Criminal law

--- Recovery evidence --- Evidentiary value where ocular account disbelieved --- Scope --- Recoveries of crime empties and weapons supported by a positive forensic report are pieces of circumstantial evidence and if the direct ocular evidence is disbelieved and discarded, such circumstantial evidence cannot, in isolation, form the basis for a conviction on a capital charge --- Recovery can only corroborate reliable direct evidence; it cannot replace it.

--- Circumstantial evidence --- Weight and efficacy --- Requirement of conjunction with reliable direct evidence --- Scope --- Circumstantial evidence derives its weight and efficacy only when considered in conjunction with reliable direct evidence, and not in isolation.

--- Benefit of doubt --- Single circumstance creating doubt --- Entitlement as matter of right --- For the acquittal of an accused, it is not necessary that multiple circumstances creating doubt should exist --- A single reasonable doubt arising in a prudent mind is sufficient to entitle an accused to the benefit of doubt as a matter of legal right, not as a matter of grace.

--- Related witness --- Scope --- Mere relationship does not, per se, render a witness unworthy of reliance --- What is required is that the testimony of such a witness must be scrutinised with care.

--- Recovery of weapon and Forensic Laboratory reports --- Joint transmission --- Scope --- Forensic evidence regarding the murder weapon (30-bore pistol) and crime empties is rendered inconsequential if the weapon and the empties are transmitted to the Forensic Laboratory together.

--- S. 376 --- Rape --- Delay in lodging FIR --- Conduct of complainant --- Effect --- Where the occurrence took place seven months prior to the registration of FIR and the complainant remained mum for almost seven months, the long silence of the complainant for a period of seven months speaks volumes against her conduct, therefore the story narrated by the complainant with the delay of seven months regarding forcible rape cannot be relied upon blindly.

--- Ss. 376 & 496-B --- Rape --- Fornication --- Conversion of conviction --- Scope --- The accused was not initially charged with section 496-B and was charged under section 376, it would not be appropriate merely for the purposes of reducing the sentence to modify a conviction under section 376 to a conviction under section 496-B which would be against the basic principles of law which states that to convict a person under a particular offense all the ingredients of that offense must be proved beyond reasonable doubt.

--- Ss. 376 & 496-B --- Rape --- Conversion of charge of rape into zina with consent --- Delay of seven months in lodging FIR --- Assessment of complainant’s conduct --- Effect --- Complainant alleged that she was raped by the accused at pistol point about seven months prior to the registration of the FIR --- A child was born due to the act of the accused and he was the biological father, which was confirmed by the DNA report --- The Trial Court convicted the accused under section 376, PPC, and the High Court dismissed the appeal --- Validity --- The complainant alleged that at about 05:30 AM, she went to the forest near her house to answer the call of nature where the accused was already hiding and forcibly committed rape at pistol point --- It is not understandable as to how the accused knew the complainant would come to the forest at that time, and the prosecution case is silent in this respect --- Moreover, no resistance was offered, the medical officer noted no healed marks of violence on her body, and no torn clothes were produced --- Despite the occurrence taking place near a residential area, no hue and cry was raised to attract the people of the area --- It is noteworthy that after the occurrence, she remained mum for almost seven months while living with her family; such long silence speaks volumes against her conduct, and her story cannot be relied upon blindly --- While a pistol was recovered, it was not used during the occurrence --- The allegation of sexual intercourse has been proved through the evidence of the complainant, supported by the DNA and medical evidence, which remained unshaken and is confidence-inspiring --- However, these facts show it was not a case of forcible rape, but rather an offense of zina with consent (fornication) punishable under section 496-B, PPC --- After examining the entire prosecution case, Supreme Court came to the conclusion that this was not a case of rape as envisaged under section 376, PPC; the impugned judgment was modified, the conviction under section 376, PPC was set aside, and the accused was instead convicted under section 496-B, PPC.

