Shafiq Ahmed vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

Bahawalpur Bench, Bahawalpur

JUDICIAL DEPARTMENT

Criminal Appeal No. 565/2023 Shafiq Ahmad Vs. The State and another

JUDGMENT

Date of hearing: 02.12.2025 Mr. Muhammad Asim Khan, Advocate, assisted For the Appellant:

by Mr. Muhammad Sajjad Iqbal, Advocate.

Mr. Najeeb Ullah Khan Jatoi, Deputy Prosecutor For the State:

General.

For the Complainant: Nemo.

Tariq Saleem Sheikh, J. – This appeal is directed against the judgment dated 13.12.2023 delivered by the Additional Sessions Judge, Khanpur, in case FIR No. 266/2022 dated 21.04.2022 registered at Police Station Saddar Khanpur, District Rahimyar Khan.

2.On 21.04.2022, S.B. (the “Complainant”) (PW‐2) submitted a written application (Exh. PD) to Hameed Ahmad/ASI (PW‐1) at Police Station Saddar Khanpur, District Rahimyar Khan, for registration of an FIR. She stated that she was an unmarried woman residing in Basti Kehri, Mouza Qabil Laar, Tehsil Khanpur, District Rahimyar Khan. About seven months earlier, she had gone to a nearby sugarcane field to reap grass for her cattle. While she was there, Shafiq Ahmad (the “Appellant”) arrived, overpowered her, and raped her. She cried out for help, which drew Saeed Ahmad (PW‐3) and Jameel Ahmad (not produced) to the scene. They tried to apprehend the Appellant, but he escaped. The Complainant asserted that she and her family did not take any legal action at the time due to shame. On 19.04.2022, when a medical examination revealed that she was six months and twenty days pregnant, she decided to break her silence. Based on this application, FIR No. 266/2022 (Exh. PA) was registered.

3.The investigation of this case was assigned to Hameed Ahmad/ASI (PW‐1). On 21.04.2022, he visited the place of occurrence,

prepared a rough site plan (Exh. PB), and recorded the statements of the witnesses. On the same day, he produced the Complainant before Dr. Amna Sultan (PW‐5) at THQ Hospital, Khanpur, and submitted an application (Exh. PC) for her medical examination. The doctor examined her and collected swabs for forensic analysis. The following day, i.e., 22.04.2022, she handed over the swabs to Hameed Ahmad/ASI along with MLC No.22‐AS/2022. On 24.04.2022, the Appellant was arrested. He professed innocence in his initial statement (first version). On 26.04.2022, Hameed Ahmad/ASI (PW‐1) took the Appellant and the Complainant to the Punjab Forensic Science Agency (PFSA), Lahore, for DNA profiling, but the PFSA declined to conduct the test due to the Complainant’s pregnancy. Further investigation was then held in abeyance until the child’s birth. On 30.04.2022, the Appellant was sent to judicial lockup. On 18.08.2022, after the child was born, Hameed Ahmad/ASI (PW‐1) again took the Appellant, the Complainant, and the newborn to PFSA, where DNA samples were collected. Shortly thereafter, he was transferred.

4.On 10.11.2022, the investigation was entrusted to Ghulam Muhammad/ASI (PW‐6), who noted that Hameed Ahmad/ASI (PW‐1) had already completed the substantive probe and that only the PFSA report was awaited. On 11.11.2022, he collected the DNA report from the Moharrar, Muhammad Zubair Bashir 1523/HC (PW-7), and recorded the latter’s statement. The following day, he forwarded the police file to the SHO for submission of the final report under section 173 Cr.P.C. On 01.03.2023, the Additional Sessions Judge indicted the Appellant under section 376 PPC, who pleaded not guilty and claimed trial.

