MUHAMMAD HASHIM KHAN KAKAR, C.J. Through this application the applicant viz. Shah Zaman Son of Muhammad Ismail seeks concession of post arrest bail in Crime No.130/2024 dated 24.04.2024 registered with Police Station Brewery, Quetta, under Sections 377/34 P.P.C., which was declined by the learned Additional Sessions Judge-VI, Quetta, vide order dated 01.06.2024, hence the instant application.
2. We have heard Mr. Shoaib Ahmed Mengal, learned counsel for the applicant, Mr. Zahoor Ahmed Baloch, learned Additional Advocate General (AAG), assisted by Dr. Ali Mardan, Police Surgeon and Mr. Muhammad Shabbir Rajput, Advocate, counsel for the complainant and also perused the available record.
3. It is case of the prosecution that on the fateful day i.e. 24-04-2024 at 6:30 p.m, the complainant Idress son of Asadullah was intercepted by one Jahangir, Ehsan and Aamir and forcibly taken him to the house of present applicant situated near Brewery Road; Quetta and they sodomized him one by one.
4. As per contents of the crime report, the victim was subjected to sodomy by three persons in the baithak (drawing room) of present applicant. In his statement recorded under section 164 Cr.P.C. victim had narrated the incident in graphic details. The incident took place on 22.04.2024 while FIR was lodged on 24.04.2024 and complainant was also examined on the same day, however, according to the medical report, which was done promptly after lodging of the crime, no injury, bruise, laceration and tear mark was seen around anus. As per medical report, the complainant was habituated to anal intercourse in view of remarks regarding anal orifice, non- tender, funnel shape and small Muscular. We are of the view that the applicant has succeeded to make out a case for post arrest bail at this stage. The FIR was lodged after two days of the occurrence and no plausible justification has been given, for the same. Neither the applicant was accompanying the principles accused at the time of forcibly removing the complainant from park to the house of applicant nor has he committed sodomy to the complainant. The possibility cannot be ruled out that the FIR was registered with deliberation and consultation in order to frame the applicant in the picture. Keeping in view the peculiar facts and circumstances of the present case, no useful purpose would be served by keeping the applicant behind the bars for an indefinite period till the conclusion of the trial. Taking in consideration all the facts and circumstances stated above, we are of the view that the case of the applicant squarely falls within the ambit of section 497 (2)
Cr.P.C. entitling for further inquiry into his guilt Thus the applicant is admitted to bail subject to his furnishing bail bonds in the sum of Rs 200,000/- with one surety in the like amount to the satisfaction of learned trial Court.
5. Before parting with the order in hand, it is pertinent to mention here that after lodging of FIR, the complainant Idress was immediately examined by one Dr. Ali Mardan, Police Surgeon, Bolan Medical Complex, Medico Legal Department Quetta, and the following Medico Legal Certificate
(MLC) was issued: Medical Checkup H/O Sodomy (old) Examination of Passive Person On examination, well oriented with time, place and person: Mentally and physically healthy.
Secondary characters fully developed.
Penis Normal, circumcised with two testis in scratches.
Anal orifice, Non tender, funnel shape, small muscular.
Tag seen: No injury, bruise, laceration and tears seen. Opinion Signs of By Force Penial Penetration seen.
However, to exclude any foul play samples taken. Samples for DNA
2. Xx
3. Anal swa b Issued by Dr. Ali Mardan
6. We are afraid to observe that the police surgeon instead of determining question regarding commission of forcible sodomy with the complainant has given remarks about the past sexual activities of victim. Evidence focusing a victim's sexual history has long been used in rape trials, to infer consent of the female victim and challenge her credibility. Such inference about the rape victim sexuality and credibility was based on the assumption that sexually active women are less credible as a witness and more likely to consent. However with the passage of time, the criminal justice systems considered such assumption as myths and as such the sexual history evidence excluded by introducing exclusionary rules in the law to counter myth. Justice Mclachlin, a Canadian jurist and author who served as the 17th Chief Justice of Canada from 2000 to 2017 explained in the famous case of R.V Seaboyer: "These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar."
7. In this regard, many jurisdictions across the world have made attempt to impose a restriction on the sexual history evidence, often termed as "rape shield laws". Such laws limited the introduction of evidence about the past sexual activity of victim of rape in a sexual assault trial or limits cross- examination of victims about their past sexual behavior in sexual assault cases which was historically allowed to be introduced to establish consent or impeach the credibility of the victim.
8. The basic purpose of rape shield laws was to prevent the victim from double stigmatization, which could further traumatize the victims and discouraging them from reporting, the crime. By limiting the admission of irrelevant and prejudicial evidence, these laws sought to create a fairer and more supporting legal environment for victims to seek justice. Unfortunately, such laws had an inherent problem that they were women inclusive and not covered opposite-sex, rape eases.
