Asjad Javaid Ghural-J. Through titled criminal appeal under Section 18(1) of the Anti Rape (Investigation and Trial) Act, 2021,(Act) appellant Younas Masih has called in question validity of the judgment dated 21.04.2022 passed by the learned Additional Sessions Judge/ Gender Based Violence Court, Sheikhupura in case FIR No.803/21 dated 11.10.2021, in respect of an offence under Section 376 (iii) PPC, registered at Police Station, Housing Colony, District Sheikhupura, whereby he was convicted and sentenced as under:- Under Section 376 (iii) PPC Death with fine of Rs.3,00,000/- and in default thereof to further undergo SI for six months. He was also directed to pay Rs.1,00,000/- as compensation relief u/s 17 of the Act to the victim Mehak Malik, which shall be recovered as arrears of land revenue.
Appellant was held entitled to the benefit of Section 382-B Cr.P.C.
2. Capital Sentence Reference No.08-ARA-2022 sent up by the Trial Court in terms of Section 18(2) of the Act ibid will also be decided through this judgment.
3. The prosecution story unfolded in the complaint (Ex.PJ) set out by the complainant Shaghufta Rafique (PW-6) a household widow lady was that her daughter Ms. Mehak Afzal, aged about 10 years was studying in Government Girls High School, Housing Colony in fifth class. On observing her being scared for the last few days, she asked her about the reasons, who in the presence of Rana Khizar Hayat (PW-8) disclosed that on 08.10.2021 at 7.00 a.m. appellant, who was serving as Sweeper in the school, forcibly committed Zina-bil-Jabr with her in a room. Upon this disclosure the complainant (PW-6) set the law into motion, resulting into registration of formal FIR (Ex.PA).
4. Sohail Yousaf, T/SI (PW-5) visited the place of occurrence on the same day, prepared unscaled site plan (Ex.PE), recorded the statements of witnesses including the victim under Section 161 Cr.P.C.
He got conducted medico legal examination of the victim and also arrested the appellant on the same day. On 13.10.2021 he got conducted DNA analysis of the appellant and the victim. After completion of the investigation, he submitted report under Section 173 Cr.P.C.
5. Dr. Dabeera Masood, (PW-9) conducted the medico-legal examination of the victim on 11.10.2021 and besides observing scratch marks on both breasts of the victim also found rupture of hymen and redness/swelling around vaginal introits.
6. Dr. Bilal Khalid, (PW-11) conducted potency test of the appellant on 14.10.2021 and found him potent.
7. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
8. The prosecution examined 12-witnesses besides the report of DNA and Serology Analysis (Ex.PN).
The appellant in his statement recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of fact leveled against him. He neither opted to make his statement under Section 340(2) Cr.P.C. nor produced any evidence in defence.
9. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above. Hence, this criminal appeal.
10. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and gone through the record.
11. The case of the prosecution was structured upon various pieces of evidence that prominently includes testimony of Mst. Shaghufta Perveen, (PW-6)/ complainant/ mother of victim, Ms. Mehak Afzal (PW-7)/victim and Rana Khizar Hayat (PW-3), medical evidence including medico-legal report (Ex.PK) and statement of Dr. Dabeera Masood (PW-9).
12. The most crucial and star witness of the occurrence was Ms. Mehak Afzal (PW-7) being victim of the occurrence. This innocent soul was about 10/11 years old at the time of recording of evidence and the Trial Court before recording her testimony has asked her number of questions to establish whether she was competent to testify and had recorded that "she appears intelligent enough to understand questions and gave rationale answers, thus, her statement is recorded under Article 3 Read with Article 17 of the Qanun-e-Shahadat Order, 1984." She in her statement in categorical terms raised accusing finger towards the appellant to be a person, who forcibly took her to the washroom, put off her cloths, slapped her upon her resistance and committed rape with her. She faced the test of cross-examination with full confidence and gave graphic details of the incident in a quite natural manner. From the tenor of the statement of the star witness, we are convinced that what she deposed while appearing in the dock in the Court room was confidence inspiring and no one has tutored her in this regard.
