Adam Vs Mst. Laiba and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 743-P of 2024

Adam VS Mst. Laiba and others

JUDGMENT

Date of hearing: 24.09.2025.

Appellant by: Mr. Shabbir Hussain Gigyani, Advocate.

State by: Mr. Amirzeb, AAG.

Respondent by: Mian Akhtar Ali Shah, Advocate.

SAHIBZADA ASADULLAH, J. Through the instant criminal appeal, the appellant Adam, son of Mushtaq, has questioned the legality and validity of judgment dated 31.08.2024 rendered by learned Additional Sessions Judge- VI/Judge Child Protection Court, Mardan, delivered in case FIR No. 743 dated 10.09.2023 under sections 376, 452 PPC read with section 53 of the Khyber Pakhtunkhwa Child Protection & Welfare Act, 2010, registered at Police Station Choora, District Mardan, whereby the learned Judge has acquitted the co-accused Hamza, while convicted and sentenced the appellant as under:

I. U/s 376 PPC to imprisonment for life and fine of Rs. 500,000/- (five lac), payable to the victim Ayesha, whereas in default of payment of fine, to undergo simple imprisonment for a term of six (06) months.

II. U/s 452 PPC to imprisonment for seven

(07)years and a fine of Rs. 100,000/-, payable to the victim Ayesha and in default whereof, to undergo simple imprisonment for a term of three (03) months.

Benefit of section 382-B Cr.P.C. is extended to the appellant. All the sentences of imprisonment shall run concurrently.

2.Concise facts leading to

registration of the instant FIR are that the complainant, Mst. Laiba, reported to the local Police that on 09.09.2023, when her parents had gone to the house of her father’s maternal uncle to offer condolences, she, alongwith Mst.

Ayesha, was present at home; that the accused Adam and Hamza forcibly entered the house and took them to the kitchen, where accused Hamza committed rape upon her, while accused Adam committed rape upon Mst.

Ayesha.

3.After completion of investigation, complete challan was put in Court. Provisions of section 265-C Cr.P.C. were complied with and the appellant alongwith acquitted co- accused, was charge sheeted, to which they denied pleading their guilt and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 11 witnesses. After closure of prosecution evidence, statements of accused were recorded under section 342 Cr.P.C, wherein they posed innocence, however, neither they wished to be examined on oath as required under section 340 (2) Cr.P.C, nor wanted to produce evidence in defence. The learned trial Court, after full- fledged trial acquitted the co-accused Hamza, while convicted and sentenced the appellant vide the impugned judgment, hence, this appeal.

4.Heard. Record perused.

5.The shocking incident was reported to the local police on the very next day of its occurrence. The complainant narrated the circumstances in which the accused entered the house, and stated that she, alongwith Mst.

Ayesha, was taken into the kitchen where both were subjected to rape. Injury sheets were prepared, and the victims were produced before

the medical officer for examination. Their vaginal and anal swabs, three in number, were collected and dispatched to the forensic science laboratory for analysis. The report received revealed that the anal swabs were negative, whereas the vaginal swabs taken from the victims tested positive for the presence of semen. The accused were arrested and their physical custody was obtained. During the course of investigation, they were also produced before the doctor to confirm their potency. Upon completion of investigation, the accused were sent to jail to face trial. At the conclusion of trial, one of the accused, namely Adam. was convicted, whereas the other accused, Hamza, was acquitted of the charge.

The learned trial Court, after applying its judicial mind to the circumstances of the case and appreciating the evidence available on record, reached the conclusion regarding the involvement of the appellant Adam. As regards Hamza, however, he was acquitted mainly on the basis of a compromise, and also because PW-01, Mst. Laiba, did not attribute the act of rape to him.

6.The question before this Court is whether the approach adopted by the learned trial Court in acquitting one of the accused

while convicting the other was legally justified.

In particular, it has to be seen whether the plea of compromise, being inconsistent with the prosecution case, should have been extended in benefit to the appellant as well. In order to address these issues, we examined the record with the valuable assistance of learned counsel for the parties. The points for determination before this Court are as to whether the incident occurred in the manner and at the time alleged by the prosecution; whether the medical evidence supports the prosecution version;

whether the non-supportive testimony of one witness affects the credibility of the other;

whether the testimony of PW-07, Mst. Ayesha, and PW-01, Mst. Laiba, can be safely relied upon and whether the prosecution has established the involvement of the appellant beyond reasonable doubt.

7.For appreciation of the evidence, we examined in particular the depositions of the victims. The complainant, PW-01, Mst.

Laiba, explained the manner in which the accused entered the house and took both victims into the kitchen, where they were raped. The testimony of PW-07, Mst. Ayesha, substantially supported the stance of the complainant, though with a slight improvement

regarding the manner of entry of the accused, alleging that they scaled the boundary wall.

Both witnesses were cross-examined on material aspects of the case, but the defense could not succeed in creating material dents in their testimony. We are now to appreciate the manner in which the incident occurred, and to ascertain whether, apart from the victims, any other person had witnessed the shocking occurrence. The record reveals, and the victims themselves admitted, that as uncle of father of Mst. Laiba had died, and for condolence the entire family had gone to attend the bereaved household. Thus, on the day of occurrence, Mst. Laiba and Mst. Ayesha were left all alone in the house. It has further come on record that in the absence of the elders of the family, the accused gained entry into the house and allegedly committed rape upon the victims.

