Imtiaz Hussain Alias Munshi vs State

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

Bahawalpur Bench, Bahawalpur

JUDICIAL DEPARTMENT

Criminal Appeal No. 420/J/2023

Imtiaz Hussain alias Munshi Vs.

The State

JUDGMENT

Date of hearing 15.12.2025 Syed Zeeshan Haider, Advocate, assisted by For the Appellant:

Mr. Muhammad Azhar, Advocate.

Rao Muhammad Riaz Khan, Deputy For the State:

Prosecutor General.

For the Complainant: Mr. Muhammad Naeem Bhatti, Advocate.

Tariq Saleem Sheikh, J. – This appeal is directed against the judgment dated 28.09.2023 delivered by the Additional Sessions Judge, Khairpur Tamewali, in case FIR No.106/2022 dated 19.03.2022 registered under section 376(3) PPC at Police Station Anayati, Tehsil Khairpur Tamewali, District Bahawalpur.

2.On 19.03.2022, PW-1 Muhammad Arif (the “Complainant”), submitted a written application (Exh. PA) to Arshad Nadeem/SI (PW‐6) at Police Station Anayati, District Bahawalpur, for registration of an FIR. He stated that earlier that day, he had gone to Mailsi along with his wife and two children to purchase medicines and groceries, leaving his 12/13-year-old son, M.A., at home.1 He further stated that when they returned from Mailsi, they met his brothers, Muhammad Siddique and Hafiz Muhammad Mujahid, at Chak Islamabad. He informed them about the purpose of his visit. His brothers then joined him on their motorcycle, and together they proceeded to his house. Around 2:30 p.m., when they reached there, they heard M.A.’s cries. All of them rushed in and saw The name of the victim is abbreviated to preserve his identity in accordance with judicial practice.

Imtiaz Hussain alias Munshi (the “Appellant”) sexually assaulting M.A. in the room. On seeing them, the Appellant fled from the scene, picking up his shalwar. Based on this application, FIR No.106/2022 (Exh.PH) was registered.

3.After recording FIR No.106/2022 (Exh. PH), Arshad Nadeem/SI (PW‐6) visited the place of occurrence, prepared the rough site plan (Exh. PI), recorded the statements of the witnesses, including the victim, and issued a docket (Exh. PB). Then he proceeded to THQ Hospital, Khairpur Tamewali, along with Muhammad Ishfaq 1340/CII and the victim, M.A., where the latter was medically examined. On 20.03.2022, the Medical Officer, Dr. Hafiz Muhammad Zahid (PW‐3), handed over MLC No. 94/22, three sealed parcels containing the victim’s swabs, and the Injury Statement (Exh. PC) to Arshad Nadeem/SI. Upon returning to the police station, he deposited the sealed parcels with the Moharrar, who later returned them for onward transmission to the Punjab Forensic Science Agency (PFSA). On 08.04.2022, while on ad‐interim pre‐arrest bail, the Appellant joined the investigation. Arshad Nadeem/SI recorded his (first) version and conducted a face-to-face investigation on 10.04.2022. He concluded that the Appellant had committed the alleged offence. On 28.04.2022, he was transferred from Police Station Anayati.

4.Thereafter, the investigation was carried out by Muhammad Islam/SI (PW‐4). On 10.05.2022, following the dismissal of the Appellant’s pre‐arrest bail application by this Court, he arrested him. On 11.05.2022, he obtained the Appellant’s physical remand and had his potency test conducted the same day. On 12.05.2022, he produced both the Appellant and the victim at the Punjab Forensic Science Agency (PFSA) for a DNA test. On 14.05.2022, the Appellant was remanded to judicial custody. Upon completion of the investigation, a report under section 173 Cr.P.C. was submitted to the court.

5.On 22.11.2022, the Additional Sessions Judge indicted the Appellant under section 376(3) PPC. He pleaded not guilty and claimed a trial.

6.To prove the charge, the prosecution examined seven witnesses. Complainant Muhammad Arif (PW-1) and victim M.A. (PW-2) furnished the ocular account. Dr. Hafiz Muhammad Zahid (PW-3) and

Dr. Muhammad Waqas Chohan (PW-5) provided medical evidence. Mazhar Iqbal 2104/HC (PW-7) was the Moharrar of the police station and testified about receiving the sealed parcels containing the victim’s swabs and subsequently handing them over to the Investigating Officer for delivery at PFSA. Muhammad Islam/SI (PW-4) and Arshad Nadeem/SI (PW-6) gave the details of their investigation and the evidence they collected in this case. The prosecutor gave up PWs Muhammad Siddique and Hafiz Muhammad Mujahid, deeming them unnecessary, and closed the prosecution evidence after tendering the forensic report Exh. PE.

