2026 P Cr. L J 526

 2026 P Cr. L J 526

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan and Sardar Akbar Ali, JJ

HARIS ALI---Appellant

Versus

MUHAMMAD SHABBIR and another---Respondents

Criminal Appeal No. 32 of 2024, heard on 29th May, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 367-A, 376(iii) & 377-B---Juvenile Justice System Act (XXII of

2018), S. 9---Anti-Rape (Investigation and Trial) Act (XXX of 2021),

Sched. II---Rape, unnatural offence---Appreciation of evidence---

Juvenile offender---Medical evidence contradicting the ocular

account---Accused was charged that he committed rape with the

minor daughter of the complainant---In the present case, victim was

star witness of the prosecution---In her deposition, victim reiterated

her stance as narrated in the crime report and alleged that the

appellant had committed rape with her---According to the contents

of FIR, the complainant had not seen the appellant while committing

rape with his daughter/victim---In his examination-in-chief,

complainant endorsed the story narrated in the FIR that at about

03:00 p.m. when he and his wife were sitting in their house, victim

on her return from school told them the story of rape committed by

the appellant but in his cross-examination, complainant stated

otherwise---Complainant stated that on her return, victim firstly told

the incident to her mother---Complainant was not present when

victim told the incident to her mother---Other witness of the ocular

account as mentioned in the FIR was wife of the complainant and

mother of the victim but she was given up by the prosecution,

therefore, it was found that the testimony of complainant was not

direct and had no evidentiary value thus was thrown out of

consideration---In the instant case, two Women Medical Officers

medically examined the victim---From the perusal of evidence of

both the Woman Medical Officers, it seemed that severe dents had

been put in the case of prosecution---Said Woman Medical Officers

had categorically deposed that after examining the victim girl, they

were of the opinion that the victim was not subjected to sexual

penetration---Appeal against conviction was allowed, in

circumstances.

(b) Criminal trial Minor victim---Cases of sexual offences---Scope---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 rely on the

testimony of the victim of a sexual assault to convict the accused---

However, the strict condition for said testimony is that the same

shall reflect that it is independent, unbiased and straightforward to

establish the accusation against the accused---If the Court finds it

difficult to accept victim's version, it may seek corroboration from

some evidence which lends assurance to her version.

