Case laws on rape | Lahore High court acquitted the accused of rape due to insufficient evidence
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Lahore High court acquitted the accused of rape due to insufficient evidence and inconsistencies in the prosecution's case, highlighting doubts about the credibility of the allegations.
Main story of the judgment
The case involves allegations of rape against the accused, Amjad Ali, involving the victim, Shagufta Parveen, who was a teacher. The incident purportedly occurred when Amjad Ali called Shagufta out of school under false pretenses and took her to a house, where he and another individual allegedly raped her at gunpoint. The prosecution presented witness testimony and medical evidence to support their case. However, the judgment highlighted various inconsistencies and shortcomings in the prosecution's evidence, including delays in reporting the incident, discrepancies in witness testimony, and inconclusive medical findings. Ultimately, the court found that the prosecution had failed to prove the case beyond a reasonable doubt, leading to the acquittal of the accused.
The main point
by the court revolved around the credibility of the prosecution's case. The court highlighted several key issues, including the delay in filing the FIR, inconsistencies in witness testimony, and deficiencies in the medical evidence. The judgment scrutinized the prosecution's evidence and concluded that it failed to establish the guilt of the accused beyond a reasonable doubt. Therefore, the court emphasized the principle of giving the benefit of the doubt to the accused and ultimately acquitted the defendant.
faults in the medical evidence
concerning the victim. One significant issue was the timing of the medical examination compared to the alleged incident. The victim took five days to undergo a medical examination after the purported rape occurred. However, the medical findings indicated healed ruptures of the hymen, which the court found improbable to occur within such a short time frame. Additionally, the medical examination did not provide conclusive evidence supporting the prosecution's case, as no seminal material was found on the vaginal swabs. Overall, these discrepancies raised doubts about the credibility of the medical evidence presented by the prosecution.
The court discussed the findings related to the hymen in the medical examination of the victim. It noted that the medical report indicated healed ruptures of the hymen. However, the court found it implausible for such healing to occur within the short timeframe between the alleged incident and the medical examination, which took place five days later. Additionally, the court referenced medical jurisprudence to highlight that hymenal injuries typically take longer to heal completely, casting doubt on the timeline presented by the prosecution. Therefore, the court raised questions about the credibility of the medical evidence concerning the state of the victim's hymen.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Criminal Appeal No195087 of 2018.
Amjad Ali versus
The State etc.
J U D G M E N T
Date of hearing
15.04.2024
The appellant by
Ch. Abdul Mujeeb, Advocate
(Defence counsel)
The State by
Mr. Abdul Rauf Wattoo, DPG &
Miss Rahat Majeed, ADPP
The complainant by
Nemo for the complainant.
====================================
MUHAMMAD AMJAD RAFIQ, J. Allegedly indicted in a
crime of rape with Shagufta Parveen, Amjad Ali, appellant was
prosecuted in case FIR No.537 dated 14.11.2016 registered under
Section 376(i) PPC at Police Station City, Shorkot and vide judgment
dated 30.03.2018 he was convicted and sentenced as under;
“Rigorous imprisonment for fourteen years under section 376 (i)
PPC with fine of Rs.10,000/-, in default thereof to further undergo
six months simple imprisonment.
Benefit of section 382-B Cr.P.C. was extended to him.”
2.
Brief facts of the case are that on 09.11.2016, Shagufta
Parveen (victim) being teacher went to the school and on the same day
at 01:00 p.m. Amjad Ali, accused/appellant sent a message through a
child that she is being called by her mother and brother. When she
came out of the school, accused/appellant took her along with the
pretext that her mother being indisposed is present in the house of
Mst. Shamim Bibi co-accused under the care of her brother. She
responded innocently to such sham arrangement and rushed towards
the house of Shamim Bibi; as she entered in the house, Amjad Ali,
accused/appellant closed the door, Shamim Bibi was appointed at
Crl. Appeal No.195087 of 2018 2
guard, and accused/appellant thereby started committing rape with her
on pistol point; on her hue and cry, PWs attracted and
accused/appellant after seeing them fled away from the place of
occurrence.
3.
Investigation of the case was conducted by Sikandar Hayat
Sub-Inspector (PW-9) who visited the place of occurrence, recorded
statements of witnesses including the victim, prepared un-scaled site
plan (Ex.PE), got the victim medically examined through Nadia
Rasheed 1678/LC who after examination produced before him two
sealed phials along with two sealed envelopes which he took the same
into possession through recovery memo (Ex.PC). On 20.11.2016, he
arrested accused Amjad Ali, interrogated and produced him before the
Area Magistrate for physical remand, recovered pistol 30 bore from his
possession. Later he produced accused/appellant along with Mst.