Mst. Laiba, examined as PW-01, appeared before the Court. In her cross-examination, however, she did not support the prosecution case, rather she extended her favour towards the accused, expressed ignorance about the involvement of Hamza in the commission of the offence, and categorically denied identifying him at the time of occurrence. She further admitted that Hamza did not commit rape

upon her, nor did she accept the presence of the co-accused in the house at the relevant time. Despite extensive cross-examination, she adhered to her stance, thereby supporting the case of the defence and not the prosecution. In these circumstances, this Court is left only with the testimony of the other victim, Mst.

Ayesha, examined as PW-07. Though she supported the prosecution version, yet when her solitary testimony is weighed in the light of the attending circumstances, caution and circumspection are demanded before relying upon it as the sole basis for conviction.

8.The victims were medically

examined, both vaginal and anal swabs were collected and sent for forensic analysis. The laboratory report confirmed the presence of semen on the vaginal swabs but was negative in respect of the anal swabs. The medical officer, who appeared as PW-02 was questioned in detail. She stated that she found no visible marks of violence, scratches, or bruises on the bodies of the victims. She further opined that the victims were not subjected to sexual intercourse for the first time rather they appeared to have been accustomed to such activity, though the record is silent as to when, and by whom, any such act was committed

previously. When medical evidence does not lend support to the involvement of the accused, and when the prime witness, i.e., PW-01 Mst.

Laiba, the complainant and owner of the house, did not support the prosecution story, this Court finds it unsafe to rest conviction solely on the testimony of PW-07, Mst. Ayesha.

Reliance is placed on the judgment of the apex court titled “Muhammad Azam vs. The State & others” (2025 SCMR 810), wherein, it has been held as under:

“So far as medical furnished by lady Dr. Shabana Tabassam (PW.1), who had medically examined the victim girl, is concerned, no doubt, as per her statement hymen of the victim girl were torn but healed and her vigina was admitting two fingers easily, hence, sexual intercourse was committed with the victim girl. The testimony of lady doctor, in absence of any other evidence of unimpeachable character would not be sufficient to prove that the sexual intercourse was committed with the victim girl by the appellant.”

9.This Court further examined

whether the prosecution succeeded in producing the most essential and reliable evidence to bring home the charge. In this regard, the testimony of the Investigating Officer assumes significance. The Investigating Officer narrated how he visited the spot and

effected certain recoveries, however, he admitted that he did not record the statements of the other inmates of the house. More importantly, he conceded that no DNA test was conducted, nor were semen samples of the accused obtained. In the absence of semen grouping, the presence of semen on the vaginal swabs cannot be connected with any of the accused. Without such scientific corroboration, this crucial piece of evidence loses its evidentiary worth, so in light of the unreliable testimony of PW-01, the uncorroborated and solitary statement of PW-07, the inconclusive medical evidence, and the failure of the prosecution to conduct DNA profiling, this Court is not inclined to place reliance upon the case of the prosecution. On one hand, the medical evidence is deficient to connect the accused with the commission of the offence, whereas on the other, neither the father of the victim, Mst. Laiba, came forward to record his statement, nor were the statements of any other inmates of the house recorded. In such circumstances, this Court is confident in holding that the prosecution failed to collect the most reliable and authentic evidence in support of its claim. Reliance is placed on the judgment of the apex court titled “Haider Ali

and others vs. The State” (2016 SCMR 1554), wherein, it has been held as under:

“The only other piece of evidence available on the record is in the shape of a positive report of the Chemical Examiner but we note that no DNA test had been conducted in this case nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to any of the petitioners or their co-accused."

10.When one of the victims, who is also the complainant of the case, did not support the prosecution story, and when the learned trial Court extended concession to the benefit of the acquitted co-accused, the question arises whether the learned trial Court was justified in declining the same concession to the present appellant, against whom only Mst. Ayesha levelled the charge. It is correct that the offence under the law is non- compoundable, and therefore compromise could not legally be effected, a fact also acknowledged by the learned trial Court, yet, once the incident is alleged to have taken place in the same house, and both victims are alleged to have been subjected to rape, then if the benefit of doubt was extended to one accused, the same principle should have been applied

consistently to the appellant as well. True it is that the offence is heinous, and equally true that it has brought social stigma upon the victims, but such considerations alone cannot determine the fate of the appellant, nor can they substitute for the required standard of proof. The entire prosecution case hinges upon two pieces of evidence, the solitary testimony of Mst. Ayesha, and the presence of semen stains on the vaginal swabs. The question for determination, therefore, is whether these alone are sufficient to hold the appellant guilty.

Once the complainant herself did not support the prosecution, and when the most natural and reliable witnesses from the household were not examined, the mere detection of semen on swabs, without any semen grouping or DNA profiling, cannot safely be relied upon to establish the guilt of the appellant. The attending circumstances show that the learned trial Court has failed to appreciate these essential aspects, and appears to have been swayed by the gravity of the charge rather than the quality of the evidence. It is true that the victim was a minor at the time of occurrence, but her distress alone cannot substitute for proof beyond reasonable doubt. In such circumstances, this Court is confident in

holding that the prosecution has failed to bring home guilt against the appellant. The impugned judgment, therefore, suffers from inherent defects, and the same calls for interference. The instant criminal appeal is allowed, the conviction recorded by the learned trial Court is unsustainable and is accordingly set aside. The appellant is acquitted of the charges leveled against him. He be set free forthwith, if not required to be detailed in connection with any other case.

Announced

Naqqash Haider Sd

JUDGE

Sd

JUDGE

Division Bench.

Hon’ble Mr. Justice Sahibzada Asadullah, J. Hon’ble Mr. Justice Muhammad Ijaz Khan, J.