Learned counsel for the appellant while referring to her statement U/S 164 Cr.P.C. (Ex.PM) and some portion of her cross-examination wherein she deposed that she told about the incident to the Principal, her mother (PW-6) and another teacher on the same day of occurrence and after meeting with this horrible incident, she lost her senses in the school, laid much emphasis that if the incident was happened in the same manner as alleged by the victim, the same should have been highlighted on the same day and there was no explanation why the complainant took two long days in reporting the matter to the police, which is fatal to the prosecution's case. No doubt general principle, evolved in our criminal jurisprudence is that delay in setting the law into motion was normally considered as an indication of deliberation, consultation and premeditation but in cases of rape involving honour and dignity of a rape survivor and family, such stringent principle cannot be applied. In such like cases, there are multifarious factors including societal stigma, fear of disbelief, cultural norms, victim blaming, fear of retaliation, concern about privacy and lack of support, which plays crucial role and often prevents the victim from reporting the horrible incident with much promptitude. Here in the instant case, from the cross-examination of complainant (PW- 6), it came on surface that she was a widow living in her father's house for the last ten years alongwith her only daughter i.e. victim of the incident. Therefore, expecting a widow, who was socially and financially dependent upon her parents and brothers to set the law into motion without taking them into confidence was highly implausible.
Furthermore, horrifying incident took place in the school and the culprit was the employee of the school, therefore, in ideal situation, it was the duty of the Principal of the school, to whom the little angel informed there, to set the law into motion but she not only keep silent on this issue but the material available on record suggested that she attempted to conceal the incident for the reasons best known to her. Ms. Sabuhi Aslam, SST (PW-10) confirmed this factum while appearing in the witness box by stating that " ... I am serving at Govt. Girls High School, Housing Colony Sheikhupura as SST and after occurrence, charge of Principal was handed over to me when Miss Saleema was surrendered by the order of C.O (Education) Sheikhupura." This is the situation being faced by the victim and complainant. In a society, where a highly educated working woman avoided to report the incident of rape happened in her school, apparently in order to save the repute of the school, it cannot be expected from a household lady, who was dependent upon other male members of her family to set the law into motion with promptitude.
Moreso, reporting the cases of rape in our country are comparatively low due to fear of stigmatization and lack of trust in the legal system. According to the report of Human Rights Commission of Pakistan in 2020, only around 20% of the rape cases were reported. In a society where 3/4th of the incidents of sexual abuse went unreported due to internalized shame, fear of judgment, perception of credibility, exposure and vulnerability and impact on identity, reporting of an incident of rape is an exception and not the delay in reporting such matter. Many victims or their family members may need time to process their experience before coming forward and their choices should be respected. Even otherwise, the Apex Court of the country in certain cases of rape ignored the delay in lodging of crime report. In case as "Mehbood Ahmad..Vs.. The State (1999 SCMR 1102)" wherein it has been laid down as under:- " As to the apparent delay in lodging of the F.I.R., we cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, many a cases of rape go unreported. A victim of rape should not be penalized on account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim's difficult decision to purge the society of perpetrators of such heinous offences." Similarly, in case reported as "Zahid and another ..Vs.. The State (2020 SCMR 590)", it has been observed as under:- "Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation and which society may view unsympathetically could prey on the minds of a victim and her family and deter them to go to the choice."
Similar principle has also been reiterated in case reported as "Zahid ..Vs.. The State (2022 SCMR 50)".
Therefore, we are unanimous in holding that while dealing with delay in cases of rape, the Courts should have taken into consideration all the above factors and if anyone of the above elements established from the record, then the delay whosoever it may be, ought to have been ignored.
13. Learned defence counsel further emphasized that there was no eye-witness of the occurrence.
No doubt, from the testimonies of the complainant (PW-6) and acclaimed eye-witness (PW-8), it has been established that both of them have not seen the unfortunate incident with their own eyes but the same is not fatal to the prosecution case. A rape is often a crime that occurs in secrecy, making it challenging to obtain direct evidence or witnesses. The sole testimony of the victim in such like cases is vital and unless there are compelling reasons which necessitate corroboration of her statement, Court should find no difficulty to rely upon the personal account of a victim of sexual assault to convict an accused, where her testimony was credible and consistent. Reliance is placed on case reported as "Shakeel ..Vs.. State (PLD 2010 SC 47)", wherein it has been laid down as under:- "There is no denying the fact that acid test of the veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction... By now it has been well-settled that if the statement of prosecutrix is considered trustworthy, no corroboration would be needed and such need would only arise in the circumstances indicating the possibility of her being consenting party to sexual intercourse which is a rare phenomenon in case of Zina-bil-Jabr."
In case reported as "Habib Ullah ..Vs.. The State (2011 SCMR 1665)" it has been observed as under:- "It may be kept in view that veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction."