5.To prove its case, the prosecution examined seven witnesses. Hameed Ahmad/ASI (PW‐1) registered FIR No. 266/2022 (Exh. PA) and conducted the main investigation of the case. He arranged the Complainant’s medical examination and took her, the Appellant, and the newborn to the PFSA for DNA profiling. Complainant S.B. (PW‐2) and Saeed Ahmad (PW‐3) furnished the ocular account. Dr. Usman Jillani (PW‐4) testified that he medically examined the Appellant and found him fit to engage in intercourse. Dr. Amna Sultan (PW‐5) conducted the Complainant’s medical examination. Ghulam Muhammad/ASI (PW‐6) took over the investigation after the transfer of Hameed Ahmad/ASI, collected the PFSA report, and

forwarded the police file to the SHO for submission of the final report under section 173 Cr.P.C. Muhammad Zubair Bashir 1523/HC (PW‐7) was the Moharrar of the police station and deposed about receiving the DNA report from the PFSA. The public prosecutor gave up PW Jameel Ahmad as unnecessary and closed the prosecution evidence after tendering the PFSA letter dated 26.04.2022 (Exh. PG/2).

6.After the prosecution concluded its evidence, the Additional Sessions Judge recorded the Appellant’s statement under section 342 Cr.P.C. and confronted him with the incriminating material brought on record during the trial. He denied the allegations and professed innocence. He maintained that there was a dispute between the parties over a piece of land and that he had been falsely implicated. The Appellant did not opt to make a statement on oath under section 340(2) Cr.P.C., nor did he examine any witness in his defence.

7.On the conclusion of the trial, vide judgment dated 13.12.2023, the Additional Sessions Judge convicted the Appellant under section 376 PPC and sentenced him to rigorous imprisonment for ten years with a fine of Rs.50,000/- and compensation of Rs.500,000/-, payable to the Complainant in terms of section 545-B Cr.P.C. and in default thereof, to suffer simple imprisonment for further six months. The benefit of section 382-B Cr.P.C. was extended to him. Hence, this appeal.

8.In support of this appeal, Mr. Muhammad Asim Khan, Advocate, contended that the prosecution had failed to prove its case beyond reasonable doubt. He submitted that the FIR (Exh. PA) was lodged after an unexplained delay of about seven months, which, according to him, was fatal to its case. He argued that the FIR was vague and lacked essential particulars such as the date and time of the alleged occurrence, which reflected adversely on the veracity of the prosecution’s narrative. Mr. Khan further submitted that although the Complainant claimed that her uncles, Saeed Ahmad and Jameel Ahmad, had witnessed the incident and tried to apprehend the Appellant, their conduct, as described, lacked the seriousness ordinarily expected in such circumstances, casting doubt on their presence at the scene. Mr. Khan pointed out that neither the Complainant’s application (Exh. PD) nor her testimony during the trial disclosed any attempt on her part to resist or escape, which, in his view, suggested that the act, if any, was

consensual and did not fall within the ambit of section 375 PPC. On this premise, he argued that the offence, if at all, amounted to fornication under section 496B PPC, which is non-cognizable and triable by a Magistrate of the First Class, and not rape punishable under section 376 PPC. Lastly, the counsel challenged the validity and evidentiary value of the DNA report (Exh. PF), contending that no record was produced to establish the identity of the individuals who provided the samples, or the manner of their collection and safe custody. In these circumstances, the possibility of substitution or manipulation could not be ruled out, which, according to counsel, rendered the DNA report unreliable. He concluded that the prosecution’s case was marred by material omissions and inconsistencies, and the Appellant was entitled to the benefit of doubt.

