Stereo.

HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH,
MULTAN.
JUDICIAL DEPARTMENT

Criminal Appeal No.812 of 2022.

Abdul Basit
vs.
The State etc.

JUDGMENT

Date of hearing: 14.10.2024.

Appellant by: Sh. Muhammad Raheem, Advocate.

Complainant by: Mr. Muhammad Akbar Khan Mughal, Advocate.

State by: Mr. Shahid Aleem, District Public Prosecutor with

Muhammad Ramzan Sub-Inspector.

MUHAMMAD AMJAD RAFIQ, J:- Abdul Basit, hereinafter

to be called as “accused/appellant” faced trial before learned
Additional Sessions Judge/GBV, Multan in case FIR No.354 dated
24.05.2018 under sections 365-B/376 PPC police station New Multan
and on conclusion of trial vide judgment dated 23.07.2022 he was
convicted under section 365-B PPC and sentenced to imprisonment
for life with fine of Rs.50,000/-, in case of default to further undergo
six month’s simple imprisonment. He was also convicted under
section 376(i) PPC and sentenced to rigorous imprisonment for fifteen
years with fine of Rs.50,000/-, in case of default to further suffer
simple imprisonment for six months; both the sentences were ordered
to run concurrently and benefit of section 382-B Cr.P.C. was
extended, hence the instant appeal.

2. According to the prosecution case as reflected from FIR

Ex.PA/2 lodged on the complaint of Nadia Shaheen (victim), she was
unmarried and living with her parents, the accused/appellant and Mst.
Haseena Bibi (since PO) used to visit her parents, thus she developed
friendship with Mst. Haseena Bibi. On 09.04.2018 at 5.00 p.m. Mst.
Haseena Bibi came to her house and took her along for making some
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purchases from Gulshan Market. On their way near Chowk

Kumharanawala the accused/appellant, already known to the victim
came on a car and offered them a drive; the victim refused but Mst.
Haseena forced, whereupon she sat in the car. At Vehari Chowk when
the car stopped, the victim reminded Mst. Haseena Bibi to go for
Gulshan Market, whereupon, Mst. Haseena pretended an urgent work
there. After a while, the accused/appellant and Mst. Haseena brought
sandwich and after eating it the victim became unconscious; both of
them took her to the house of Mst. Haseena where accused/appellant
committed rape with her with the help of Mst. Haseena and also
prepared her nude pictures. On returning to senses the victim raised
the voice, whereupon, both the accused while showing her nude
pictures threatened to upload the same on internet. The
accused/appellant continued committing rape with her and transferred
her pictures to his mobile phone for the purpose of blackmailing.
After two days when her health condition got worst, both the accused
left her at Nishtar Hospital, Multan, where from her father and brother
took her to the house. Because of intensive mental stress she did not
tell anything to them, whereas, accused/appellant constantly
threatened her to marry with him. She further narrated that as per her
knowledge the pictures which the accused/appellant had shared with
her, were still available in the mobile phone of the accused/appellant;
ultimately the victim disclosed the entire facts to her parents and
along with her complaint she also produced the pictures which the
accused/appellant had thrown in her house.

3. After registration of FIR and completion of investigation finally

report under section 173 Cr.P.C was submitted against the
accused/appellant. When charge sheeted, the accused/appellant denied
the charges and claimed to be tried, whereupon, the prosecution
examined Mst. Nadia Shaheen (victim) as PW-1; Ghulam Akbar,
father of the victim appeared in the dock as PW-2; Shakeela 944/LC
(PW-3) who took the victim to hospital for her medical examination;
Zafar Iqbal Sub-Inspector (PW-5) and Ghulam Mustafa (PW-7) had
investigated the case; Dr. Nasir Javed (PW-6) conducted potency test
of the accused/appellant; Waseem Akram Sub-Inspector (PW-9) got
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Crl. Appeal No.812 of 2022.

issued non-warrants of arrest of the accused following by

proclamation and Dr. Nighat Noureen (PW-10) medically examined
the victim and rest of the witnesses appeared and made statements
about the roles performed by them during the course of investigation.
The accused neither opted to appear in the witness box as required by
section 340(2) Cr.P.C. nor produced any evidence in defence and the
trial ended in his conviction and sentence, as detailed above.
4. Learned counsel for the appellant seeks acquittal on the grounds
of delay in FIR, delayed medicolegal examination of victim, un-
supporting medical evidence without DNA, sole testimony of victim
without corroboration with regard to act of rape. Learned District
Public Prosecutor assisted by counsel for the complainant supported
the impugned judgment due to trust worthy and confidence inspiring
statement of victim, supported by res gestae evidence of her father,
medicolegal opinion of old torn hymen being unmarried lady and
nude pictures of victim prepared by the appellant wherein he is also
visible.
5. Arguments heard. Record perused.
6. Here in the instant case, the prosecution intended to establish
the charge against the accused/appellant through the ocular account,
medical evidence and the nude pictures of the victim P-1 to P-5,
which were allegedly thrown into the house of victim and those which
were produced on behalf of the accused/appellant i.e., P-6 to P-10.
The ocular account was furnished by Mst. Nadia Shaheen
victim/complainant (PW-1) alone, whereas, statements of Ghulam
Akbar (PW-2) father of the victim is about post occurrence events,
including recovery of nude pictures P-1 to P5 produced before the
police and P-6 to P-10 on the information of accused/appellant from
his house. Conscious of the fact that the victim/complainant was the
solitary witness of the occurrence, we have thoroughly and carefully
gone through her statement to dig out that she may have falsely
involved the accused/appellant in this case in order to wreck
vengeance or it may have been a motivated attempt on the part of the
prosecution to level some score against the accused/appellant, but in
her examination-in-chief the victim reiterated the story as had been set
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Crl. Appeal No.812 of 2022.