(c) Penal Code (XLV of 1860)---

----Ss. 367-A, 376(iii) & 377-B---Juvenile Justice System Act (XXII of

2018), S. 9---Anti-Rape (Investigation and Trial) Act (XXX of 2021),

Sched. II---Rape, unnatural offence---Appreciation of evidence---

Juvenile offender---Contradictions in the statement of police witnesses--

-Accused was charged that he committed rape with the minor

daughter of the complainant---As per statement of Lady Constable,

sealed samples of clothes and swabs of the victim were handed over

to her by the Woman Medical Officer, which she handed over to

Investigating Officer of the case on the same day who took the same

into possession through recovery memo. but Woman Medical Officer

in her statement nowhere stated that she ever handed over any

clothes or swabs to Lady Constable---Thus, it appeared from the said

deposition of Woman Medical Officer that she did not hand over any

sealed parcel to Lady Constable---However, Investigating Officer of

the case in his examination-in-chief deposed that on 14.01.2023 after

medical examination of the victim, Lady Constable handed over to

him two sealed parcels said to contain swabs and clothes of the victim

which he took into possession vide recovery memo. and handed over

the same to the Moharrar Malkhana on the same day i.e. 14.01.2023---

If the said sealed parcels were taken into possession by Investigating

Officer of the case on 14.01.2023 through recovery memo. whereas the

appellant was arrested on the same day, then he was under obligation

to transmit the said samples to the Office of Forensic Science Agency

intact without any lapse of time on the same day i.e. 14.01.2023 but he

after collecting the sealed parcels from Muharrar of the Malkhana on

16.01.2023, after two days of the occurrence, proceeded to the Office

of Forensic Science Agency along with victim, her father as well as the

accused/appellant for DNA analysis---After going through the said

statements of the witnesses, it was established on record that the

sealed parcels containing swabs and clothes of the victim were sent to

the office of the Forensic Science Agency after arrest of the appellant,

which fact created dent in the prosecution case---Appeal against

conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)---

----Ss. 367-A, 376(iii) & 377-B---Juvenile Justice System Act (XXII of

2018), S. 9---Anti-Rape (Investigation and Trial) Act (XXX of 2021),

Sched. II---Rape, unnatural offence---Appreciation of evidence---

Juvenile offender---Delay in sending the DNA sample---Accused was

charged that he committed rape with the minor daughter of the

complainant---Analysis of DNA Report showed that the samples were

received in the office of Forensic Science Agency on 16.01.2023 with

a delay of two days with no explanation, which made the positive

report of the Forensic Science Agency cloudy and it lost its credence-

--Besides that, the safe custody of the samples from the date of

drawing and securing the same till onward transmission and receipt

by the office of Forensic Science Agency had also not been

established by the prosecution, which adversely effected the case of

the prosecution---Appeal against conviction was allowed, in

circumstances.

Tanvir v. The State PLD 2020 Lah. 774 and Atta-ul-Mustafa v. The

State and another 2023 SCMR 1698 rel.

(e) Penal Code (XLV of 1860)---

----Ss. 367-A, 376(iii) & 377-B---Juvenile Justice System Act (XXII of

2018), S. 9---Anti-Rape (Investigation and Trial) Act (XXX of 2021),

Sched. II---Criminal Procedure Code (V of 1898), S. 164---Rape,

unnatural offence---Appreciation of evidence---Juvenile offender---

Statement of victim recorded as per police instructions---Accused

was charged that he committed rape with the minor daughter of the

complainant---Record transpired that the occurrence allegedly took

place on 14.01.2023 at 03:00p.m. whereas the report was lodged by

the complainant on the same day at 08:00p.m., while the statement

of the victim under S.164, Cr.P.C. was recorded before the Court of

the Judicial Magistrate on 17.01.2023 i.e. after three days of the

occurrence---Perusal of statement of victim showed that she in her

cross-examination admitted that she deposed as per instructions of

police---Thus, statement of victim recorded under S.164, Cr.P.C.,

could not be relied upon as being trustworthy and worth reliance---

Appeal against conviction was allowed, in circumstances.

(f ) Criminal trial---

----Benefit of doubt---Principle---In order to extend benefit of doubt

to an accused person, it is not necessary that there should be several

circumstances creating doubt, rather one reasonable doubt is

sufficient to acquit an accused.

Masood Alam and another v. The State and others 2024 SCMR 156;

Abdul Qadeer v. The State 2024 SCMR 1146 and Muhammad Imtiaz Baig and another v. The State through Prosecutor General, Punjab

Lahore and another 2024 SCMR 1191 rel.

Ms. Talat Nisar for Appellant.

Naeem Akbar, Deputy Prosecutor General and Naveed Ahmad,

Deputy District Public Prosecutor for the State.

Complainant in person.

Date of hearing: 29th May, 2025.

JUDGMENT

SARDAR AKBAR ALI, J.---Haris Ali, accused/appellant being juvenile

faced trial before learned Additional Sessions Judge/Judge Special

Court Anti-Rape (GBV)/Judge Juvenile Court, Attock in case FIR No.10,

dated 14.01.2023 under sections 367-A, 376(iii) and 377-B, P.P.C

registered at Police Station Rangoo, District Attock and on conclusion

of trial vide judgment dated 13.12.2023 he was convicted and

sentenced as under

Under Section 367-A, P.P.C. to undergo 10 years R.I. with fine of

Rs.50,000/- and in default whereof to further undergo four

months Simple Imprisonment;

Under Section 376-(iii), P.P.C. to undergo life imprisonment with fine

of Rs.50,000/- and in default whereof to further undergo four

months Simple Imprisonment:

Under Section 17 of the Anti-Rape (Investigation and Trial) Act, 2021,

he was directed to pay portion of 50% i.e. Rs.50,000/- of the fine

amount imposed upon him to the victim Bisma Noor as

compensation.