Legislators did not write the laws to have the male victims of sodomy in their mind. However, the courts from different jurisdiction found that the rape shield laws applicable to female cases are equally applicable to male cases where the statutory definition of rape is gender neutral. The rationale for applying rape shield laws to male victims is consistent with the policy goals of these laws. The privacy and dignity of male victims are equally deserving of protection as those of female victims. The potential harm Mid prejudice that could result from the disclosure of a male victim's sexual history are analogous to those faced by female victims. Furthermore, the gender neutral language of the statute supports the inclusion of male victims under the protection of rape shield laws.
9. As a matter of fact the evolution of rape shield laws, from their origins in Canada to their adoption in various jurisdictions, highlights the importance of recognizing the dignity and privacy of all victims of sexual assault. The Pakistani legal system, having inherited rape laws from British Colonial era, has taken significant steps towards reform, including the Criminal Law Amendment Act, 2021, which made the definition of rape gender neutral.
10. As stated above, Pakistan's legal system inherited rape laws from the British colonial era, primarily based on. Victorian principles. The law governing rape was section 375 P.P.C. which defined rape as nonconsensual intercourse with a woman. However, this definition was heavily criticized for being gender- biased, as it only recognized female victims and excluded male victims or cases of same-sex rape. Thus, the development of law came forth and Criminal an Amendment Act 2021 made a rape gender neutral. Consequently, an un-consensual act of rape with male same-sex (sodomy) falls within the definition of rape. Now section 377 P.P.C. is applicable to the consensual act of unnatural carnal intercourses with the same-sex or opposite-sex or committed with animals. In such cases, at the most, if the accused plead that the victim was a homosexual or has a homosexual orientation, and may, with the permission of the court, produce evidence in support of his plea or apply for conducting medical examination of the alleged victim, which can only be done with consent of victim/passive agent and in case the accused succeeded to establish its plea, still he would not be allowed to go free.
11. It is worth mentioning that sodomy or unnatural offence against the order of nature punishable under section 377 of P.P.C. is now a scheduled offence under the Anti-Rape (Investigation and Trial)
Act, 2021, hence, the medico-legal examination of the victim in such cases is also governed under the said Act and Rules framed thereunder.
12. It is by now well settled that previous character of the victim of sodomy is immaterial in such cases. Courts have always been vehemently reluctant to consider the fact that the victim was already accustomed to passive habitual sexual intercourse. Additionally, the rape shield laws namely the Criminal Law (Amendment) (Offences relating to Rape) Act, 2016, deleted Article 151(4) of the Qanoon-e-Shahadat Order, 1984 which prohibits adopting a line questioning on the character of victims of such heinous offences.
13. Similarly, section 13 of the Anti-Rape (Investigation and Trial) Act, 2021; stipulate that any evidence pertaining immoral character of victim shall be inadmissible. It speaks as under: "13(2) In respect of any scheduled offence, any evidence to show that the victim is generally of immoral character, shall be inadmissible.
Provided that the right of an accused to a fair trial shall not be prejudiced."
14. Furthermore, the provisions contained in section 7(5) of Anti-Rape (Trial Procedure) Rules, 2022 also declares any evidence as inadmissible if it manifests that the victim is generally of immoral character. It speaks as under: "(5) The Judge shall intervene with the examination or cross-examination of the victim where scandalous questions are being asked as per Article 146 Qanun-e-Shahadat, 1984. In respect of any scheduled offence, any evidence to show that the victim is generally of immoral character, shall be inadmissible."
15. No doubt, a medico-legal certificate is evidence within the very definition of evidence under the provisions of Qanun-e-Shahadat Order, 1984. Hence, a medico-legal certificate declaring the victim of male rape as "habituated to sex" not only become inadmissible but it also damages his reputation in society with perpetuity which would tantamount sheer violation of the right to life and human dignity as recognized and guaranteed under Articles 9 and 14 of the Constitution.
16. Likewise, it would not be out of place to mention here that section 164-A of Cr.P.C deals with medical examination of victims of unnatural offences or sexual abuse etc. The section ibid categorically lays down a statutory proforma, contents whereof incorporated in the medico-legal report. The minute perusal of the above newly inserted section makes it clear that it does not contain any particular requiring the previous character of such victim. Such omission is intentional on the part of the legislature. Section 164-A Cr.P.C. is reproduced as below: "164-A. Medical examination of victim of rape, etc.-(1) Where an offence of committing' rape, unnatural offence or sexual abuse or attempt to commit rape, unnatural offence or sexual abuse under section 376, section 377 or section 377-B respectively of the Pakistan Penal Code, 1860 (Act XLV of 1860) is under investigation, the victim shall be examined by a registered medical practitioner, in the case of female victim by a female registered medical practitioner, immediately after commission of such offence.
