Bilal Ahmad vs The State

Stereo. H C J D A 38.

Judgement Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Appeal No. 859 of 2021 (Bilal Ahmad v. The State)

JUDGEMENT

Date of hearing: 10.04.2025

Appellant by: Mr. Nasar Ullah Qureshi, Advocate.

State by: Mr. Riaz Ahmad Sahgla, Additional Prosecutor General.

Complainant by: Malik Tanvir Sajid, Advocate.

MUHAMMAD JAWAD ZAFAR, J.: Through this appeal, appellant Bilal Ahmad (“appellant”) has assailed the judgement dated 24.11.2021 passed by learned Sessions Judge/Special Juvenile Court, Rajanpur (“Trial Court”) in crime report bearing FIR No. 252/2021 dated 09.05.2021, for offence under Section 376 of the Pakistan Penal Code 1860 (“PPC”), registered with Police Station Kot Mithan, District Rajanpur (“crime report” or “FIR”), whereby the appellant was sentenced and convicted, as under:

Bilal Ahmad:

Imprisonment for life under Section 376(iii) of the PPC along with fine of PKR. 50,000/-. In case of default of fine, simple imprisonment for three months. Benefit of Section 382-B of the Code extended.

2.The prosecution case, as deposed by complainant Muhammad Zaman Khan (PW-2) is that on 09.05.2021, at 05:00 p.m., he returned home when his wife informed him that his daughter went to play outside and did not return back. Due to which the complainant (PW-2), along with Rab Nawaz (given up as won over) and Abid Hussain (PW-3), commenced search, during the course of which, they heard the hue and cry of the minor daughter (PW-6).1 Note: Section 26 of the Anti-Rape (Trial and Investigation) Act 2021 (“Anti-Rape Act” or “Act of 2021”) prohibits disclosing the identity of victims, and whoever contravenes Section 26 of the Act of 2021 “shall” be punished under

(Bilal Ahmad v. The State)

They attracted to the spot and witnessed the appellant committing commission of rape with the minor daughter (PW-6) and the appellant, on sight of the aforementioned witnesses, decamped from place of occurrence. Minor daughter (PW-6) disclosed that the appellant on the pretext of offering watermelon, took her to bushes/jungle and committed ziadti/rape with her.

3.After completion of investigation, report/challan under Section 173 of the Code of Criminal Procedure 1898 (“Code” or “Cr.P.C”) was submitted before the learned Trial Court, which proceeded to frame formal charge against the appellant, to which he pleaded not guilty and claimed trial.

4.Prosecution, in order to prove its case, produced as many as seven witnesses. Ocular account was furnished by complainant Muhammad Zaman (PW-2); Abid Hussain (PW-3); and, child victim (PW-6); Dr. Saima Zafar WMO (PW-5) medically examined the child victim (PW-6) while Dr. Khubaib Zulfiqar (PW-1) conducted the potency test of appellant under Section 53-A of the Code; and, investigating officer Muhammad Amin appeared and deposed as PW-7. The remaining prosecution witnesses were more or less formal in nature. Prosecution gave up Rab Nawaz as being won over and closed prosecution evidence.

5.Thereafter, statement under Section 342 of the Code of the appellant was recorded, wherein he professed his innocence. Appellant opted not to appear as his own witness under Section 340(2) of the Code, nor did he produce any defence evidence. On conclusion of trial, the learned Trial Court found the case against the appellant to have been proved, thus, convicted and sentenced him as detailed above.

6.Learned counsel for the appellant averred that there was delay in the registration of FIR, which shattered the sanctity of the same; there were material contradictions between the witnesses of the ocular account; child victim (PW-6) was not a competent witness; appellant was not capable of performing sexual activities due to his tender age; further argued that DNA report is negative; and, the appellant was falsely implicated due to pendency of civil suit between the parties.

Section 376-A of the PPC. Consequently, initials of the name of the victim are used to conceal her identity and protect her.