Shagufta Parveen to the office of P.F.S.A. Lahore where their DNA test
was conducted. On 20.12.2016, Shamim Bibi co-accused joined
investigation and was declared innocent duly verified by DSP. 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 Dr. Ghulam Rasul SMO,
THQ Hospital Shorkot (PW-1) as witness to potency test of the
accused, Dr. Saima Sarwar WMO THQ Hospital Shorkot (PW-2) for
medical examination of victim, Nadia Rashid 1678/LC (PW-3) who
had brought the victim for medical examination, Asad Raza
complainant (PW-5), Shagufta Parveen (victim) PW-6, Muhammad
Ashraf (PW-7), Munir Ahmed (PW-8) and Sikandar Hayat SI (PW-9)
investigating officer. After close of prosecution evidence, the accused
persons were examined under Section 342 Cr.P.C. and appellant while
responding to a question that why this case is against him and why PWs
deposed against him? has stated as under;
“All the PWs are inter se interested, related and are inimical to me. I,
Asad Abbas, complainant and Shagufta Parveen, alleged victim are
residing in the same Basti, i.e., Chah Tharkana Wala. PW-5, PW-6 and I
are neighbourers. Mst. Shagufta Parveen had suspicious character.
Muhammad Ashraf PW-7 and Munir Hussain PW-8 used to visit the
house of Mst. Shagufta Parveen. I being neighbourer of Shagufta
Crl. Appeal No.195087 of 2018 3
Parveen restrained them not to come in the house of Shagufta Parveen
frequently. Asad PW-5, PW-6, PW-7 and PW-8 felt insult and disgraced
and due to the above said grudge, leveled this false and baseless
allegation against me and my co accused who is my sister. PW-7 and
PW-8 are resident of faraway places from the place of occurrence.”
Neither he produced any evidence in defence nor appeared as his own
witness in terms of section 340(2) Cr.P.C., and the trial ended in the
terms as detailed above.
4.
Heard. Record perused.
5.
Admittedly, complainant was not the eye witness of occurrence
who reported the matter with the delay of five days on 14.11.2016 and
stated that Shagufta Bibi did not inform him about the occurrence from
her cell phone on the same day. Though the complainant in his statement
before the Court stated to have reported the matter through application
(Ex.PD) on 12.11.2016 which by itself is after three days of the
occurrence however, FIR was further delayed for two days as registered
on 14.11.2016. In any manner there is apparent delay in reporting the
matter to the police and lodgment of the FIR and no explanation
whatsoever is available on the record for such delay. Thus, the
possibility of due deliberation and consultation by the complainant
before reporting the occurrence to the police cannot be ruled out of
consideration. Reliance is placed on the case reported as “FARMAN
AHMAD Versus MUHAMMAD INAYAT and others” (2007 SCMR
1825), wherein the Supreme Court of Pakistan has held as under;
“The F.I.R. was lodged by the complainant after considerable delay of 17 hours
without explaining the said delay in spite of the fact that complainant had stated in
the written complaint that there was two eye-witnesses at the spot and none of them
informed the police before filing a written complaint by the complainant. 17 hours
delay in F.I.R. provides sufficient time for deliberation and consultation when
complainant has given no explanation for delay in lodging the F.I.R.”
This first loophole in the prosecution case in the form of delay in FIR is
further attended in the light of remaining evidence.
6.
The complainant claimed production of broken string, shirt and
torn Shalwar of victim before the Investigating Officer but Sikandar
Hayat SI (PW-9) controverted such fact by stating that “The complainant
or the victim did not produce the clothes and broken string. I also did not
ask the complainant and the victim to produce the clothes and the broken
Crl. Appeal No.195087 of 2018 4
string”. Prosecution levelled allegation against two accused, Amjad Ali,
appellant and Shamim Bibi; place of occurrence was reportedly house of
Shamim Bibi and allegation against her as of guarding the act of rape is
not possible when it was admitted by the PWs that parents and kids of
Shamim Bibi were residing in the same house; so much so said house
consists of only one room which was at a distance of 35 to 40 feet and
5/7 karams from main gate as deposed by PWs differently, that was the
reason Investigating Officer found Shamim Bibi not involved in the
commission of offence, therefore, she stood acquitted after trial.
7. It was a setback for prosecution that proof for involvement of
Shamim Bibi co-accused (since acquitted) was not available to knit the
story complete, and the place of occurrence was also disputed because
acclaimed eye witnesses Muhammad Ashraf (PW-7) and Munir Ahmad
(PW-8) could not describe or explain it clearly when they deposed that
they do not remember that cots were lying in the room and conceded that
they did not see any other house-hold articles in the room where alleged
occurrence took place. Place of occurrence was further disputed when
investigating officer did not collect anything incriminating from that
place and though PWs claimed hearing of hue and cry of victim when
they reached near the shop of Ghazanfar Bhatti which was opened yet
said Ghazanfar Bhatti whose workshop was shown adjacent to the house
of occurrence was not associated into the investigation nor produced
during the trial. From the above narration of PWs it can safely be held
that neither they were not present at the place of occurrence nor in any
manner witnessed the occurrence.