7.After the prosecution completed its evidence, the trial court recorded the Appellant’s statement under section 342 Cr.P.C. and confronted him with the incriminating material brought against him during the trial. He refuted the allegations and professed innocence. He claimed that he was running a sweet shop and that M.A. had stolen money from his cash box, whereupon he beat him. According to the Appellant, the present case was falsely registered against him as a consequence of that incident. He 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.

8.On the conclusion of the trial, vide judgment dated 28.09.2023, the Additional Sessions Judge convicted the Appellant under section 376(3) PPC and sentenced him to life imprisonment with a fine of Rs. 50,000/-. He was also directed to pay Rs. 50,000/- to the victim as compensation in terms of section 544-A Cr.P.C. and, in default of payment of the fine and compensation, to undergo simple imprisonment for further six months. The benefit of section 382-B Cr.P.C. was extended to him. Hence, this appeal.

9.The Appellant's counsel, Syed Zeeshan Haider, Advocate, contended that the prosecution had failed to prove its case beyond reasonable doubt. According to him, the entire case was fabricated. He submitted that there was no independent witness to the alleged occurrence and that the evidence furnished by Muhammad Arif (PW‐1) and M.A. (PW‐2) did not inspire confidence. He further contended that the prosecution’s case was riddled with material contradictions and that the medical evidence conflicted with the ocular account. In particular, Dr. Hafiz Muhammad Zahid (PW‐3), who examined the victim at 10:05

p.m. – just hours after the alleged occurrence – did not observe any redness, swelling, tearing, or discharge around the anus. Counsel submitted that the trial court failed to consider these discrepancies, which caused a miscarriage of justice. He conceded that the prosecution’s only potentially strong point was the forensic report (Exh. PE), but argued that it lacked evidentiary value because the prosecution had not established safe custody of the samples. Even otherwise, he contended, the forensic evidence was merely corroborative in nature. If the ocular and medical evidence were disbelieved, the forensic report alone could not sustain a conviction. He, therefore, prayed that the appeal be allowed and the Appellant acquitted of the charge.

10.The Deputy Prosecutor General (DPG), assisted by the Complainant’s counsel, controverted the above contentions. He submitted that the Appellant had committed a heinous offence and was specifically nominated in the FIR. According to him, the prosecution had proved the charge through reliable evidence, and there was no discrepancy or contradiction from which the Appellant could derive any benefit. He further argued that the medical and forensic evidence corroborated the ocular account. The DPG concluded that the prosecution had discharged its burden and established the charge beyond a reasonable doubt, and that the appeal was without merit.

11.Arguments heard. Record perused.

12.The prosecution alleged that on 19.03.2022 around 2:30 p.m., the Appellant trespassed into the Complainant’s house and forcibly subjected his minor son, M.A., to sodomy. The Complainant reported the matter to the police through a written application Exh. PA on the basis of which FIR No. 106/2022 Exh. PH was registered on the same day at 7:50 p.m. To prove the charge against the Appellant, the prosecution relies on the ocular account of Complainant Muhammad Arif (PW-1) and the victim M.A. (PW-2), as well as medical and forensic evidence.

13.Complainant Muhammad Arif (PW‐1) reiterated in examination‐in‐chief the version contained in his written application (Exh. PA) and the FIR (Exh. PH). During cross‐examination, however, he admitted that he did not witness the actual act of sexual assault. He stated:

“When we reached home, I was having pain in my eyes, so I sat in the courtyard of my house, while my brothers and my wife entered in the said room, which is the alleged place of occurrence. My brothers and my wife tried to apprehend the accused, but he succeeded to fled (sic) away ... When the accused fled away, he was not wearing shalwar; rather, he took the same in his hand. The accused ran towards his house. We did not go to his home while chasing him. At that time, the mother of the accused was present at home. We complained [about] the matter to his mother.”

14.Although Muhammad Arif (PW‐1) reiterated in his examination‐in‐chief the version recorded in Exh. PA and Exh. PH, which appeared to suggest that he directly witnessed the act of sexual assault, his cross‐examination clarified that he did not witness the act of penetration itself but only observed the events immediately preceding and following the incident. This clarification affects the character of his evidence, rendering it circumstantial rather than direct. As the evidence regarding his presence at the relevant time was not rebutted, his hearing the victim’s outcry and his seeing the Appellant fleeing without his shalwar are facts personally witnessed and remain relevant under Article 19 of the Qanun‐e‐Shahadat, 1984. In sexual offences committed within private spaces, courts often rely on such circumstantial details to corroborate the victim’s account. In the present case, the Complainant’s observations are consistent with M.A.’s testimony and the forensic findings discussed below. Though limited in probative force, his statement provides corroborative support and forms part of the evidentiary chain.