Provided that in all cases, where possible, the female victim shall be escorted by a female police officer or a family member from a place of her convenience to the place of medical examination.
(2) The registered medical practitioner to whom such victim is sent under subsection (1) shall, without delay, examine the victim and prepare a report of examination giving the following particulars, namely:-
(a) name and address of the victim and of the person by whom she was escorted;
(b) age of the victim;
(c) description of material taken from body of the victim for DNA profiling;
(d) marks of injury, if any on body of the victim;
(e) general mental condition of the victim; and
(f) other material particulars in reasonable detail.
(3) The report under subsection (2) shall state precisely the reasons for each conclusion arrived at.
(4) The report under subsection (2) shall specifically record that consent of the victim or of his or her natural or legal guardian to such examination had been obtained.
(5) The exact time of commencement and completion of the examination under subsection (1) shall also be noted in the report.
(6) The registered medical practitioner shall, without delay, forward the report to the investigation officer who shall forward it to the Magistrate along with other requirements as specified under clause (a) of subsection (1) of section 173.
(7) Nothing in this section shall be construed as rendering lawful any examination without consent of the victim or of any person authorized under subsection(4)."
17. Furthermore, the medical examination of a victim of unnatural offence or sexual abuse etc. has specifically been dealt with under the Anti-Rape (Crises Cell and Medico-Legal) Rules, 2022.
Chapter-III of the Rules ibid deals with treatment and medico-legal examination of victims of scheduled offences under the Anti-Rape Act, 2021. These rules do not mention about recording or making any remarks to determine the character of either male or female victim that he/she was previously accustomed to sexual passiveness. Such omission on the part of rules making authority also makes it clear that both the legislature and the federal government has intentionally made the character of victim as immaterial to prove or disprove a scheduled offence.
18. The Constitution enshrines the fundamental right of human dignity under Article 14, stating that "the dignity of man and, subject to law, the privacy of home, shall be inviolable" the use of derogatory and stigmatizing language in official documents such as medico-legal certificates not only violates the victim's right to dignity but also encroaches upon their right to privacy. It is the duty of the state and its functionaries, including medical professionals, to uphold these fundamental rights. The principles of medical ethics dictate that healthcare professionals must act with compassion and respect for human dignity and rights. The use of pejorative terms in medical reports is contrary to these principles and can have a detrimental impact on the psychological well-being of the victim. The use of such language is not only unnecessary but also harmful. It perpetuates stigma and can irreparably damage the reputation and social standing of the victim.
The role of the medical professional is to provide care and aid in the administration of justice, not to pass moral judgments or contribute to the victim's trauma. We are afraid that in the cases of sodomy, doctors write derogatory words like 'habitual' catamite admitting one finger' 'habituated to sex or anal sex' homosexual' while making rest of life of victim miserable. It also amounts putting victim on trial rather the accused.
19. When Dr. Ali Mardan was confronted with such legal aspects of the case and the language and remarks regarding the character of victim, he while not in a position to advance any explanation, stated that he has issued the disputed certificate under the pressure of the relatives of complainant. We were also informed that the said doctor is performing his duties as police surgeon for the last about 20 years. Keeping in view the capacity of said doctor to sustain pressure, competency and ignorance of law while issuing fake and bogus medico-legal certificates, secretary health, Government of Balochistan is directed to immediately initiate departmental enquiry against Dr. Ali Mardan and post an honest and competent officer as police surgeon.
In the light of the above, the following directions are issued: i) Only information of the current crime that the survivor is reporting must be documented. Any information of past sexual encounters is irrelevant to the current incident of sexual violence and should not be noted. ii) Old injuries or fact that a person 'habituated to anal sex' should not be recorded. iii) No comment on shape, size and/or elasticity of the anal opening or about previous sexual experience or habituation to anal intercourse should be made. iv) The medical examination must be conducted in a manner that does not further victimize the individual who has already suffered a traumatic experience. v) The use of terms such as "habitual" "catamite" "homosexual" in medico-legal certificates in cases of unnatural offences/sodomy is hereby prohibited. vi) Any violation of these directives shall be taken seriously and may result in disciplinary action against the concerned medical professionals. vii) Pakistan Medical and Dental Council, the body responsible for regulating the standards of medical professionals, is directed to issue clear guidance prohibiting the use of derogatory and prejudicial language in medical reports.