8.
Medical examination of victim was got conducted and
accused/appellant along with Shagufta victim were also produced before
the office of PFSA Lahore where their DNA test was conducted. Though
it was the prosecution case that accused/appellant took the victim from
the school under the pretext that her mother being indisposed and is
being treated in the house of Shamim Bibi but Investigating Officer did
not join into investigation any Chowkidar, teacher, student or any other
person from the school where victim was teaching on the day of
Crl. Appeal No.195087 of 2018 5
occurrence. He also did not join Ghazanfar Bhatti owner of adjacent
workshop or any labourer working there. It is in the evidence that a
petrol-pump was situated just opposite to the place of occurrence but he
also did not record statement of any person from the said petrol pump,
who could have seen the victim going with the accused/appellant, or
approaching of witnesses at the crime scene later; therefore, prosecution
could not prove the place of occurrence where rape was committed.
9.
It is in the evidence that school was also adjacent to the place
of occurrence and the star witness Shagufta Perveen (PW-6) conceded
during cross-examination that “one security guard remains present in
school timing at the gate of the school.” “The intervening wall of the
school and that of the house of Shamim is about three/four feet high”.
Victim being grownup lady working as teacher in Al-Syed School was
not expected to blindly follow the appellant towards the house of
Shamim Bibi because she herself conceded that no clinic of a doctor or
a nurse was in the house of Shamim Bibi co-accused (since acquitted).
She exaggerated during cross-examination that accused/appellant
caught hold her from the gate of the school, dragged her towards the
house of Shamim Bibi and in that process she received abrasions on the
hands and other parts of her body during the scuffle but admitted that
she did not show such abrasions to WMO at the time of her medical
examination. As highlighted above, alleged place of occurrence was
adjacent to school, workshop of Ghazanfar Bhatti and opposite to a
petrol pump, therefore, it cannot be expected that one could drag the
victim without notice or alarm to anyone around. The fact of dragging
has not been deposed by any other witness, therefore, this expression
was created by the victim to earn a favour that she was helpless against
the masculine aggression. Her contention about abrasions on her body
during such scuffle could not be materialized through the medical
opinion. Therefore, she is not truthful witness; however, her claim of
resistance/scuffle with accused/appellant could have been taken as a
corroborative effect if her complete medical examination throws some
other form of aggression on or around the perineal area, which was
missing.
Crl. Appeal No.195087 of 2018 6
10.
The occurrence was of 09.11.2016, victim took five days to
appear before the doctor for her medical examination on 14.11.2016.
Dr. Saima Sarwar (PW-2) examined her and expressed her opinion with
respect to examination of cloth as “No cut, no tear and no hole etc., was
present on the clothes. No blood, no urine or vomit was present”. For
local/specific examination observation was that “No bruise, abrasion,
laceration or other type of injury was present. Vagina admitted one
finger. Old healed and hymen was ruptured.” But the doctor withheld
the final opinion and made it conditional to DNA report. During crossexamination doctor has deposed that she has not received the reports of
DNA from PFSA Lahore, and also stated that she cannot tell exact
period of “simple healed rupture of hymen” and “old healed rupture of
hymen” and also conceded that prior to 14.11.2016 victim did not
appear before her. According to research by National Library of
Medicine, National Center for Biotechnology time for healing Hymen
was focused as follows;
“The hymenal injuries healed at various rates and except for the deeper
lacerations left no evidence of the previous trauma. Abrasions and
“mild” submucosal hemorrhages disappeared within 3 to 4 days, whereas
“marked” hemorrhages persisted for 11 to 15 days. Only petechiae and
blood blisters proved to be “markers” for determining the approximate
age of an injury. Petechiae resolved within 48 hours in the prepubertal
girls and 72 hours in the adolescents. A blood blister was detected at 34
days in an adolescent.”
Above study shows that only mild submucosal hemorrhages
disappeared within 3 to 4 days, whereas “marked” hemorrhages
persisted for 11 to 15 days; therefore, if the rape was committed with
the victim forcibly, then in five days hymen should not have been
healed up. Reliance is also placed on case “Chandran vs State of
Kerala” of the High Court of Kerala at Ernakulam, wherein it has been
held that:-
“The authorities on Medical Jurisprudence categorically state that
it will take a minimum of a week’s time for a tear of hymen to
heal completely. The relevant portion of Dr. K.S. Narayana
Reddy’s Medical Jurisprudence and Toxicology reads thus:
“The semilunar hymen usually ruptures on both sides. In
the case of annular hymen, several tears are produced.