(Bilal Ahmad v. The State)

7.On the other hand, the learned Additional Prosecutor General vehemently supported the impugned judgement and contended that the crime report was promptly lodged by the complainant (PW-2); witnesses of the ocular account remained consistent on material particulars of the prosecution case; rationality test of child victim (PW-6) was conducted and she was a competent witness who pointed her finger towards the appellant as her assailant; and, lastly averred that mere negative DNA forensic report did not hinder prosecution case, therefore, criminal appeal of the appellant should be dismissed while upholding the conviction and sentence.

8.Arguments heard and record perused with the able assistance of the learned counsel for the appellant, learned counsel for the complainant and the learned Additional Prosecutor General.

9.According to the crime report, the unfortunate incident took place on 09.05.2021 at 05:00 p.m., whereas the crime report was lodged on the same day at 07:45 p.m., within two hours and forty minutes. Considering that the daughter of the complainant (PW-6) is the victim, and the police station is at considerable distance of 14 km, the promptness in getting the crime report lodged not only confirms the presence of the eye-witnesses at the spot but also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the FIR.2 Similarly, the accused appellant, nominated in the crime report, was previously known to the prosecution witnesses, therefore, the question of misidentification does not arise.3

10.The ocular account was furnished by complainant Muhammad Zaman (PW-2); Abid Hussain (PW-3); and, child victim (PW-6), who remained consistent throughout and gave confidence-inspiring testimonies on each and every material point,4 and deposed in unison on the salient features of the prosecution version. Resultantly, they have been found trustworthy, reliable, independent and straightforward. To this end, it is trite that when the evidence of prosecution witnesses of the ocular account is found reliable, the same is sufficient to record conviction without any other corroborative piece of See “Istikhar alias Iftikhar v. The State” (2024 PCr.LJ 1795 Lahore).

See “Muhammad Hanif v. The State” (2023 SCMR 2016); and, “Aman Ullah and another v. The State and others”

(2023 SCMR 723).

See “Muhammad Yasin and another v. The State and others” (2024 SCMR 128).

(Bilal Ahmad v. The State)

evidence.5 During the course of proceedings, the learned counsel for the appellant contended that there are material discrepancies and contradictions in the statements of the eyewitnesses, but on the specific query of this Court, although some minor discrepancies were pointed out, however, the same were found to be quite natural.6

11.In order to address the contention of the learned counsel for the appellant that the child victim (PW-6) was not competent to depose as a witness because she was four (4) years old, the record was perused to scrutinise this contention and it has been observed by us that the learned Trial Court conducted voir dire of child victim (PW-6) to ascertain the competence of a child victim (PW-6), who passed the rationality test. Therefore, child victim (PW-6) was a competent witness in terms of Article 3 read with Article 17 of Qanun-e-Shahadat Order 1984 (“QSO”).7 To this end, it is trite that solitary statement of victim is sufficient to award conviction in a rape case, if the same is found trustworthy, consistent, and reliable.8 Testimony of child victim (PW-

6)provides that she categorically pointed her finger at the appellant as her assailant, which has been found trustworthy, reliable and confidence-inspiring9 and her deposition is fully corroborated by medical evidence, details whereof are discussed herein below.

12.Before delving into medical evidence, it would be appropriate to deliberate as to what constitutes, and what is required to prove, the offence of rape. Medical jurisprudence on the subject has consitently stated that complete penetration, ejaculation, or injury is not necessary to establish the offence of rape. Rai Bahadur Jaising P. Modi in “A Textbook of Medical Jurisprudence and Toxicology”10 opines that:

‘Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficent for the See “Muhammad Hanif v. The State” (2023 SCMR 2016).

See “Aqil v. The State” (2023 SCMR 831).

See “Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another” (PLD 2020 Supreme Court 146); and, “The State v. Muhammad Saleem” (2025 LHC 1099).

See “Habibullah v. The State” (2011 SCMR 1665); and, “Shakeel v. The State” (PLD 2010 Supreme Court 47).

See “Maqbool Hussain v. The State” (2024 PCr.LJ 1841 Peshawar); and, “Naseer Ahmad v. The State” (2023 MLD 1134 Lahore).

Twenty Fourth Edition, at Page 369.

(Bilal Ahmad v. The State)

purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one’.

