence though keeping the appellant aside threw a hint of consented act by someone else. Factor of consent is immaterial when the victim is below the age of consent as mentioned in Section 375 of PPC. Simpson regarded that such sexual intercourse is always 'unlawful' and may be viewed as constructive rape', even if the girl appears to have given consent. Defence has also raised objection that nobody has heard cries/voices or shrieks/screams in the school nor observed the victim sobbing after the act which raises suspicion about alleged rape. Suffice it to say, immediate control over the victim body by pressing her mouth took away the senses immediately and fearful catch hardly gave any time to respond when victim in the age was unable to comprehend what has been done to her; in such situation narrating the story to someone under a state of fear is not expected. The meaning of force in relation to rape need not necessarily indicate physical restraint by the man, though this is most common; even the fear of such violence is sufficient for an act of rape to succeed. Defence has nothing substantial in the hand to dislodge the prosecution case.
14. Accused/appellant was also medically attended and examined by Dr. Ahmad Sikandar PW-4 who observed him as potent, able to perform the sexual act, it is a support to prosecution case which helps to tag him with criminal liability for commission of rape with the victim. In Pakistan examination of accused is not properly conducted though now required to be examined under Section 53-A of Cr.P.C. which outlines a standard examination as per international best practices that must be followed. A standard examination, specially of genital inspection to see any bruise or injury on penis, is reflected through a reference from SIMPSON FORENSIC MEDICINE (Tenth Edition) by Bernard Knight; as under;
General injuries, especially scratches on the face, neck and chest from the victim's fingernails are relevant. Examination of the genitals rarely reveals any sings, though there may be some non-specific tenderness and reddening. Exceptionally, the glans or prepuce may be bruised and the frenum of the penis damaged.
Trace evidence is usually more important than genital inspection. Samples of public hair should be taken, along with head hair and even moustache or beard if appropriate. The pubic hair should be combed out to seek foreign hairs. Blood samples of grouping, alcohol and DNA are taken and any evidence of venereal infection noted. The Lugol's iodine test is now redundant: the idea was that iodine solution painted on to the glans would reveal the presence of vaginal squames by turning brown due to the contained glycogen in the vaginal cells".
15. There was stern stance that victim did not know the name of accused/appellant nor she told such name to her mother; therefore, identification of accused/appellant was a challenge for prosecution in this case particularly when no identification parade was held. As regards non-holding of identification parade, I am of the view that it was not a case where such exercise would have been necessary, because the victim had nominated two specific persons including Kamran (appellant) by stating that he had committed rape with her, whereas, Barkat Ali (since acquitted) was also named with a role of standing outside the washroom, both were admittedly the employees of the same school and further it has brought on the record during cross-examination of Syeda Aisha Bibi (PW-5) that victim had also identified them in the School. It was in the testimony of PW-1, complainant that victim was in the school for about a month before the occurrence who was well aware to the accused/appellant being employee of that school and the man who succeeded to come so close to her body, notching and ravishing her could not expected to be forgotten by the victim, for which a formal identification parade is not necessary. For identification of an accused "Turnbull guidelines" provide a threshold which were explained in R v. Turnbull [1977] Q.B. 224 in which Court of Appeal laid down specific guidelines that what factors judge should consider in relation to identification of an accused:
"(i) How long did the witness have the accused under observation? (ii) At what distance? In what light? (iii) Was the observation impeded in any way, as for example by passing traffic or a press of people? (iv) Had the witness ever seen the accused before? How often? (v) If only occasionally, had he any special reason for remembering the accused? (vi) How long elapsed between the original observation and the subsequent identification to the police? (vii) Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
Honourable Supreme Court of Pakistan in a case reported as 2019 SCMR 956 Mian Sohail Ahmed and others v. The State and others has listed out some "estimator variables" that negatively affect the memory process of a witness: which are:
(i) stress (ii) weapon focus (iii) duration (iv) distance and lighting (v) witness characteristic (vi) characteristics of perpetrator (vii) memory decay.
Such factors in this case do not negatively affect the identification of present accused/appellant in the light of observation made supra and infra.
16. There is a difference between identification and recognition; to acknowledge acquaintance with or perceive someone previously known are the forms of recognition. It is common understanding and acknowledgement that we know many people in life by their profession or the act they perform around us at work place or in neighbourhood but we do not know their names or their parentage, however, they are well canvassed in our mind for whose identification a formal parade is unnecessary. Their identification is proved from the evidence of link of witness with such person. In R v. Turnbull [1977] Q.B. 224, Lord Widgery CJ continued:
"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution ".
Victim in this case knew the accused/appellant and could well recognized him at the time of commission of offence in a broad day light, in the washroom of a school and the act of accused ranges from episode of committing rape, pressing her mouth, washing himself, the victim and finally the floor; ample time was available to get clicks and printing impression of his image to the little innocent mind of the victim which will not erase from her mind even after years to pass; there was no question of misidentification of the accused/appellant in this case.
