Sabir Hussain Vs. The State (Criminal Appeal 434-J of 2017) Attempted rape proven without ‘forensic crutches’

Date of hearing: 05.11.2018
Court: Lahore High Court, Bahawalpur Bench, Bahawalpur.
Judge Present: Qazi Muhammad Amin Ahmed, J.
Name: Criminal Appeal No.434-J of 2017 (Sabir Hussain Vs. The State); Criminal Appeal No.488 of 2017(Sabir Hussain Vs. The State & another) & Criminal Revision No.81 of 2018 (Muhammad Shahid Vs. The State & another).

In this appeal case, the appellant sought quashing of his conviction for attempted rape under Section 376 of PPC decreed by the Learned Addl. Session Judge of Khan Pur. The defendant sought enhancement of the sentence that had been fixed by the lower court at 10 years in application of Section 382-B of the Code of Criminal Procedure 1898. The two cases were heard and decided through a single judgment by the Honourable High Court. A third appeal, brought by the superintendent of the jail in case the main appeal be upheld, was also heard in conjunction with the previous two.

The appellant and some other men had allegedly surreptitiously entered the house of the defendant’s daughter in the late hours of the night between 13 and 14 June 2016, and had attempted rape against her. Discovered by some of the family members present at the venue, they ran away before consummating forcible intercourse with the alleged victim. Due to lack of sufficient illumination in the locus delicti at the time the alleged assailant were discovered, they could not properly see nor were able to identify the assailants.

The case failed to be settled by a ponchayit, due to which the father of the girl decided to file an FIR on 18 June 2016.
Medical examination of both the appellant and the defendant was conducted.

The defendant woman was admitted at the Department of Psychiatry Sheikh Zaid Hospital Rahim Yar Khan on 15-6-2016 and, due to her condition, she could undergo gynaecological screening only on 18 June 2016, i.e.5 days after the alleged sexual assault. The female medical officer who examined her found no evidence of vaginal penetration, nor presence of male reproductive fluid, although and evidence of older ruptures of hymen margins was reported. There were instead sings of physical violence like bruises on her nose, face and neck, which were around five-day old. The medical officer in charge of her psychiatric condition excluded that the woman could have attempted suicide due to depression.

The man accused of carnal assault was also examined by a medical officer, who found him potent and capable of committing sexual assault. Nevertheless, both the forensic report for detection of seminal material and the D.N.A. profile generation gave negative results.

The Honourable High Court, while revising the judgment of the lower court, heard the cases presented by the Counsels for both parties.

The counsel for the appellant relied upon the following circumstantial evidentiary elements: the statement of the medical officer which excluded recent vaginal penetration, thus excluding commission of rape; the fact that the family of the appellant had refused to cast their vote in favour of the defendant’s victim in the local elections, thus raising a strong suspicion that the defendant had concocted the whole ‘false rape scenario’ to take revenge against them; the delay between the alleged occurrence and recourse to the law, which the counsel defined ‘inordinate’; the absence of any source of light, which prevented identification of the assailants; the prosecution’s failure to forensically establish any presence of seminal stains and the lack of any D.N.A. profile generation match; and finally the fact that the hymen of the woman showed signs of old ruptures, thus casting a doubt on her reliability as a witness.

The defendant’s case was largely based on the witness of the woman, who vividly described the assault from the witness box, repeatedly pointing out at the accused, who was present in court. She also explained that ten to fifteen, and four to five days prior to the occurrence of the nocturnal assault, the accused had teased her in sexually explicit fashion, causing her to make ‘hue and cry to the people gathered there’. The learned counsel for the defence also submitted that the medical officer’s evidence presented in court clearly showed the ordeal the victim had gone through. Moreover the officer could confirm that the age of wounds and bruises exactly matched the time the assault as reported by the defendant’s daughter.

The Honourable Justice of the High Court, having heard both parties’ pleas, began by stating that it is an established evidentiary principle that an accused cannot be convicted of a criminal charge merely due to the inaptitude of his counsel or on the basis of recklessly indiscreet cross-examination. Nevertheless, he pressed forward, the factual context of events in the case appear to be so inexorably linked with one another, that they make all details of such cross-examination disclosure impossible to be brushed aside. This was deemed to be particularly true as the prosecution was found to have discharged the onus of proof.

Justice Qazi Muhammad Amin Ahmed continued by maintaining that the prosecution’s alleged failure to prove its case on the forensic side had been blown out of proportion; in his learned opinion, the negative forensic report hugely corroborated the truthfulness of the complainant’s case because, since the appellant was surprised by the complainant’s family members before he could bring his carnal assault to its biological end, absence of seminal traces was only natural.
The Honourable Judge dismissed as ‘most uncharitably premised’ the prosecution’s attempt to impeach the complainant’s daughter’s reliability by claiming that her sexual antecedents proved her to be non-virtuous. Her straightforward and confidence-inspiring ocular account, particularly in the absence of the remotest possible taint, can ‘sustain the charge of sexual assault without forensic crutches’.

Justice Qazi went on explaining that in the present case, the Medical Officer had not ruled out the assault; she merely ‘disproportionately banked upon’ the absence of secretion’s traces without attending clinical symptoms, like the five-day old bruises and the psychological condition of shock of the woman. He therefore dismissed as ‘manifestly flawed or slipshod’ the expert’s opinion on which the whole appeal was based, stating that it ‘cannot override direct and positive proof, unambiguously spelling out culpability’.

The totality of circumstances, the Honourable Justice concluded, does not leave any space to entertain the hypothesis of innocence for the appellant, who has rightly been convicted and sentenced by the learned trial Court.

The main appeal and the superintended of jail’s conditional appeal were therefore dismissed, while the quantum of sentence awarded to the appellant was confirmed as appropriate and, consequently, the revision petition for enhancement of sentence filed by the father of the woman was dismissed.