Benefit of Section 382-B, Cr.P.C. was also extended to the convict/

appellant and all the sentences were ordered to run

concurrently. Appellant was held entitled to all the concessions

under the Juvenile Justice System Act, 2018 applicable for

undergoing the punishment of imprisonment until the attains

the age of 18 years.

2. Succinctly stated the facts of the prosecution case as disclosed by

Shabbir Ahmed, complainant (PW-11) in the FIR (Exh.PM) through his

written application (Exh.PL/1) are that his daughter Bisma Noor, (PW-

13) aged about 6/7 years was student of Class-1 in Government Girls

Primary School, Daman and on 14.01.2023 at about 03:00 p.m., Shabbir

Ahmed, complainant (PW-11) along with his wife Saadia Bibi (given up

PW) was present in his house when his daughter Bisma Noor entered

the house while weeping and when complainant s wife Saadia Bibi

checked the Pajama of Bisma Noor, she noticed blood on her Pajama as well as on her leg. On asking, Bisma Noor told that when she was on

the way to home, Haris Ali, appellant took her to an orange orchard by

placing hand on her mouth and after removing her Pajama committed

rape with her.

3. After registration of case and on conclusion of investigation

report under section 173, Cr.P.C. was submitted, the accused/appellant

when charge sheeted, denied the charge, pleaded innocence and

claimed to be tried, whereupon, the prosecution examined 13

witnesses and after completion of prosecution evidence, the

accused/appellant when examined under section 342 Cr.P.C, neither

opted to appear in the witness box as required by section 340(2) Cr.P.C.

nor produced documentary evidence in his defence and the trial

ended in the terms, as detailed above.

4. We have heard learned counsel for the appellant as well as

learned Law Officers for the State and vetted the record with utmost

muse and care.

5. The entire edifice of the prosecution case rests upon the

testimonials of Shabbir Ahmad, complainant (PW-11), Bisma Noor,

victim (PW-13), Dr. Syeda Anum Zahra (PW-9), Dr. Saliha Ghias,

Gynecologist (PW-10), Muhammad Aamir Khalid,

Inspector/Investigating Officer (PW-6), DNA Serology Analysis Report

(Exh.PR/1-3) and last but not least statement of Bisma Noor, victim

(Exh.PQ) recorded under section 164 Cr.P.C. by the Judicial Magistrate

Section-30, Attock whereas the remaining witnesses were formal in

nature.

6. In the present case, Bisma Noor, victim who appeared as (PW-13)

is star witness of the prosecution. In her deposition, she reiterated her

stance as narrated in the crime report and alleged that the appellant

had committed rape with her. 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 rely 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 seeks corroboration from

some evidence which lends assurance to her version.

7. So far as the testimony of Shabbir Ahmad, complainant (PW-11) is

concerned, according to the contents of FIR (Ex.PM) he had not seen

the appellant while committing rape with his daughter/victim Bisma

Noor and in his examination-in-chief, he endorsed the story narrated in the FIR (Ex.PM) that at about 03:00 p.m. when he and his wife were

sitting in their house, Bisma Noor, victim (PW-13) on her return from

school told them the story of rape committed by the appellant but in

his cross-examination, he stated otherwise, the relevant extract is

reproduced hereunder:

Bisma on her return, firstly told the incident to her mother. I was

not present when she told the incident to her mother.

8. The other witness of the ocular account as mentioned in the FIR

(Ex.PM) was Mst. Saadia, wife of the complainant and mother of the

victim but she was given up by the prosecution, therefore, we have

found that the testimony of Shabbir Ahmad, complainant (PW-11) is

not direct and has no evidentiary value thus is thrown out of

consideration.