17. Defence has also pointed a finger against Abdul Qadeer Mazari PW-7 that on his push the present accused/appellant was falsely involved in this case; it is evident that he on the command of his senior was simply an inquiry officer and required to be part of whole process. This witness had no enmity with the accused/appellant as alleged nor he had any influence over the school where occurrence took place. Even otherwise he was transferred to and joined Gujranwala Cantt on 06.05.2017 just before six days of occurrence. Other objection that he too got examined the victim from CMH on 17.05.2017 and procured another set of vaginal swabs different from one already taken by doctor at DHQ Hospital. There was no necessity to duplicate the exercise which raises suspicion about transmission of actual swabs. This confusion, PFSA report has settled down which finds mentioned the two sets of vaginal swabs as Items Nos. 1 & 2 and 7 & 8. It was obvious that all swabs were sent to PFSA, yet report was negative and throw of allegation upon him to manage the swabs for tagging the accused/appellant with criminal liability stays no more and falls to ground.
18. The veracity of PFSA report has also invited the attention of this Court; it has minutely been examined, PFSA observed one vaginal swab (Item No. 1) as stained with semen yet no spermatozoa were found which resulted in DNA profile obtained as partial and inconclusive. Absence of sperms does not mean that rape has not been committed as observed by Forensic Scientist Mr. C.K. Parikh in his cited book observed at page 5.38 as under;
Presence of Spermatozoa and other microorganisms; Normally, sperms remain motile in the vagina for about six to eight hours and occasionally 12 hours. Non-motile forms are detectable for about 24 hours with occasional reports of 48 to 72 hours and very rarely 96 hours. Motility persists longer at body temperature. The sperms remain motile in uterine cavity for 3-5 days. Nonmotile forms may be found in the female genital tract for weeks or months after death. To demonstrate the presence of sperms, the vaginal contents are aspirated by means of a blunt-ended pipette. A wet preparation is then made on a slide and examined under a microscope for motile spermatozoa. If motile sperms are seen, it would mean that intercourse has taken place within 12 hours, if the sperms are not motile, it is not possible to say exactly when intercourse took place except that it may be over 12 hours and within 24 to 48 hours and occasionally up to 72 hours. Intact spermatozoa are rarely found in the vagina after 72 hours after coitus.
Further that:
Absence of sperms in the vagina does not mean that sexual intercourse has not taken place. It may be due to non-emission, aspermia, previous vasectomy, very old age, or poor techniques by examining doctor.
PFSA report in this case to some extent lends support to the prosecution case; however, it is observed with pain that report is deficient in some respects as highlighted infra;
1. No analysis was performed on Item Nos. 3 & 4 (hair stuck to piece of soap), nor justification is available, it could, have been the best source for extraction of DNA.
2. Doctor has observed that clothes of victim were stained with semen and blood; these clothes, PFSA Report has shown as Items No. 11, 12, 13, 14, 15 & 16; it was reported that no seminal material was found over it; yet these were not examined for presence of blood, nor any observation was given. It is also silent that if the stains were not of semen, what it smeared with.
3. Clothes of accused though were stained but were not examined for presence of semen rather reported that no blood was found over it.
This hopeless attempt and explanation raise serious question about the priority of examination as to regard it a routine slackness or deliberate jumps. Prosecution must attend to these aspects of the matter in every case; if feels any doubt, should immediately resort to calling the concerned expert as witness before the Court for explanation or apply to the Court under the provisions of Punjab Forensic Science Agency Act, 2007 for clarification of report.
19. It has been held by Honourable Supreme Court in case reported as "Atif Zareef and other v. The State" (PLD 2021 Supreme Court 550) that rape victim stands on a high pedestal than an injured witness, because an injured witness gets the injury on physical form while rape victim suffers psychologically and emotionally and single testimony is sufficient to uphold the conviction. In the present case single testimony of victim being a child witness of six years of age stands supported with statement of PW-1 complainant, her father and PW-5 her mother as res gestae evidence whereas it is corroborated with medical evidence put forth by doctor PW-3 in addition to other evidence on record as discussed above. While relying on cases reported as "Umar v. The Crown" (1969 PCr.LJ 1154) (Supreme Court) and "Amjad Javed v. The State" (2002 SCMR 1247), it is safely held that the testimony of child witness was credible and trustworthy in this case to bring home the guilt of accused.
20. For what has been discussed above, it is evident that prosecution has proved the case against the appellant beyond shadow of reasonable doubt, a standard requisite to sustain a criminal charge. There is no legitimate exception to findings arrived at by the learned trial Court with respect to conviction and quantum of sentence awarded to Kamran appellant and acquittal of Barakat Ali co-accused; both the appeals and criminal revision cited above are dismissed accordingly. The case property, if any, shall be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
(A.A.K.) Appeals dismissed
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