15.Mr. Haider argued that the Complainant’s testimony is to be outrightly rejected because of his close relationship with the victim. This contention is untenable because, as we shall discuss later, there is nothing on the record to suggest that he had a reason to falsely implicate the Appellant in this case. The following excerpt from Haji v. The State (2010 SCMR 650) is instructive:

“Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence- inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident.”

16.The victim, M.A. (PW‐2), fully supported the prosecution’s version. He stated that while he was alone at home, the Appellant entered, forcibly removed his clothes, and committed anal intercourse with him. He confirmed that the Appellant fled upon the arrival of his family. On the same day, his statement under section 161 Cr.P.C. was recorded and he was medically examined at THQ Hospital, Khairpur Tamewali. During cross- examination, no material contradiction was elicited.

17.It is a settled principle of law that the sole testimony of a victim is sufficient to prove the occurrence if it inspires confidence. In Bashir Ahmed v. The State (PLD 1979 Karachi 147), the Sindh High Court held that the rule as to corroboration is one for the guidance of the courts and is not a rigid rule of law. In Raja Khurram Ali Khan and others v. Tayyaba Bibi and another (PLD 2020 SC 146), the Supreme Court drew a clear distinction between a child who merely witnesses a crime and one who is the direct victim of it. It held that the testimony of a child who is also the victim must not be judged by the same standards as that of an ordinary witness.

18.The Supreme Court’s observations in Atif Zareef and others v. The State (PLD 2021 SC 550), although made in the context of rape of a woman, are also instructive. Recognizing the inherent difficulty in securing direct evidence for sexual crimes due to their private nature, the Supreme Court emphasized that the courts should not insist on additional direct evidence to corroborate the victim’s testimony if it is found credible within the specific facts and circumstances of a case. In such instances, the victim’s testimony should alone suffice for the conviction of the accused. The Supreme Court stated that a rape victim stood on a higher pedestal than an injured witness because the latter only suffered physical harm, while the former endured psychological and emotional distress.

19.In Imdad Ullah v. The State and another (PLD 2025 Lahore 512), it was held that the evaluation of a child’s testimony as a victim of sexual abuse requires a thorough and balanced approach to protect their rights while upholding principles of justice. The absence of corroboration should not automatically discredit the child’s testimony. The tender age of the child, combined with case-specific factors such as demeanour and the unlikelihood of tutoring, may render

corroboration unnecessary. However, this is a question of fact in each case. Courts must also acknowledge that children may respond to abuse in diverse ways, including fear, confusion, or emotional distress.

20.In the present case, as discussed, M.A. remained steadfast during extensive cross-examination by the Appellant and answered each question confidently and maturely despite his young age. His testimony is, therefore, found to be reliable and trustworthy.

21.We now turn to the medical and forensic evidence. Dr. Hafiz Muhammad Zahid (PW‐3) testified that he medically examined M.A. at THQ Hospital, Khairpur Tamewali, on 19.03.2022 at 10:05 p.m., and issued MLC No. 94/22 (Exh. PD). According to him, the victim was wearing a sky-blue shalwar kameez, reportedly the same clothes he had on at the time of the incident. The kameez was torn, and dirt was present on it. No blood was observed. His clinical findings were as follows:

(1)Perianal (local) examination: Secondary sexual characters are not developed, normal external genitalia, no redness shown around the anus, no swelling or tear present around the anus.

(2)Digital Rectal Examination (DRE): The anal sphincter did not allow easy passage even for a little finger. Fluid or secretion are not present around the anus.

(3)Proctoscopy shows no intestinal tear or internal bleeding.

22.Dr. Muhammad Waqas Chohan (PW-5) testified that he examined the Appellant and opined that he was potent and capable of engaging in sexual intercourse.

