28/07/2021
[7/28, 8:26 AM] +92 304 9047701: 2020 SCMR 1270
Criminal Procedure Code (V of 1898)--- ----S. 498---Penal Code (XLV of 1860), Ss. 324, 148, 149, 148, 452 & 354---Attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, house-trespass after preparation for hurt, assault or criminal force to woman with intent to outage her modesty--- Pre-arrest bail, refusal of---Allegation against the accused persons prima facie got support from the medical evidence---All the injured were medically examined on the same day i.e. day of occurrence, through the police---Fromn the spot, 20 empties were taken into possession by the police and recoveries of weapons were yet to be made from the accused persons---During the course of investigation, the police had found the accused persons involved in the case--- Prima facie, provisions of Ss. 148 & 149, P.P.C. were attracted to the case on the basis of material available on record and at bail stage it was not desirable to bifurcate the roles of accused persons as it would amount to deeper appreciation of evidence, which exercise could not be undertaken at bail stage---Petition for leave to appeal was dismissed and pre-arrest bail was refused to accused persons.
[7/28, 8:30 AM] +92 304 9047701: 324 PPC Bail Grant of
Non repetition of fire injury on Non Vital Part No Intention to Kill Bail Grant Of.
2014 Pcrlj 261
2013 Pcrlj 907
2013 MLD 557
2013 Pcrlj 1754
2013 MLD 971
2012 YLR 2566
2012 YLR 1189
2012 MLD 1956
2011 MLD 1187.
[7/28, 8:35 AM] +92 304 9047701: Bail citation for 324 337 F(vi) PPC
S. 497(2)---Penal Code (XLV of 1860), Ss. 324 & 337 -F(vi) ---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, ghayr-jaifah-munaqqillah---Bail , grant of---Further inquiry---As per prosecution version contained in the FIR, though the accused had been attributed two fire shots on non-vital part of the body of injured witness, however, dimension and locale of injuries portrayed that possibility could not be ruled out that injures were in continuation of each other---Perusal of record further revealed that the accused was discharged from hospital after one day, therefore, statement of injured witness that he had undergone surgical intervention during his hospital stay was not substantiated from the record---Injury ascribed to the accused had been declared falling under S. 337 -F(vi) , P.P.C. which entailed maximum punishment of seven years---Declaration of injury was made after a lapse of eight months, during the pendency of present petition before the Supreme Court---Accumulative effect of all such facts and circumstances created doubt regarding truthfulness of prosecution version---Regarding the question of applicability of S. 324, P.P.C., undeniably, the injuries were on non-vital part against a motive which was feeble in nature, hence, such question would be resolved by the Trial Court after recording of evidence during the course of trial---Case of the accused was one of "further inquiry" falling within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and the accused was granted Bail .
2020 SCMR 971 SUPREME-COURT
Side Appellant : MUHAMMAD FAISAL
Side Opponent : State
[7/28, 9:34 AM] Qamer adv: Good judgment on r**e case tow finger theory conviction upheld
----S. 376(2)---Gang r**e---Reappraisal of evidence---Complainant/ victim while appearing before the trial court deposed each and every detail of the gruesome act committed on her, and her testimony could not be shaken as to any material part of the occurrence stated by her---Suggestions in cross-examination relating to her alleged immoral character were strongly denied by her, and in any case, the questions targeting her character had no relevance to the matter on trial, i.e., the commission of r**e on her---Complainant being an educated lady, had no reason to falsely implicate the accused persons, and that too with a such self-deprecating allegation that would tarnish her honour and dignity---Prosecution witness, with whom the complainant was travelling, at the time of the incident deposed how he and the complainant, were interrupted by the accused persons and how the complainant was taken away by them on the day of occurrence---Said statement, fully corroborated the version of the complainant as to her forcible taking away by the accused persons---Testimony of the complainant as to commission of r**e on her on the day of occurrence was supported by the medical evidence, i.e., the medico-legal report and the statement of the doctor who examined the complainant---Potency test of the accused persons was also positive, and their involvement in commission of the offence was corroborated by the DNA test report---Prosecution had thus proved its case against the accused persons beyond reasonable doubt---Convictions recorded against the accused persons were upheld, and their sentences of imprisonment for life, as modified by the High Court, were also maintained---Appeal to the extent of accused persons was dismissed.