out in the complaint/FIR and deposed about step by step events in the
same sequence. She was subjected to cross-examination at sufficient
length but nothing damaging to the prosecution or favourable to the
defence could be elicited from her mouth. By tenor of cross-
examination the defence tried to bring on record that at one point of
time the victim and the accused/appellant were residing in the same
village and parents of the accused/appellant as well as victim had
friendly relations, thus they both i.e. accused/appellant and the victim,
were known to each other. Instead of lending any support to the
defence, the admission of the victim on above aspects goes on to
strengthen the prosecution’s stance as it was the case of prosecution
itself that because of such friendly relations the accused/appellant
used to visit the house of the victim’s parents along with Mst.
Haseena Bibi, with whom the victim also developed relations and out
of such linkage she left the house along with Mst. Haseena Bibi to
make some purchases and fell prey to nefarious activity by the
accused/appellant.

7. Since the statement of the victim, direct evidence, has been

found to be worthy of credence, confidence inspiring, credible and
irrefutable, therefore, even if there is a sole witness, her statement can
safely be made basis to record conviction. As to the number of
witnesses required to establish a charge, the Supreme Court of
Pakistan in the case reported as “MUHAMMAD MANSHA versus THE
STATE” (2001 SCMR 199) with reference to Article 17(1)(b) of
Qanun-e-Shahadat, 1984 held that:-
“7. A bare perusal would reveal that the language as employed in
the 'said Article 17(1) (b) is free from any ambiguity and no
scholarly interpretation is required. The provisions as reproduced
hereinabove of the said Article would make it abundant clear that
particular number of witnesses shall not be required for the proof of
any fact meaning thereby that a fact can be proved only by a single
witness "it is not seldom that a crime has been committed in the
presence of only one witness, leaving aside those cases which are
not of uncommon occurrence, where determination of guilt depends
entirely on circumstantial evidence. If the Legislature were to insist
upon plurality witnesses, case where the testimony of a single
witness only could be available in proof of the crime, would go
unpunished. It is here that the discretion of the Presiding Judge
comes into play. The matter thus must depend upon the
circumstances of each case and the quality of the evidence of the
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Crl. Appeal No.812 of 2022.

single witness whose testimony has to be either accepted or rejected.

If such a testimony is found by the Court to be entirely reliable, there
is no legal impediment to the conviction of the accused person on
such proof. Even as the guilt of an accused person may be proved by
the testimony of a single witness, the innocence of an accused person
may be established on the testimony of a single witness, even though
considerable number of witnesses may be forthcoming to testify to
the truth of the case, for the prosecution. The Court is concerned
with the quality and not with the quantity of the evidence necessary
for proving or disproving a fact". (Principles and Digest of the Law
of Evidence by M. Monir, page 1458).

The Supreme Court further held that:-

“……..no yardstick can be fixed as to whether statement of a solitary
witness must or must not be relied upon for the simple reason that
each case has its own peculiar circumstances which shall play a
significant role and is motivating factor to determine the reliability
of a solitary witness as the said aspect of the matter is to be dilated
upon in the light of surrounding circumstances which may be taken
into consideration or otherwise. We may mention here that such
circumstances also cannot be confined within a limited sphere of any
definition because the same may be infinitely diversified by the
situation and conduct of the parties concerned. "The only general
rule that can be laid down is that the circumstances must be such as
would lead the guarded decision of a reasonable and just man to the
conclusion".

Thus, the well-recognized maxim remains that 'evidence has to be

weighed and not counted' and here in this case as discussed above the
ocular testimony though coming through one witness i.e. victim, yet
the same is consistent, unimpeachable and confidence inspiring,
therefore, is held to be sufficient to establish the charge. Reference
may be made to the case reported as “MUHAMMAD EHSAN versus
THE STATE” (2006 SCMR 1857). It has been held by Supreme Court
in case reported as “ATIF ZAREEF and other v. THE STATE” (PLD
2021 Supreme Court 550) that rape victim stands on a high pedestal
than an injured witness, because an injured witness gets the injury on
physical form while rape victim suffers psychologically and
emotionally, and single testimony is sufficient to uphold the
conviction.
8. Ghulam Akbar PW-2 father of victim deposed res gestae
evidence about condition of victim when he and his son Shahbaz met
her in Nishtar Hospital, Multan. PW-2 narrated the situation as under;

“After two days, my daughter Nadia made a call on phone and

informed us that she was present in Nishtar Hospital and her condition
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was bad. I along with my son Shahbaz went to Nishtar Hospital

wherefrom, we brought back Mst. Nadia to our home. We kept on
asking what had happened with her but she did not tell us anything and
used to weep.”

