ATIF ZAREEF vs State S — 2021 PLD 550 SUPREME-COURT

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ATIF ZAREEF VS State S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape---Sexual history/character of rape victim---Relevancy---"Two-finger test" (TFT) or "virginity test"---Constitutionality and legality---In rape cases sexual history/character of rape 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 sexual assault of rape---Reporting sexual history of a rape 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 sexual history of rape victim and constitutionality of two-finger test" (TFT) or "virginity test" stated. Citation Name: 2021 PLD 550 SUPREME-COURTBookmark this Case ATIF ZAREEF VS State S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape cases---Use of expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for alleged rape 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 rape was not proved against the accused, and that such expressions were unconstitutional and illegal. Citation Name: 2021 PLD 550 SUPREME-COURTBookmark this Case ATIF ZAREEF VS State S. 376(2)---Gang rape---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 rape 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. Citation Name: 2021 PLD 550 SUPREME-COURTBookmark this Case ATIF ZAREEF VS State S. 376(2)---Gang rape---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 rape 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 rape 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. Citation Name: 2021 PLD 550 SUPREME-COURTBookmark this Case ATIF ZAREEF VS State 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 rape 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 rape 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 sexual relation of the complainant with the accused when the accused took the defence, and intended to prove, that the complainant consented to the sexual 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 sexual offence relating to any sexual 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. Citation Name: 2021 PLD 550 SUPREME-COURTBookmark this Case ATIF ZAREEF VS State 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 rape victim suffered psychologically and emotionally.

ATIF ZAREEF vs State S — 2021 PLD 550 SUPREME-COURT

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