23.Mr. Haider contended that M.A.’s MLC (Exh. PD) does not support the prosecution’s case because it records no redness, swelling, or tearing around the anus. This contention requires careful scrutiny. Scientific literature confirms that the absence of injury, even in cases of confirmed anal penetration, does not preclude the occurrence of sexual abuse. According to Dr. James Lukefahr, a recognized authority in forensic pediatrics, at least 90% of examinations of sexually abused pre-pubertal children show no acute findings of trauma. He explains that this is primarily due to delayed disclosure, the non-injurious nature of many abusive acts (e.g., fondling or oral-genital contact), and the rapid healing properties of pediatric tissue. He emphasizes that the key item of evidence

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in most child sexual abuse investigations remains the child’s outcry or description of what happened, and not the clinical findings.2

24.A range of clinical studies supports this position. Kotze and Brits, writing in the African Journal of Primary Health Care & Family Medicine,3 emphasized that medical examinations frequently yield no confirmatory signs, even where child sexual abuse involves penetration. They observed that the medical history and the child’s narrative are central to the diagnostic process and may outweigh physical indicators. Similarly, Berenson et al., in a study involving children examined after confirmed abuse, found signs of previous trauma in only four out of 192 cases.4 Van As et al. reported that up to 35% of children examined within 24 to 72 hours of the incident exhibited no signs of trauma.5 Kotze and Brits concluded:

“The clinical forensic significance of these studies is that a large percentage of examinations, evaluating the likelihood of CSA [child sexual abuse], are normal or non-specific. The longer the interval, the less the probability of finding abnormalities. Even with early presentation and a clear history of anogenital sexual contact, a significant percentage of sexually abused children show no signs of trauma, even if there is previous documentation of visible injuries and a history of pain and bleeding.”

25.Kotze and Brits further explain that the absence of abnormal clinical findings in cases of child sexual abuse may be due to multiple causes. First, human tissue possesses intrinsic resilience. Unless the applied force exceeds the tissue’s capacity to withstand it, visible injury may not result. In addition, anogenital injuries in children often heal rapidly and without residual scarring because of a robust blood supply. Second, anatomical features of the anal canal, including muscular sphincters and perianal folds, allow for significant dilation, which may permit penetration without causing detectable trauma. Third, perpetrators may apply lubricants, including commercial products, saliva, or other substances, which minimize injury. Finally, behavioural and psychological factors also play a role: abusers may avoid using force, particularly where grooming, Lukefahr J, Physical Findings in Sexual Abuse Examinations: Essentials of Pediatrics, (2008) https://www.utmb.edu/pedi_ed/CoreV2/Abuse/page_16.htm Kotze JM and Brits H, Child Sexual Abuse: The Significance of the History and Testifying on Non- Confirmatory Findings (2019) 11(1) African Journal of Primary Health Care & Family Medicine 1–7 https://doi.org/10.4102/phcfm.v11i1.1954

ibid.

ibid.

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threats, or manipulation render the child non-resistant. In such cases, the act may be non-forceful, interlabial, or intergluteal, and still fall within the World Health Organization’s definition of sexual abuse without physical violence.

26.In a review published in Dtsch Arztebl International, Bernd Herrmann et al. stated that genital injuries are rare in sexually abused girls (5–10%) and even rarer in boys (1–3%).6 The authors attributed the rarity of positive findings to delayed medical examination and to the tendency of perpetrators to avoid inflicting visible injury, so that they may have continued access to the victim. Citing Pillai’s synthesis of evidence-based research, the review noted that the majority of child and adolescent victims of sexual abuse present with no clinical findings. Among the key conclusions were: genital measurements are unreliable for diagnostic purposes; superficial and intermediate hymenal tears generally heal completely and rapidly; and scarring is not observed even after hymenal injury. The peripheral posterior margin of the hymen, often used as a clinical marker, is difficult to evaluate reliably. These findings underscore the clinical limitation of physical examination in confirming sexual abuse, particularly when it is conducted with a delay.

27.In the specific context of male child victims, Miziara and Miziara state that in a study of 13,870 sexual assault examinations in Brazil, 96.2% of boys under the age of 14 had inconclusive findings. 7 According to their analysis, even in legally confirmed cases of sexual abuse, most children do not exhibit clinical signs indicative of such abuse. They emphasized that child testimony remains the most critical evidentiary component, as the absence of physical findings does not rule out sexual assault. The most commonly described indicators (such as perianal swelling, marginal hematomas, radial fissures, anal dilation, or linear abrasions) are of limited reliability. “A dilation of less than 2 cm can be considered a normal reflex reaction. It is also associated with constipation, encopresis, and neuromuscular diseases. Additionally, anal fissures may appear in perianal infections or skin irritations of other origins.