9.The Deputy Prosecutor General (DPG) controverted the above contentions and supported the impugned judgment. He submitted that the Complainant’s testimony was consistent and inspired confidence, as she remained unshaken during cross-examination. He argued that her account was corroborated by the testimony of Saeed Ahmad (PW‐3), the medical evidence, and the DNA report (Exh. PF), which confirmed the Appellant’s paternity. He maintained that the defence had failed to identify any material contradiction or discrepancy in the prosecution’s evidence that could justify an acquittal. As to the delay in lodging the FIR, the DPG submitted that such delays are not uncommon in cases of sexual violence, particularly in rural settings, where victims and their families often refrain from approaching law enforcement agencies due to social stigma. In the circumstances of the case, no adverse inference could be drawn against the prosecution on this score. Regarding the objections to the DNA report, he argued that the procedural irregularities highlighted by the defence were insufficient to discredit the scientific findings, which stood unrefuted. He concluded that the prosecution had discharged its burden and proved the charge beyond a reasonable doubt, and that the appeal was without merit.

10.Arguments heard. Record perused.

11.The Complainant lodged FIR No. 266/2022 (Exh. PA), alleging that the Appellant had ravished her about seven months earlier, as a result of which she became pregnant. One of the Appellant’s principal contentions is that this delay in setting the law into motion is fatal to the prosecution’s case.

True, the law generally emphasizes the prompt reporting of crimes, but courts acknowledge that sexual abuse cases require a more nuanced approach due to their sensitive nature. Delays in reporting such offences cannot be equated with delays in other crimes. Several factors may contribute to late reporting, including trauma,1 fear,2 shame,3 the prospect of an invasive medical examination,4 threat,5 or a lack of awareness.6 Consequently, courts in our country do not attach decisive weight to the delay in reporting to the police unless the circumstances are such that they warrant an adverse inference. In the present case, the DPG has not referred us to any circumstance that may require us to do so. The Complainant explained that she remained silent due to shame and only decided to act after a medical examination confirmed her pregnancy. This explanation is not inherently implausible. Therefore, the prosecution’s case cannot be rejected merely on the ground of delay.

12.The Complainant testified as PW‐2 at the trial. In Muhammad Aslam v. The State and others (2023 SCMR 397) and Atta-ul-Mustafa v. The State and another (2023 SCMR 1698), the Supreme Court held that, unless there are compelling reasons to seek corroboration, courts should have no difficulty in relying solely on the victim’s testimony, provided it is independent, unbiased, and straightforward enough to substantiate the accusation. In the present case, although the Complainant purported to affirm the version set out in her written application (Exh. PD) and FIR No. 266/2022 (Exh. PA), her cross‐examination disclosed material weaknesses that undermined her credibility. She admitted that the Appellant was her maternal cousin and that he had never teased or sexually harassed her before the alleged occurrence. She stated that on the day of the incident, she left her house between 8:00 and 9:00 a.m. to cut grass and had been working alone in the sugarcane field for about 10 to 15 minutes when the Appellant appeared. She added:

Irfan Ali Sher v. The State (PLD 2020 SC 295).

Hamid Khan v. The State (1981 SCMR 448), Zahid v. The State (2022 SCMR 50), Mubeen Ahmed v. The State and another (PLD 2021 Islamabad 431).

Zahid and another v. The State (2020 SCMR 590), Zahid v. The State (2022 SCMR 50).

Irfan Ali Sher v. The State (PLD 2020 SC 295).

Hamid Khan v. The State (1981 SCMR 448).

Imdad Ullah v. The State and another (2024 LHC 1462 : PLD 2025 Lahore 512).

“Accused threw me on the ground and he removed my shalwar with one hand while his other hand [was] on my mouth. I vilely resisted the accused while grabbing my shalwar and the hand of the accused as well. It took 2/4 minutes before the accused removed my shalwar. He forcibly raped me for 2/4 minutes. I made hue and cry when the accused committed rape with me.”

13.According to the Complainant’s own narration, the Appellant threw her to the ground, kept one hand on her mouth, and removed her shalwar with the other, while she resisted. She further stated that the act lasted for two to four minutes. This account raises inherent improbabilities. If, as alleged, one hand of the Appellant remained on her mouth while the other was engaged in removing her shalwar and restraining her, it is difficult to reconcile how the act attributed to him could have been performed in the manner described.