(b) Penal Code (XLV of 1860)---
----S. 376---Rape---Reappraisal of evidence---Testimony of victim---Sufficient for conviction---Rape was a crime that was usually committed in private, and there was hardly any witness to provide direct evidence of having seen the commission of crime by the accused person---Courts, therefore, did not insist upon producing direct evidence to corroborate the testimony of the victim if the same was found to be confidence inspiring in the overall particular facts and circumstances of a case, and considered such a testimony of the victim sufficient for conviction of the accused person---Rape victim stood on a higher pedestal than an injured witness, for an injured witness got the injury on the physical form while the r**e victim suffered psychologically and emotionally.
State of U.P. v. Munshi AIR 2009 SC 370 ref.
(c) Penal Code (XLV of 1860)---
----S. 376---Rape---Reappraisal of evidence---DNA test report---Evidentiary value---DNA test report due to its scientific accuracy and conclusiveness, was considered as a gold standard to establish the identity of an accused and a very strong corroborative piece of evidence.
(d) Penal Code (XLV of 1860)---
----S. 376(2)---Gang r**e---Reappraisal of evidence---Benefit of doubt---Possibility of mistaken identification---Accused was not nominated by the complainant/victim in the FIR, nor was there any explanation given in the supplementary statement of complainant, wherein he was nominated, as to how the complainant came to know that he was that unknown person who had committed r**e on her with other persons---Such gap in the prosecution evidence cast a reasonable doubt about his involvement in the occurrence especially when it was appreciated in view of his negative DNA test report---Possibility of mistaken identification of the unknown person, as being the accused, could not be ruled out---Prosecution thus could not prove its case against the accused beyond reasonable doubt---Appeal was accepted to the extent of accused, his conviction and sentence were set-aside, and he was acquitted of the charge by extending him the benefit of doubt.
(e) Penal Code (XLV of 1860)---
----S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape---Sexual history/character of r**e victim---Relevancy---"Two-finger test" (TFT) or "virginity test"---Constitutionality and legality---In r**e cases s*xual history/character of r**e victim was not relevant and it could not be used to discredit the victim's credibility---Furthermore the two-finger test" (TFT) or "virginity test" had no scientific justification or evidentiary relevance to determine the commission of the s*xual assault of r**e---Reporting s*xual history of a r**e survivor amounted to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Art. 14 of the Constitution---Principles relating to relevance of s*xual history of r**e victim and constitutionality of two-finger test" (TFT) or "virginity test" stated.
Modern forensic science showed that the two finger test must not be conducted for establishing r**e-s*xual violence, and the size of the va**nal introitus had no bearing on a case of s*xual violence. The status of h***n was also irrelevant because h***n could be torn due to several reasons such as cycling, riding among other things. An intact h***n does not rule out s*xual violence and a torn h***n does not prove previous s*xual in*******se. H***n must therefore be treated like any other part of the ge****ls while documenting examination findings in cases of s*xual violence. Only those findings that were relevant to the episode of s*xual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., were to be documented. The medical officers instead of burdening themselves with reporting about the s*xual history of the victim must ensure, in a case of s*xual offence of r**e to examine the external ge***al area for evidence of injury, seminal stains and stray p***c hair.
Modi's Textbook of Medical Jurisprudence and Toxicology, 26th Edition. Lexis Nexis publications. P.766. ref.
Due to a combination of lack of training, inexperience the medico-legal certificate's (MLC) casually report the two finger test, to show that the va**na could admit phallus-like fingers to conclude that the survivor was s*xually active at the time of the assault or a "virgin" as perceived by the society. Neither of these tests had any basis in medical science. Medical language of 'MLC' was riddled with gender biases and immediately called into question the character of the r**e survivor. It was used to support the assumption that a s*xually active woman would easily consent for s*xual activity with anyone. Examination of a r**e victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to r**e, and not to determine her virginity or chastity.