9. Of course, the allegation levelled against the accused/ appellant is

of very serious nature and the offence allegedly committed by him is

of very heinous nature where modesty of a minor girl aged about 6/7

years has been destroyed/ spoiled. However, in view of the gravity of

the alleged offence, it is to be examined with utmost care and cautious

as to whether unimpeachable evidence is available with the

prosecution to declare the appellant guilty of the alleged offence. In

our view, the most important evidence in such like cases is that of

Woman Medical Officer who examines the victim girl/lady and her

medical report. In the instant case, the evidence of Syeda Anum Zahra,

Woman Medical Officer (PW-9) who allegedly examined the victim girl

Bisma Noor on the day of alleged incident, in her examination-in-chief,

inter alia, deposed as under:-

Opinion

According to PFSA Report Serial No.2023-577777-DNA-086040.

Keeping in view findings of the examination and PFSA report

mentioned as above. It has been concluded that attempt of

sexual assault has been committed but as no bruises, laceration

and injuries were found. On perineal region labia majora were

healthy, hymen was intact, sexual penetration has not been

attempted. However, circumstantial evidences are very

important in this regard. Partial DNA profile obtained from

Epithelial-Fraction of item No.4.2 (stain section taken from the

trouser) is a mixture of at least two individual, Haris Ali and

Bisma Noor, cannot be excluded as being contributor to this

DNA mixture profile.

10. Bisma Noor, victim was also medically examined by Dr. Saliha

Ghias, Gynecologist (PW-10) on 20.01.2023 after six days of the alleged

occurrence who in her examination-in-chief observed as under: History given by mother and child of anal intercourse. Child was

stable well oriented in time and place. No bruises, scar marks

and laceration seen, no blood spot seen at perineal area at the

time of examination and hymen was intact.

11. From the perusal of evidence of both the Woman Medical Officers,

it seems that severe dents have been put in the case of prosecution. They

have categorically deposed that after examining the victim girl they were

of the opinion that the victim was not subjected to sexual penetration.

12. So far as two sealed samples of clothes of the victim and swabs

of the victim, which as per statement of Kinza Ali, 546/LC (PW-3) were

handed over to her by the Dr. Syeda Anum Zehra, Woman Medical

Officer (PW-09), which she (PW-3) handed over to Muhammad Aamir

Khalid, Inspector/ Investigating Officer of the case on the same day

who took the same into possession through Recovery Memo. (Exh.PD)

but Dr. Syeda Anum Zehra, Woman Medical Officer while appearing as

(PW-09), in her statement nowhere stated that she ever handed over

any clothes or swabs to Kinza Ali 546/LC (PW-03). Thus, it appears

from the above said deposition of Dr. Syeda Anum Zehra, Woman

Medical Officer (PW-09) that she did not hand over any sealed parcel

to Kinza Ali 546/LC (PW-03). However, Muhammad Aamir Khalid,

Inspector/ Investigating Officer of the case (PW-06) in his examination-

in-chief deposed that on 14.01.2023 after medical examination of the

victim, Kinza Ali, Lady constable handed over to him two sealed

parcels said to contain swabs and clothes of the victim which he took

into possession vide recovery memo. (Exh-PD) and handed over the

same to the Moharrar Malkhana on the same day i.e. 14.01.2023. He in

his examination-in-chief further stated that:

On 16.01.2023, I collected two sealed parcels of swabs and clothes of

the victim from Moharrar Malkhana and recorded his statement

under section 161 Cr.P.C. I also took the victim along with her

father/complainant and accused to the PFSA, Lahore for DNA

test on official vehicle along with Ghous Shah Constable, Ejaz

Constable and driver Kamran Constable. I submitted the parcels

in the office of PFSA, Lahore intact. The accused and victim were

undergone to the test of DNA.