14.The Complainant’s version regarding resistance and hue and cry is also contradictory. At one stage, she stated that she could not raise an alarm because the Appellant covered her mouth; at another, she asserted that she did raise a hue and cry and that the prosecution witnesses were attracted to the spot, though she admitted she did not see them arrive. It is also noteworthy that she testified that immediately after the alleged incident, her uncle took her home, where all family members were present, and that she disclosed the incident to her father. Yet despite this disclosure, no complaint was made even to the Appellant’s family. While this Court has already held that delay in reporting the matter to the police is not, by itself, fatal in cases of this nature, the absence of any protest or complaint to the Appellant’s family in the immediate aftermath is a distinct circumstance that bears upon the credibility of the Complainant’s account. She was also confronted with the fact that several graphic details narrated in court were not mentioned in her written application (Exh. PD). She did not give any satisfactory explanation and appeared uncertain whether the Investigating Officer had recorded them.

15.Viewed as a whole, the Complainant’s testimony is riddled with contradictions, omissions, and internal inconsistencies. These flaws cumulatively render her statement unreliable for use in a prosecution that relies primarily on her account.

16.The prosecution examined Saeed Ahmad (PW‐3), the Complainant’s uncle, as an eyewitness to the incident. He deposed that he was returning from his fields along with another uncle, Jameel Ahmad

(not produced), when he heard her cries. He reached the scene and saw the Appellant committing the offence. However, PW Saeed Ahmad did not specify the date of the alleged occurrence or explain why he happened to be at the place of occurrence at the relevant time. His presence appears coincidental. It is an established principle that the testimony of a chance witness must be scrutinized with care. In Sughra Begum v. Qaiser Pervez and others (2015 SCMR 1142), the Supreme Court observed:

“A chance witness, in legal parlance, is the one who claims that he was present on the crime spot at the fateful time, albeit his presence there was a sheer chance ... such testimony is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time... otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”

17.The above principle was reiterated in Shahid Ali v. The State (2025 SCP 250), where the Supreme Court held that the testimony of a chance witness must be supported by circumstances that appeal to the judicial conscience. In the present case, since Saeed Ahmad (PW-3) has not provided any convincing explanation for his presence at the scene, his testimony must be treated with suspicion. Mr. Khan’s contention that he was introduced only to support the prosecution’s narrative carries weight. Even otherwise, since we have discarded the Complainant’s testimony, his statement cannot independently sustain the charge.

18.The Complainant’s pregnancy was the cornerstone of the prosecution’s case. Yet neither her written application (Exh. PD), the FIR (Exh. PA), nor her examination-in-chief disclosed any specific date of occurrence. She merely alleged that the Appellant had raped her about seven months before the registration of the FIR. The medical examination conducted on 19.04.2022, however, assessed her gestational age as 22 weeks and six days, placing the likely date of conception in late November 2021. This estimate appears inconsistent with her claim that the incident occurred around September 2021. While some margin of error is inherent in gestational dating, the prosecution did not clarify whether the two timelines could be reconciled. In a case where pregnancy is relied upon to establish both the occurrence and timing of the offence, the absence of any explanation for this discrepancy undermines the credibility of the prosecution’s narrative.

19.This inconsistency is further compounded by the prosecution’s failure to furnish the underlying evidence supporting the gestational

assessment. Dr. Amna Sultan (PW‐5) claimed to have determined the gestational age by ultrasound, but the radiologist was not examined at the trial. Even the ultrasound report was not placed on record. This omission is significant because it deprived the Appellant of the opportunity to verify or contest the basis of the finding, or to establish a timeline inconsistent with the alleged incident.

20.The Appellant never raised a defence of impotence or physical incapacity, nor was his ability to perform intercourse ever in dispute. In such circumstances, a medical opinion on his fitness does not advance the prosecution’s case.