Dragging s*xual history of the r**e survivor into the case by making observations about her body including observations like "the va**na admits two fingers easily" or "old ruptured h***n" was an affront to the reputation and honour of the r**e survivor and violated Article 4(2)(a) of the Constitution, which mandated that no action detrimental to the body and reputation of person shall be taken except in accordance with law. Similarly, Article 14 of the Constitution mandated that dignity shall be inviolable, therefore, reporting s*xual history of a r**e survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution.
A woman, whatever her s*xual character or reputation may be, was entitled to equal protection of law. No one had the license to invade her person or violate her privacy on the ground of her alleged immoral character. Even if the victim of r**e was accustomed to s*xual in*******se, it was not determinative in a r**e case; the real fact-in-issue was whether or not the accused committed r**e on her. If the victim had lost her virginity earlier, it did not give to anyone the right to r**e her.
Shakeel v. State PLD 2010 SC 47; Shahzad v. State 2002 SCMR 1009 and State of U.P. v. Munshi AIR 2009 SC 370 ref.
Evidence relating to s*xual history should not be admitted in order to draw inferences supporting the 'twin myths', namely, that by reason of that s*xual history, it was more likely that the complainant may have consented or become less worthy of belief.
PLD 2009 FSC 65 ref.
(f) Penal Code (XLV of 1860)---
----S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape cases---Use of expressions, like "habituated to s*x", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for alleged r**e victims in court judgments---Supreme Court observed that such intrusive and inappropriate expressions should be discontinued by the courts, even if they found that the charge of r**e was not proved against the accused, and that such expressions were unconstitutional and illegal. (g) Penal Code (XLV of 1860)---
----S. 376---Qanun-e-Shahadat (10 of 1984), Arts. 146 & 151(4)[since omitted]---Punjab Witness Protection Act (XXI of 2018), S. 12(3)---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape---Prohibition on putting questions to a r**e victim in cross-examination, and leading any other evidence, about her alleged "general immoral character" for the purpose of impeaching her credibility---Scope---Omission of Art.151(4) of the Qanun-e-Shahadat, 1984 ('the QSO') by the Legislature left no doubt in discovering and ascertaining the intention of the Legislature that in a r**e case the accused could not be allowed to question the complainant about her alleged "general immoral character---However, the omission of Art. 151(4) of the Qanun-e-Shahadat, 1984, implied prohibition on questions put in cross-examination or the defence evidence led as to the reputation of the complainant to show her as of "generally immoral character", and not on the questions put or defence evidence led to prove that some other person, and not the accused, was perpetrator and source of semen or injury found on the body of the complainant; nor did that omission completely shun the admissibility of questions in cross-examination or defence evidence, on the previous s*xual relation of the complainant with the accused when the accused took the defence, and intended to prove, that the complainant consented to the s*xual activity that was an issue in the case---Section 12(3) of the Punjab Witness Protection Act, 2018 codified such position when it obligated the court to forbid a question to the victim of a s*xual offence relating to any s*xual behavior of the victim on any previous occasion with the accused or any other person, but also empowered the court to allow such a question if, in the court's opinion, it was a relevant fact in the case---To the same effect were the provisions of Art. 146 of the Qanun-e-Shahadat, 1984, under which the court may forbid such questions if it found that they were 'indecent' or 'scandalous', but could allow them if they related to facts-in-issue or to matters necessary to be known in order to determine whether or not the facts-in-issue existed---However, while allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant's rights to dignity and privacy, to keep the scales of justice even for both.
Section 276(1) of the Canadian Criminal Code ref.
P L D 2021 Supreme Court 550
Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ
ATIF ZAREEF and others---Appellants
Versus
The STATE---Respondent