13. The above facts lead us to hold that if the aforesaid sealed

parcels were taken into possession by Muhammad Aamir Khalid,

Inspector/ Investigating Officer of the case (PW-06) on 14.01.2023

through recovery memo. (Exh.PD) whereas the appellant was arrested

on the same day, then he was under obligation to transmit the said

samples to the Office of PFSA intact without any lapse of time on the

same day i.e. 14.01.2023 rather he after collecting the sealed parcels

from Muharrar of the Malkhana on 16.01.2023, after two days of the occurrence proceeded to the Office PFSA, Lahore along with victim,

her father as well as the accused/ appellant for DNA analysis. After

going through the aforesaid statements of the PWs, it is established on

record that the sealed parcels containing swabs and clothes of the

victim were sent to the office of the PFSA after arrest of the appellant,

which fact creates dent in the prosecution case

14. Analysis of DNA Report (Exh.PR/1-3) that the samples were

received in the office of PFSA on 16.01.2023 with a delay of two days

with no explanation, which makes the positive report of the PFSA,

cloudy and losing its credence. Besides, above, the safe custody of the

samples from the date of drawing and securing the same till onward

transmission and receipt by the office of PFSA has also not been

established by the prosecution, which adversely effects the case of the

prosecution. Reliance in this regard can be placed to the case of Tanvir

v. The State (PLD 2020 Lahore 774).

Guidance is also sought from an elaborated judgment of the Hon ble

Supreme Court of Pakistan reported as Atta-ul-Mustafa v. The State

and another (2023 SCMR 1698), in which it has been held:

Even otherwise, the DNA report cannot be treated as primary

evidence and can only be relied upon for the purposes of

corroboration and as stated above the evidence of the victim is

not of such character, which can solely be relied upon to sustain

conviction of the petitioner.

15. The rest of the evidence upon which the prosecution has relied

upon is the statement of Bisma Noor, victim recorded under section

164 Cr.P.C. The record transpires that the occurrence allegedly took

place on 14.01.2023 at 03:00 p.m. whereas the report was lodged by the

complainant on the same day at 08:00 p.m., while the statement of the

victim under section 164, Cr.P.C. was recorded before the Court of the

Judicial Magistrate on 17.01.2023 i.e. after three days of the

occurrence. She in her examination-in-chief stated that:

The alleged abductee also went ahead by deposing in her cross-

examination that: The perusal of her above statement shows that she in her cross-

examination, admitted it correct that she deposed as per instructions

of police. Thus, her statement recorded under section 164 Cr.P.C.

cannot be relied upon being trustworthy and worth reliance.

16. It is re-iterated that sole statement of victim can be made basis

for conviction or acquittal of the accused. However, perusal of

material available on record in shape of ocular account, medical

evidence, DNA report, statement of the victim under section 164 Cr.P.C

as well as other material shows that sole statement of the victim

cannot be relied upon and made basis for conviction of the accused/

appellant when the aforesaid pieces of evidence of the prosecution do

not support her version, while the rest of the evidence which is

supportive in nature only.

17. After meticulous recital and critical analysis of the record, we

have irresistibly arrived at the conclusion that the case of the

prosecution is highly doubtful and the prosecution has failed to prove

the indictment. Moreover, the evidence brought against the appellant

has been found to be contradictory, untrustworthy and non-confidence

inspiring, therefore, the reasons and conclusions drawn by the learned

trial Court being found on improper evidence cannot be allowed to

hold field and as such merits to be set at naught.

18. It is trite that in order to extend benefit of doubt to an accused

person, it is not necessary that there should be several circumstances

creating doubt, rather one reasonable doubt is sufficient to acquit an

accused. Reliance is placed on the cases reported as Masood Alam and

another v. The State and others (2024 SCMR 156) and Abdul Qadeer v.

The State (2024 SCMR 1146) and Muhammad Imtiaz Baig and another

v. The State through Prosecutor General, Punjab, Lahore and another

(2024 SCMR 1191).

19. As a corollary, Criminal Appeal No.32 of 2024 is allowed and the

accused/appellant is acquitted of the charge, he shall be released

forthwith if not required in any other case. The case property, if any,

shall be disposed of in accordance with law and the record of the trial

Court be sent back immediately.

JK/H-11/L Appeal allowed.