21.The prosecution also failed to establish the factum of childbirth or the identity of the child said to have been conceived as a result of the alleged rape. No birth certificate or other documentary proof was produced at trial. The prosecution’s evidence is silent even as to the child’s gender. The Investigating Officer, Hameed Ahmad/ASI (PW‐1), made the following admission during cross-examination:

“It is not in my knowledge where the child of the victim was born. It is not in my knowledge whether child was born through midwife (Dai) or hospital. I did not join into investigation any Dai or doctor in this regard. I did not collect any record of the hospital regarding birth of the child. On 17.08.2022 complainant appeared before me alongwith child at Police Station Saddar Khanpur. I did not prepare memo of identification of said child which was brought by complainant. In the reply of court question, I did not collect the birth certificate of the child of the victim. I did not mention any identification mark for the purpose of identification of that child.”

22.Furthermore, the child was not produced during the trial, and no witness, including the Investigating Officer, identified the child in court. These are not trivial omissions. The child’s existence and identity were crucial to the prosecution’s narrative and formed the evidentiary basis for the DNA analysis. In the absence of such proof, the forensic report (Exh. PF), on which reliance is placed to establish that the Appellant was the biological father of the child, is rendered unreliable.

23.There is another important aspect of the case. Hameed Ahmad/ASI (PW‐1) testified that on 26.04.2022, he took the Appellant and the Complainant to the PFSA for DNA profiling, but the same was deferred due to the Complainant’s pregnancy. The swabs taken by Dr. Amna Sultan (PW‐5) on 21.04.2022 were returned by PFSA through letter dated

26.04.2022 (Exh. PG/2). No DNA profiling was conducted on the basis of those swabs. On 18.08.2022, after the child’s birth, Hameed Ahmad/ASI again produced the Appellant, the Complainant, and the newborn at the PFSA, where samples were allegedly collected. However, the record does not confirm the identity of the individuals produced for testing. No witness deposed to having identified either the child or the Appellant at the time of sample collection. Nor is there any memo, document, or independent verification to attest to their identity during that process. In this context, the relevant extract from the cross-examination of Hameed Ahmad/ASI (PW‐1) is reproduced below:

“I did not prepare memo of identification of Shafique [Appellant]. I did not take into possession the CNIC card of Muhammad Shafique. I had not mentioned the fact regarding the preparation of the docket for conducting DNA in my case diary on 17.08.2022.”

24.The PFSA report (Exh. PF) merely records that buccal swabs of the Appellant, the Complainant, and a “newborn baby” were received. It does not specify the child’s gender, nor does it identify the person who submitted the samples. The prosecution neither examined the individual who collected and prepared the buccal swab parcels nor established the chain of custody from collection to analysis. Although the PFSA report is admissible per se,7 admissibility and reliability are distinct concepts. Its probative value depends on the establishment of foundational facts, including the identity of the sample-givers and the integrity of the transmission/custody chain. In the present case, neither was established. The possibility of substitution, mistake, or manipulation cannot be excluded. This is an additional reason why the PFSA report cannot be relied upon.

25.The standard of proof in a criminal trial requires the prosecution to establish its case beyond a reasonable doubt. That threshold has not been satisfied in the present case. The unexplained inconsistency in the gestational timeline, the failure to prove the birth and identity of the child, the lack of any credible explanation for the presence of the purported eyewitness (PW Saeed Ahmad), and the serious lapses in the DNA process all converge to create doubt. It is trite that where a single reasonable doubt arises Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362).

regarding the guilt of the accused, he is entitled to its benefit. Accordingly, the Appellant’s conviction cannot be sustained.

26.At one stage during arguments, the Appellant’s counsel, Mr. Khan, contended that the incident, if it occurred at all, involved consensual intercourse and did not fall within the ambit of section 375 PPC, and therefore did not attract the punishment under section 376 PPC. He submitted that the appropriate charge, if any, should have been under section 496B PPC, which is a non-cognizable offence triable by a Magistrate of the First Class. This argument is inconsistent with the Appellant’s own plea under section 342 Cr.P.C., wherein he denied the occurrence altogether and claimed false implication due to a property dispute. No alternative plea of consensual intercourse was raised, nor was any defence evidence led in support thereof. This line of argument, therefore, is not tenable.