Likewise in case reported as "Atta ul Mustafa ..Vs.. The State (2023 SCMR 1698)" it has held as under:- "By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to solely relying on the testimony of the victim of a sexual assault to convict the accused. However, the strict condition for this is that the same shall reflect that it is independent, unbiased and straightforward to establish the accusation against the accused and if the court finds it difficult to accept victim's version, it may seek corroboration from some evidence which lends assurance to her version."
14. Dr. Dabeera Masood, (PW-9) conducted medico-legal examination of the victim on 11.10.2021 and upon general physical examination, she observed "There was scratch marks/abrasions, on inner portion of right breast and mid portion of left breast." Upon local examination, she observed "Ruptured hymen and redness and swelling around vaginal introits." Potency of the appellant for committing the crime has also been established through the testimony of Dr. Bilal Khalid, (PW-11).
Thus, the medical evidence lends full support that the brutal act of rape was committed with the victim.
Learned defence counsel while referring to the final opinion of the Medical Officer (PW-9) that "The PFSA report Features are suggestive of old vaginal intercourse/penetration" laid much emphasis that medical evidence is in negation to the ocular account. We are not in agreement with this submission that it is an admitted fact that medico legal examination of the victim was conducted two days after the horrible incident and in such eventuality, opinion of the Medical Officer qua old vaginal intercourse is infact support the prosecution story. Moreso, availability of redness and swelling around vaginal introits are indicative of the fact that the innocent girl was molested within days. Thus, the referred opinion of the Medical Officer is in line with the ocular account.
Learned defence counsel also stressed that in the report of DNA analysis (Ex.PN), no semen stain was detected, which is fatal for the prosecution. This submission is also not helpful for the defence for more than one reasons. Firstly, as has been observed supra the medico legal examination of the victim was conducted two days after the occurrence, as such after such a long time there seems no possibility of availability of semen at the time of examination. Secondly, detection of seminal material in the vaginal swa bs of the victim is just a corroboratory piece of evidence and merely due to its non-detection the other overwhelming ocular and medical evidence cannot be discarded. Reliance is placed on case reported as "Abdul Ghani ..Vs.. The State through P.G.
Balochistan and another (2022 SCMR 544)" wherein it has been observed as under:- "The child being in tender nobility is clinically established to have been violated, a circumstance that required no further corroboration. Negative reports do not reflect upon the veracity of prosecution case for reasons more than one. DNA 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. Eve a slightest interference with the integrity of samples may alter the results of an analysis and thus, the fate of prosecution case cannot be pinned down to the forensic findings alone, otherwise, merely presenting a corroborative support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most impeachable."
15. Appellant's defence in his statement recorded U/S 342 Cr.P.C. on account of quarrel took place between him and the complainant due to stoppage of the complainant at the main gate of school is nothing but a far cry. Neither he took this stance in his first version before the Investigating Officer, where infact he confessed his crime, nor he produced any independent witness to establish such plea in the Court. He further opted not to appear as witness on oath U/S 340(2) Cr.P.C. Mere bald statement of the appellant alone cannot be given weightage over the convincing and confidence inspiring evidence of the prosecution.
16. The conclusion of the above discussion is that the prosecution has successfully proved the charge against the appellant to the hilt beyond shadow of reasonable doubt through cogent, reliable and confidence inspiring evidence. The victim herself categorically stated that none else but the appellant forcibly committed rape with her. The statement of the victim finds full support from the medical evidence. Belated lodging of crime report and medical examination of the victim is immaterial in the instant case for the reasons enumerated hereinabove. The appellant in his statement recorded under Section 342 Cr.P.C. though had denied the charges yet the story for his false implication put forward by him does not appeals to a prudent mind. The defence remained unable to prove any ill will or animosity on the part of the prosecution to falsely implicate the appellant in the case of moral turpitude. Appellant has ruptured the virginity of an innocent girl of just ten years, who has not even developed sexual characteristics in a most horrible and cruel manner. Thus, the phrase "no mercy for merciless" would come into play. Award of full dose of death sentence to the appellant, provided under the law, is not only in consonance with the brutality inflicted by him upon the little soul but also expected to serve as deterrent for the like- minded persons. Thus, we have no legitimate exception to differ with the conclusion arrived at by the learned trial Court qua the conviction and sentence of the appellant.
17. The nutshell of above discussion is that this appeal fails, which is accordingly dismissed.
18. Capital Sentence Reference No.08-ARA-2022 is answered in affirmative and death sentence awarded to appellant Younas Masih is confirmed.