Parikh in “Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology” writes that:

‘Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains’.

This view is endorsed globally. For example, in Halsbury's Statutes of England and Wales,11 it stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of Section 44 of the Sexual Offences Act 1956.12 Similar jurisprudence has evolved in American Legal System, for instance, Code 263 of the Penal Code of California provides that: ‘Rape; essentials-Penetration sufficient. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime’.

Likewise, this Court has held that even ‘Slight penetration is enough to constitute the offence of rape’ in “Zahoor alias Zahoor Hussain v. The State” . Similarly, the Supreme Court of India in “Madan Gopal Kakkad vs Naval Dubey”14 held that ‘partial penetration within the labia majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape’. At this junction, it is imperative to note here that amendment was made to the scheme governing the offence of rape. The legislature, to its credit, codified the aforementioned principles in the definition clause, i.e., Section 375 of the PPC, by specifically deploying the phrase ‘to any extent’. In view thereof, it follows that even if the aforementioned jurisprudence was not available, due to usage of said phrase, Fourth Edition, Volume Twelve.

See “Vide R v. Hughes” ([1841] 9 C & P 752); “R v. Lines” ([1844] 1 Car & Kir 393); and, “R v. Nicholls”

([1847] 9 LTOS 179).

1983 PCr.LJ 992 Lahore (dB). Also see “Kamran v. The State” (PLD 2022 Lahore 645).

1992 (3) Supreme Court Cases 204.

(Bilal Ahmad v. The State)

even the slightest penetration, be it complete or partial, is sufficient to constitute the offence of rape. In addition thereto, there also does not appear to be any requirement qua ejaculation or physical injury for the offence to be completed. Therefore, we are of the view that for constituting offence under Section 376 of the PPC, any degree of penetration is sufficient to attract liability and full or complete penetration is not a sine qua non for establishing the offence of rape; the slightest ingress, irrespective of ejaculation, is adequate in the eyes of law to bring the act within the ambit of Section 376 of the PPC.

14.Adverting to the medical evidence, Dr. Saima Zafar (PW-5), who conducted the medico-legal examination of the minor victim (PW-6), observed that there was extreme swelling on the vulva and vagina of the minor victim and hymen was ruptured and fresh blood was coming. Precise passage of her (PW-5) testimony is reproduced, infra:

‘On examination:

Clotted blood was present in perineal area. There was extreme swelling of vulva and vagina. Hymen was ruptured and fresh blood was coming. Examination was painful, however, external and internal swabs were taken and persevered for semen detection and DNA, Analysis’.

The injuries on the person of the minor victim (PW-6) align with the indicators of penetration, as highlighted by Rai Bahadur Jaising P. Modi in “A Textbook of Medical Jurisprudence and Toxicology”.15 Relevant excerpt is reproduced as under:

‘Where the girl, aged seven and a half years, had lacera-tions over the edges of the hymen, which was also tender, though the membrane had not been ruptured, and smegma was present in the organ of the accused.16 Where, even though there was no dilation of the vaginal canal, there was injury to the hymen, a tear 1/5" long posteriorly with bruising of the commissure.17 Where the hymen was lacerated and its edges were red and swollen, the fourchette being also lacerated, the labia minora red, oedematous and tender to touch, the wall of the vagina showing abrasions which were infected and the vagina being roomy and admitting two fingers easily.18 Where the hymen, the posterior commissure and fourchette were intact, but there was congestion of the vaginal wall outside the Twenty Fourth Edition, Chapter Thirty One, at Page 677.

Footnote reproduced: Re Anthony MR 1960 Mad 308 at 312; Bhydan Lal Sarma v. State, (1961) 1 Cr LJ 689.

Footnote reproduced: Ghanshyam Misra v. State, AIR 1957 Ori 78: 1957 Cr LJ 469.

Footnote reproduced: State v. Kundumkara Govindan, 1969 Cr LJ 818: 1969 Ker LJ 485.

(Bilal Ahmad v. The State)

hymen and there was redness underneath the labia majora, though no contusions.19 Where, with the exception of some redness of the entrance to the vagina, the girl of five and a half years bore no other mark of injury.20’.