27.In view of the above, we accept Crl. Appeal No.565/2023 and set aside the Appellant’s conviction and sentence. He shall be released from jail if not required to be detained in another case.

28.Before parting with this judgment, it must be observed that the case was mishandled at both the investigation and the trial stage. The first Investigating Officer, Hameed Ahmad/ASI (PW‐1), failed to observe essential procedural safeguards mandated by law. He did not collect any evidence about where and how the child was born, whether at a hospital or with the assistance of a midwife, or elsewhere. He did not record the statement of any attending doctor or midwife, nor did he obtain the birth certificate or any other documentation establishing the child’s identity. He did not even note any distinguishing features of the child.

29.Dr. Amna Sultan (PW‐5) testified that she handed over three swabs – cervical, external vaginal, and internal vaginal – to Hameed Ahmad/ASI for onward transmission to the PFSA. Although the PFSA later returned these samples without analysis, the record shows that the officer failed to maintain proper documentation and ensure their safe custody. Similarly, on 18.08.2022, when he took the Appellant, the Complainant, and the newborn for DNA sampling, he failed to document the identity of the individuals produced, record the statement of the person who collected the

samples, or verify the chain of custody. These omissions contravened his statutory duties and compromised the DNA evidence.

30.The public prosecutor’s lapses may be considered with reference to two stages: the pre-trial phase and the trial proceedings. At the pre-trial stage, the prosecutor failed to perform his statutory gatekeeping function. The police record disclosed clear evidentiary gaps, yet he neither returned the case file to the Investigating Officer for further investigation nor issued any formal directions to rectify them. Section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, requires the prosecutor to scrutinize the police report and accompanying material, and if found defective, to return it for removal of deficiencies.

31.The Prosecutor General has, with the prior approval of the Government, issued a Code of Conduct for prosecutors under section 17 of the said Act. Paragraph 2.1 of the Code requires prosecutors to cooperate and coordinate with the police to ensure fair and just prosecutions. Paragraph 2.2 explains that such coordination includes advice and guidance on possible lines of enquiry, evidential requirements, and pre-charge procedures to ensure that investigations are completed within a reasonable period and result in a legally admissible case. However, prosecutors are not authorized to direct the police or other investigators except as provided in paragraph 4 of the Code. In the present case, these duties were either overlooked or not performed in a meaningful way, reflecting a lack of coordination between the prosecutor and the police, professional incompetence, or both.

32.During the trial, the prosecutor failed to conduct the case with the diligence and preparation it required. Although the prosecution’s theory hinged on paternity, no effort was made either to produce the child in court or to establish his identity. He also failed to summon any witness capable of supporting the foundational facts necessary for the admissibility and reliability of the DNA evidence. These lapses materially weakened the prosecution’s position and contributed to the eventual collapse of the case.

33.The conviction rate in Punjab remains abysmally low, largely due to failures in investigation, prosecution, and evidence handling. Compliance with procedural requirements is not merely a technical obligation, but a necessary safeguard of due process and a fair trial. We,

therefore, direct the Prosecutor General and the Inspector General of Police, Punjab, to ensure effective coordination between the prosecution and police departments. They shall ensure compliance with the statutory framework outlined above and arrange for periodic training and capacity building for prosecutors and investigating officers.

34.The Senior Additional Registrar of this Bench shall transmit a copy of this judgment to the Prosecutor General and the Inspector General of Police, Punjab, for compliance.

(Muhammad Amjad Rafiq) (Tariq Saleem Sheikh) Judge Judge Naeem

Approved for reporting

(Muhammad Amjad Rafiq) (Tariq Saleem Sheikh) Judge Judge