--- Ss. 376 & 496-B --- Qanun-e-Shahadat (10 of 1984), Art. 129 --- Rape --- Delay in lodging FIR --- Effect --- Birth of child --- DNA evidence --- Absence of marks of violence --- Armed accused --- Assessment --- Briefly, the matter concerns a rape of a girl who is of approximately 24 years of age, resultantly a child was born as a result of such occurrence which is established through DNA report, that the accused and the complainant are biological parents of such new born child --- The crime report of the said incident was lodged after a delay of approximately seven months --- Held; there is no cavil on the fact that cases of rape, as well as cases of sexual harassment go unreported in our society, the victims are fearful of the consequences of reporting, a victim of rape or sexual harassment often has to justify his own family members in regards to his own character at the time when he / she reports about the particular occurrence --- In the case in hand, the victim is of young age, unmarried, her parents have passed away, she has an elder brother and record also shows evidence of threats forwarded to the victim, it clearly makes sense as to how reluctant a girl would be in these circumstances to share such an unfortunate occurrence with her own brother --- It appeals to us as in common course of natural events that her reluctance to report would have continued till she would have known about her pregnancy --- Delay in reporting sexual assault to the Police is therefore not very material and delay in such cases is not fatal to the case of prosecution keeping in mind the dilemma of our society --- As far as the contention is concerned that there were no marks of violence on body of victim and such shall favor the accused, I am of a different view, as the accused was carrying a weapon, and any victim would be reluctant to resist such a perpetrator with a weapon in hand --- Even otherwise, the medical examination could have not effectively captured the physical resistance by victim after a time span of approximately seven months --- Petition for leave to appeal was dismissed.

--- Ss. 376 & 496-B --- Rape --- Fornication --- Conversion of conviction --- Scope --- The court cannot convict a person on the basis of preponderance of evidence or on mere assumptions that if one particular act is not proved, meaning thereby in cases where a victim fails to prove the offence of rape, it will not automatically establish the consent of the victim.

--- Alteration of conviction --- Lesser offence --- Prerequisites --- Standard of proof --- Scope --- If an act carries two punishments listed under two or more offences under penalizing statute(s), the lesser can be awarded in view of mitigating circumstances --- However, this applies to the situation where the act squarely falls within both of the said offences and the scenario would completely change if the required ingredients of the offence to which it will be altered are not fulfilled --- The standard of proof in criminal cases is that the prosecution shall establish the guilt beyond reasonable doubt, unlike the preponderance of evidence in civil matters --- To alter the conviction under one provision to another will mandatorily require that the basic ingredients of the provision to which it will be altered must be fulfilled beyond reasonable doubt.

--- Abscondence --- Scope --- Unexplained disappearance of the accused immediately after the occurrence from his place of residence, knowing that the deceased was his co-villager, strongly indicates towards his guilt.

--- Art. 46 --- Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant --- Dying declaration --- Scope --- A dying declaration is admissible in evidence under Article 46 of the Qanun-e-Shahadat Order, 1984, without any pre-condition that the maker should be in imminent expectation of death --- Normally, the Courts attach great importance to a dying declaration, presuming that “truth sits upon the lips of the dying man” --- The shadow of impending death is in itself a guarantee of truth of the statement of the deceased regarding the circumstances leading to his death --- The grounds for admissibility are: firstly, the necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might defeat the ends of justice; and, secondly, the sense of impending death, which creates a sanction equal to the obligation of oath --- The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice --- The principle on which dying declaration is admitted in evidence is indicated in legal maxim “Nemo Moritus Proesumitur Mentire”— a man will not meet his maker with a lie in his mouth --- Yet, it is always put to close scrutiny before placing reliance thereon, for such statement is seldom on oath and its maker is not available for cross-examination, and also because our society’s moral fibre has gone very weak.

--- Non-recovery of crime empties --- Scope --- Where crime was committed at a railway track near masjid, Supreme Court observed that there was strong possibility that the people of the vicinity would have attracted to the crime scene after the occurrence, and some crime empties would have been misplaced due to rush of people --- Such defect was not considered fatal to the prosecution’s case.

--- Ss. 164 & 364 --- Judicial confession --- Voluntariness --- Legal safeguards --- Corroborative value --- Confessional statements recorded strictly in accordance with mandatory requirements --- Sufficient time for reflection afforded --- No evidence of coercion, inducement or duress --- Confessional statements found to be voluntary, mutually corroborative and consistent on material particulars --- Judicial confessions treated as strong corroborative evidence.