Consequently, the injuries observed on the person of the minor victim (PW-6), including extreme swelling of the vulva and vagina, ruptured hymen, clotted blood in the perineal area, and active bleeding, as noted by Dr. Saima Zafar (PW-5), synchronise with the indicators of sexual assault as recognised by medical jurisprudence, thereby lending strong medical corroboration to the allegation of penetrative abuse.

15.Regarding the plea of negative DNA report, the same has been addressed by Dr. Saima Zafar (PW-5). Relevant excerpt reproduced infra: ‘absence of seminal material on the tested evidence item(s) does not preclude the possibility of the use of condom, non-ejaculation, Taking the aforementioned into consideration, negative DNA report is of no consequence. Besides the point, conviction can be passed in the absence of a positive DNA report, because DNA is supporting/confirmatory evidence, which is corroborative in nature.21 This is why a positive DNA report alone is not considered sufficient to secure a conviction; conversely, the absence of a DNA match does not necessarily exonerate the accused.22

16.Reverting to the case at hand, the DNA report being negative also does not help the case of the appellant because Dr. Khubaib Zulfiqar (PW- 1), deposed qua potency of the appellant, as under:

‘Erection can be possible in Prepubertal age but nothing can be commented that a person of such age can perform sexual act’.

At this junction, it is imperative to observe here that the current regime of the law in the subcontinent does not presume any limit of age under which a boy is considered physically incapable of committing rape.23 Regarding the capacity of an accused to commit rape, it is stated in Rai Bahadur Jaising P. Modi's “A Footnote reproduced: Das Bernard v. State, 1974 Cr LJ 1098 (Goa).

Footnote reproduced: Jagannath v. State, 1952 Cr LJ 1200.

See “Atta ul Mustafa v. The State” (2023 SCMR 1698).

See “Atta ul Mustafa v. The State” (2023 SCMR 1698).

See Parikh's “Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology”, Eight Edition, Chapter Twenty Seven, “Firearms and Firearm Injuries”, at Page 407.

(Bilal Ahmad v. The State)

Textbook of Medical Jurisprudence and Toxicology”24 that: ‘Capacity of Accused to Commit Rape. The presumption of English law against the possibility of the commission of rape by a boy under the age of 14 years has no application in India. In India. a boy of under seven years of age is immune from criminal liability; and, a boy above seven years of age, but below 12 years of age, can have criminal liability fastened to him if his understanding is sufficiently mature to enable him to judge the nature and consequences of his act on that occasion’.

Therefore, it cannot be stated that the appellant, due to his age, was incapable of committing the commission of rape. In “Satto v. State of Uttar Pradesh”,25 three petitioners between the ages of ten to fourteen were found guilty of Section 376 of the Indian Penal Code 1860 (“IPC”),26 which was upheld by the Supreme Court of India. Besides, mere negative DNA report has never been a single indicator which standalone absolves the accused/appellant of liability under the charge of Section 376 of the PPC. In light of the deliberation made hereinabove, the averment that DNA report did not connect the appellant with the commission of offence is misconstrued because: negative DNA report could be due to a plethora of reasons as explained by Dr. Saima Zafar (PW-5); it is nowhere stated in the potency examination of the appellant that sexual activity cannot be performed by him; and, other evidence is in conformity with each other. In “Abdul Ghani v. The State”,27 the Honourable Supreme Court of Pakistan held that:

‘The child being in tender nubility is clinically established to have been violated, a circumstance that required no further forensic corroboration. Negative reports do not reflect upon the veracity of prosecution case for reasons more than one. D.N.A. 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. Even 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 unimpeachable. Penetration is sufficient to constitute the offence and there are many factors, physical as well as psychological, that may intervene during a carnal assault, impeding complete consummation of carnal assault. Such Twenty Fourth Edition, Chapter Thirty One, at Page 677.

1979 (2) Supreme Court Cases 628.

Which is pari materia with Section 376 of the PPC.

