KAMRAN vs State S — 2022 PLD 645 LAHORE-HIGH-COURT-LAHORE

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KAMRAN VS State S. 376---Qanun-e-Shahadat (10 of 1984), Art. 19---Rape---Relevancy of facts forming part of some transaction---Res gestae---Scope---Accused, a security guard at school, was indicted for rape with a six years' old student---Victim had made her statement with innocent precision and sequence by explaining as to when, where, how and what had happened to her---Victim had exhibited noticeable maturity---Cross-examination by defence had not been able to shatter the testimony of the victim on material aspects---Victim had categorically denied the suggestions about nominating the accused on the asking of her father and also concoction of story---Mother of victim, though, was not the witness of the crime but she had toed the line of victim about commission of rape with her---Mother's statement had relevance and could be considered as res gestae evidence per force of Article 19 of the Qanun-e-Shahadat, 1984---Medical evidence was also a part of res gestae under the principle of contemporaneous physical condition which was first observed by mother of the victim and then by doctor whose statement was admissible with respect to injury and not for identifying accused---Defence though keeping the accused aside threw a hint of consented act by someone else---Factor of consent was immaterial when the victim was below the age of consent as mentioned in S. 375 of P.P.C.---Prosecution had proved its case against the accused beyond shadow of reasonable doubt, a standard requisite to sustain a criminal charge---Appeal against conviction was dismissed, in circumstances. S. 376---Rape---Force---Threat of injury---Scope---Meaning of force in relation to rape need not necessarily indicate physical restraint by the man, though this is most common; even the fear of such violence is sufficient for an act of rape to succeed. S. 376---Qanun-e-Shahadat (10 of 1984), Art. 22---Rape---Facts necessary to explain or introduce relevant facts---Identification parade---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---There was a stern stance that victim did not know the name of accused nor she told his name to her mother, therefore, identification of accused was a challenge for prosecution particularly when no identification parade was held---Held; it was not a case where such exercise would have been necessary, because the victim had nominated two specific persons including accused by stating that he committed rape with her, whereas, co-accused (since acquitted) was also named with a role of standing outside the washroom, both were admittedly the employees of the same school and further it was brought on record during cross-examination of victim's mother that victim had also identified them in the school---Victim was well aware that the accused was employee of school and the man who succeeded to come so close to her body, notching and ravishing her could not expected to be forgotten by the victim, for which a formal identification was not necessary. art. 19---Relevancy of facts forming part of some transaction---Scope---Res gestae rule in sex crimes is the same as in other criminal actions, the rule should be applied more liberally in the case of children. S. 11---Clarification in case of certain opinion---Scope---Where prosecution feels any doubt, it should immediately resort to calling the concerned expert as witness before the court for explanation or apply to the court under the provisions of Punjab Forensic Science Agency Act, 2007 for clarification of report. art. 22---Facts necessary to explain or introduce relevant facts---Identification parade, requirement of---Scope---Difference exists between identification and recognition; to acknowledge acquaintance with or perceive someone previously known are the forms of recognition---Such is common understanding and acknowledgement that many people in life by their profession or the act they perform at work place or in neighbourhood but their names or parentage, is not known, however, they are well canvassed in mind for whose identification a formal parade is unnecessary---Identification is proved from the evidence of link of witness with such person. S. 376---Rape---Attempted rape---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Defence alleged that the doctor had wrongly observed that hymen was freshly torn; reason for objection, the counsel unfolded, that medical examination was conducted after three days of the occurrence, that hymen in children was very deep and in such an haphazard or chance occurrence it was not believable that penal insertion could be possible up to vaginal canal attracting the very requirement of penetration; therefore, it could at the most be regarded as an attempt to commit rape---Medical jurisprudence on the subject revealed that soon after the act, the torn margins are sharp and red, and bleed on touch---Even when examined after 3 to 4 days of offence, the edges of laceration are congested and swollen---Surrounding tissues are also swollen and tender---In case of incomplete penetration, the only signs which may be seen are reddening and inflammation of vestibule within the labia or a small tear of the posterior fourchette---There may also be contusion of the hymen---Findings of doctor tallied with Medical Jurisprudence, therefore, full penetration was not necessary, a laceration 1 × 1 cm reddish in colour on right labial fold was sufficient to attract the offence of rape on the touchstone of penetration---Such was a case of complete rape and not an attempted rape as alleged by the defence, in circumstances. S. 376---Rape---Scope---Absence of sperms does not mean that rape has not been committed. S. 376---Criminal Procedure Code (V of 1898), S. 154---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape---Information in cognizable cases---Delayed FIR---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Contention of accused was that matter was reported to the police with a delay of three days---Parents of the victim after knowing about the occurrence definitely would have been under mental stress and it was also quite normal that they would have given deep thought to all pros and cons, and ultimately when they got the victim medically checked up and the doctor also opined that the victim had been raped and it was a police case, only then as a last resort they would have approached the police to lodge the complaint---As such, in the peculiar facts and circumstances of the case, the argument of accused with regard to delay in reporting the matter to the police, had no worth to be considered or to draw an inference adverse to the prosecution case. S. 376---Qanun-e-Shahadat (10 of 1984), Art. 19---Rape---Relevancy of facts forming part of some transaction---Res gestae---Spontaneous declaration---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Accused objected that deposing the fact of rape by the victim to her mother was not spontaneous because such statement was made after about three hours of the occurrence and there was sufficient time to concoct the story---Held; in order for the statement to be sufficiently 'spontaneous' it had to be so closely associated with the event which had excited the statement that it could be fairly stated that the mind of the declarant was still dominated by the event---Court must be satisfied that the event which provided the trigger mechanism for the statement was still operative---Moment victim had reached the home, she had expressed the trauma to her mother which was still alive and dominating her thoughts---Appeal against conviction was dismissed, in circumstances.

KAMRAN vs State S — 2022 PLD 645 LAHORE-HIGH-COURT-LAHORE

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