Bernd Herrmann et al., Physical Examination in Child Sexual Abuse: Approaches and Current Evidence, Dtsch Arztebl Int . 2014 Oct 10;111(41):692–703. doi: 10.3238/arztebl.2014.0692 Miziara CSMG, Miziara ID (2022) Forensic Aspects of Male Child Rape and How We Can Prove It. Arch Pediatr 7: 213. DOI: https://doi.org/10.29011/2575-825X.100213

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Furthermore, in most cases, penetration (or repeated penetration) of the anus does not result in injury or other changes. A significant inter-observer variability in the accuracy of detection and interpretation of genital injury can cause a wide variation in the reported prevalence of genital injury following rape.”8

28.Applying the above principles to the case at hand, we note that although the victim was medically examined within a few hours of the incident, the absence of physical signs in MLC No. 94/22 (Exh. PD) does not contradict the prosecution’s case. The medical evidence, read in context, does not negate the possibility of sodomy.

29.According to the PFSA report (Exh. PE), seminal material was detected on three samples: Item No.1 (M.A.’s internal anal swab), Item No.3 (external anal swab), and Item No.4 (another swab labeled as anal). DNA profiling was performed on Item No.1, which confirmed that the sperm fraction matched the Appellant’s DNA profile. No Short Tandem Repeat (STR) profiling was performed on Items No.3 and 4 in accordance with PFSA policy. Dr. Hafiz Muhammad Zahid (PW‐3), who reviewed the report bearing Serial Nos. 0000872787 and 0000872788, gave his final opinion (Exh. PE/1) as under:

“Item No.1, 3, and 4, according to the forensic report, the DNA profile obtained from the sperm fraction of Item No.1 matches the DNA profile of Imtiaz Hussain alias Munshi, so sodomy was done with [M.A.].”

30.The forensic DNA findings from the victim’s internal anal swab support the allegation of sexual contact and corroborate his testimony.

31.Although the PFSA report is admissible per se,9 admissibility and reliability are distinct concepts. Mr. Haider’s contention that the forensic report (Exh. PE) cannot be relied upon because the prosecution failed to establish safe custody and proper transmission of the swabs is misconceived. It is significant that during cross-examination, none of the prosecution witnesses were confronted with any suggestion that the sealed parcels were mishandled or tampered with. However, for the safe administration of justice, we have ourselves reviewed the evidence Also see: Biswas G, Review of Forensic Medicine & Toxicology, ch 26 para 2, p 390.

Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362).

recorded in this case and are satisfied that the chain of custody was not compromised.

32.Dr. Hafiz Muhammad Zahid (PW‐3) testified that he issued MLC No. 94/22 (Exh. PD) and handed over the MLC, injury statement, and three sealed parcels to Arshad Nadeem/SI (PW‐6) for onward transmission to the PFSA. Arshad Nadeem/SI (PW-6) stated that on 20.03.2022, he received these items from THQ Hospital Khairpur Tamewali, deposited the sealed parcels with the Moharrar, and took them back the following day for submission to the PFSA Lahore, which he did on 22.03.2022. Moharrar Mazhar Iqbal/HC (PW‐7) confirmed that he received the sealed parcels on 20.03.2022, kept them in safe custody in the Malkhana, and returned them to the Investigating Officer on 21.03.2022 for onward transmission. Arshad Nadeem/SI further stated that he handed over the road certificate to the Moharrar upon returning from Lahore. The defence pointed to no evidence of tampering, broken seals, or deviation from prescribed procedure. The chain of custody was thus preserved and duly proved at trial.

33.The Appellant claimed that he was running a sweet shop and that M.A. (PW-2) had stolen money from his cash box, upon which he beat M.A. According to him, the present FIR was lodged in retaliation. The Appellant advanced this plea during M.A.’s cross-examination and reiterated it in his statement under section 342 Cr.P.C. However, he neither raised it during the investigation nor put it to the Complainant (PW‐1) or the Investigating Officers, Muhammad Islam (PW‐4) and Arshad Nadeem/SI (PW‐6), who were in the best position to confirm or rebut such a motive. He also produced no witness or documentary evidence in support, nor did he testify on oath under section 340(2) Cr.P.C. This plea, therefore, stands rejected.

34.Given the above, in our opinion, the prosecution has succeeded in proving the charge against the Appellant beyond a reasonable doubt. We find no justification to disagree with the conclusions reached by the trial court. Section 376(3) PPC provides that whoever commits rape of a minor or a person with a mental or physical disability shall be punished with death or imprisonment for life and a fine. In this case, the prosecution asserted that M.A. was 12 or 13 years old at the time of the incident, and

this assertion was not contested during trial. The Additional Sessions Judge, therefore, rightly applied the enhanced sentencing provision. Accordingly, Criminal Appeal No. 420/J/2023 is dismissed, and the conviction and sentence awarded to the Appellant through the impugned judgment dated 28.09.2023 are upheld.

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

Announced in open court on _____________________

Judge Judge

Approved for reporting

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