Soon after the act, the margins of the torn hymen are sharp
Crl. Appeal No.195087 of 2018 7
and red which bleed on touch, the tissues round about
them are tender. After 3 to 4 days, the edges of tear are
congested and swollen, which completely heal in a week.”
Medical Jurisprudence and Toxicology (Law Practice & Procedure) in
3
rd Edition 2010 by Dr. K.S. Narayan Reddy mentions the causes of
rupture of hymen as follows;
Causes of Rupture of Hymen: (1) An accident, e.g., a fall on a
projecting substance or by slipping on the furniture or fence or while
playing at seesaw. In these cases, tearing of the perineum occurs and
usually injuries on other parts of the body will be seen. Such hymenal
tears are never associated with abrasion and bruising of the margins.
Accidental straddle injuries usually involve periurethral tissues, labia,
hymen and mons. Separation of things forcibly in children will not rupture
the hymen, unless perineum is ruptured. Hymen does not rupture by
riding, jumping, dancing, etc. (2) Masturbation, especially with some large
foreign body. Hymen is not injured in most cases because manipulation is
usually limited to the parts anterior to the hymen. Labia minora and
clitoris are enlarged in such cases. The vaginal orifice may be dilated and
edges of the hymen may show scratches. (3) Surgical operation and
gynaecological examination. (4) Foreign body, e.g., sola pith introduced
into vagina for rendering very young girls fit for sexual intercourse (aptae
viris). Vaginal stretching through the insertion of increasingly larger
objects (sex toys, vegetables or household objects) may be performed. (5)
Ulceration from diphtheria, fungus or other diseases. (6) Scratching due to
irritation of the parts from lack of cleanliness. (7) Sanitary tampon may
sometimes rupture the hymen.
In the light of above, the story put forth by the prosecution with respect
to commission of rape with the victim falls to the ground, because
medical examination of victim after five days shows ‘old healed rupture
of hymen’ which is not possible in five days. More so, Sikandar Hayat
SI (PW-9) conceded during cross-examination that PFSA report was
received with the opinion that no seminal material was found on the
vaginal swabs. Therefore, no support to prosecution story is available in
the form of medical evidence.
11.
In the circumstances, the case of the prosecution case filled
with fraught, and flaws, seem result of padding and plantation cannot
be termed as having ample evidence to prove the case beyond
reasonable doubt, therefore, charge in this case against the appellant
fails. The Supreme Court of Pakistan in case reported as “Najaf Ali
Shah vs. The State” (2021 SCMR 736) has held as under;
Crl. Appeal No.195087 of 2018 8
“It is well settled principle of law that for the accused to be afforded
this right of benefit of the doubt it is not necessary that there should
be many circumstances creating uncertainty and if there is one
doubt, the benefit of the same must got to the petitioner.”
Therefore, in the given circumstances, I have no option except to allow
the titled appeal, resultantly, the same is ALLOWED, the conviction
and sentence of the appellant is set aside and he is acquitted of the
charge by extending him benefit of doubt. He is in custody; he be
released forthwith if not involved in any other criminal case. The case
property, if any, be disposed of in accordance with law and the record of
the learned trial Court be sent back immediately.
(Muhammad Amjad Rafiq)
Judge
Signed on: 26.04.2024
Approved for reporting
Judge
Certainly, here are some Pakistani case laws related to rape cases:
1. **Muhammad Khalid v. The State (2015)**:
In this case, the Lahore High Court emphasized the importance of corroborative evidence in rape cases. The court held that while the testimony of the victim is crucial, it should be corroborated by other evidence such as medical reports, eyewitness accounts, or circumstantial evidence to establish guilt beyond a reasonable doubt.
2. **Muhammad Sarfraz v. The State (2013)**:
The Lahore High Court, in this case, reiterated the principle that the testimony of the victim alone can be sufficient to establish the guilt of the accused in a rape case, provided it is found to be credible and trustworthy. However, the court also emphasized the need for caution and scrutiny in evaluating the victim's testimony, especially when it is uncorroborated.
3. **Abdul Rauf v. The State (2019)**:
In this case, the Islamabad High Court underscored the importance of timely and prompt investigation in rape cases. The court emphasized that delays in investigation can compromise the collection of crucial evidence and affect the outcome of the trial. Therefore, law enforcement agencies were urged to conduct thorough and expeditious investigations in rape cases to ensure justice for the victims.
case laws highlight the legal principles and considerations involved in rape cases, including the evaluation of evidence, the credibility of witness testimony, and the role of timely investigation in securing convictions.
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