2022 SCMR 544.

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subsequent failures do not redeem the enormity of initial assault, a case otherwise established to the hilt. Given the violence inflicted upon the child, enhancement of appellant's sentence by the High Court, his juvenility notwithstanding, nonetheless, cannot be viewed as excessive or harsh. Petition as well as appeal fail.

Dismissed’.

In view of the above, medical evidence substantiates the ocular account.

17.The upshot of the deliberation made herein above is that the prosecution has proved the charge against the appellant beyond a reasonable doubt and we have no reason to disagree with the findings of the learned Trial Court, therefore, criminal appeal bearing No. 859 of 2021 of appellant Bilal Ahmad is hereby dismissed; and, conviction and sentence awarded to the appellant in crime report bearing FIR No. 252/2021 dated 09.05.2021, for offence under Section 376 of the Pakistan Penal Code 1860, registered with Police Station Kot Mithan District Rajanpur, by the learned Trial Court vide judgement dated 24.11.2021 maintained.

18.Before parting with this judgement, it has been observed with concern that despite express prohibition under Section 26 of the Anti-Rape Act,29 which places an express embargo on the disclosure of the identity of the victim, as well as Section 376-A of the PPC30 which provides punishment for disclosing name and identity of the victim,31 the learned Trial Courts’ in their judgements, the learned counsels in their pleadings, as well as the police in the FIRs, refer to the victim by their complete name instead of using initials to protect them by way of concealing their identity and safeguarding their dignity. All said documents, namely, judgements rendered by the learned Trial Courts, pleadings of the learned counsels, and FIRs composed by the police, are public documents, copies of which can be acquired by anyone. As a consequence thereof, disclosure of the name of the victim not only contravenes the statutory protection afforded to the victims, but in addition thereto, exposes them to further trauma, stigma, and social ostracisation. It would not be out of place to Reliance is also placed on “Shakeel v. The State” (PLD 2010 Supreme Court 47).

Note: Before the Act of 2021 came into effect, the Anti-Rape (Trial and Investigation) Ordinance 2020 (“Ordinance”), which was promulgated on 15.12.2020 and validity whereof was extended by another 120 days on 13.04.2021, was still in field, wherein Section 26 of the Ordinance also prohibited disclosure of the identity of the victim.

Note: Section 376-A was inserted in the PPC via the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 (XLIV of 2016), dated 22.10.2016.

See “Muhammad Aamar v. The State” (PLJ 2023 Cr.C. 948 Lahore = 2022 LHC 8114).

(Bilal Ahmad v. The State)

quote the Supreme Court of India in “Nipun Saxena v. Union of India”,32 wherein, while issuing guidelines on the subject matter, observed that: ‘A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being’.

In effect, disclosure of the identity of the victim violates the cardinal rights afforded to the victims, inter alia, Article 4 (to be treated in accordance with the law), Article 9 (right to life and liberty),34 Article 14 (inviolable dignity of a person), and Article 25 (non-discrimination clause), all of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”). In view thereof, let a copy of this judgement be forwarded by the Registrar of this Court to all the learned District and Sessions Judges, as well as the learned Inspector General of Police, Punjab, with a direction for strict compliance with the provisions of the Act of 2021 in all pending and future proceedings.

(MUHAMMAD WAHEED KHAN) (MUHAMMAD JAWAD ZAFAR)

JUDGE JUDGE

Gulfam*

Approved for Reporting

(MUHAMMAD WAHEED KHAN) (MUHAMMAD JAWAD ZAFAR)

JUDGE JUDGE

2019 (2) Supreme Court Cases 703.

This judgement was cited with approval in “Ms. X v. The State Of Jharkhan” (Writ Petition (Civil) No. 1352 of 2019 = 2021 SCInd 28). Furthermore, in a recent judgement, the High Court of Delhi in “Shiv Kumar Kushwaha & Anr v. The State” (Crl.M.C. 3153 of 2019 & Crl.M.A. 12971 of 2019) imposed a fine of Indian Rs. 20,000/- on the petitioner for disclosing the identity of the victim.

See “In the matter regarding Alarming High Population Growth Rate in the Country.” (2019 SCMR 247), wherein it was held that right to life under Article 9 is inclusive of quality of life.