Similarly, during cross examination he responded as under;

“When we had been asking our daughter Mst. Nadia where she was
for two days but she started to weep and remained silent. My wife
had also been asking about the reason of her weeping but she said
nothing to her.”

He has also stated the fact of collection of nude pictures from his
house allegedly thrown by the appellant, which has a support to
prosecution case. He deposed in his examination in chief that we had
family relation with accused Abdul Basit and Haseena Bibi co-
accused (since PO). He had no axe to grind against the
accused/appellant, nor anything was spoken against him by the
defence. His support to save her family honour is reflected from the
fact that he is pursuing the case and is present before us even in this
appeal proceedings.

9. In addition to the above, five nude pictures allegedly thrown by

the accused/appellant in the house of the victim, were also produced
before the Investigating Officer at the time of registration of case,
however, were taken into possession after three days through recovery
memo P-1 to P-5 (Ex.PC) and accused also produced similar pictures
before the police P-6 to P-10 (Ex.PD) on call from his house. Though
no evidence is available that who had produced such pictures from the
accused side, likewise it has been admitted by the victim during cross-
examination that no one knew that who had thrown the pictures (P-1
to P-5) in her house, but the pictures produced by the complainant
party clearly show that first part of the prosecution story stands
proved which was to the effect that accused after making nude
pictures of the victim started blackmailing for commission of rape
with her.

10. We have observed that in one of the nude pictures P-1 to P-5
and P-6 to P-10, the accused/appellant is also visible while sitting with
the side of the victim who fell unconscious. The information
contained in the picture clearly speaks about the story of the victim
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Crl. Appeal No.812 of 2022.

that in a condition of unconsciousness her nude pictures were

prepared by the accused/appellant, therefore, the question before us is
as to whether such pictures could be used as evidence in support of
prosecution case. It is trite that an audio/video clip including
snaps/photographs as evidence maintains a dual character in the law
of evidence; it is termed as document as well as a material thing
(physical evidence), also known as real evidence. It does carry
information that includes expression, gestures, voice and video;
therefore, such clips/snaps are sought to be produced before the Court
to prove the ‘information’ contained in it as evidence of facts recorded
therein and oral account of which is to be spoken by a witness and not
the document alone. While as material thing it is to be produced for
the inspection of court. Principles of evidence relating to admissibility
of documents are fully applicable on such type of evidence;
permission and sanction of law to bring on record evidence if it is in
the form of document is regulated under Article 139 of Qanun-e-
Shahadat Order, 1984 (the Order). This Article in the light of
illustration therein authorizes the Court to ask, when any witness is
making statement about a fact, to support his contention with any
document if such fact is incorporated therein. The room for such
discretion of Court is obviously reflective of farsighted wisdom of
legislature to cater to the requirement of an emerging need of
evidence in a particular situation for the purpose of corroboration to
fortify or strengthen the deposition; even otherwise best evidence rule
says that documentary evidence runs over or defeats the oral evidence
under the maxim “res ipsa liquitor”. The second status of such
evidence is of material thing (physical evidence) or real evidence
which is produced for the inspection of Court as ordained in second
proviso to Article 71 of The Order: -
“Provided further that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court
may, if it thinks fit, require the production of such material thing for
its inspection”

Articles 139 & 71 of the Order in detail in this context have been
discussed and explained in a case reported as “NUMAN alias NOMI
and others Versus The STATE” (2023 P Cr. L J 1394).
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Crl. Appeal No.812 of 2022.

11. In a book “THE MODERN LAW OF EVIDENCE (Third

edition) by Adrian Keane published by Butterworths (1994), the
author while referring to a verdict of Sir Jocelyn Smith P, passed in a
case reported as “The Statue of Liberty” [1968] 1 WLR 739 mentions
as under;

“It is tempting, on the basis of these words of Sir Jocelyn Smith P, to

conclude that photographs and films, the relevance of which can be
established by the testimony of someone with personal knowledge of
the circumstance in which the photographs or films was taken or made,
are admissible items of real evidence and can never give rise to
problems of a hearsay nature. If the evidence of a witness to certain
events is admissible, it may be reasoned, then photographs or films
recording those same events should be no less admissible.”

In R v Cook [1987] 1 All ER 1049 (CA) at page 1054, Watkins

LJ has gone so far as to state that photograph, together with the sketch
and photofit, are in a class of evidence of their own to which neither
the rule against hearsay nor rule against previous consistent or self-
serving statements applies.
In R v Williams (1984) 79 Cr App Rep 220 (CA), the Court of
Appeal entertained no doubt that photographs taken by security
cameras installed at a building society office at which an armed
robbery was attempted, were admissible in evidence, being relevant to
the issue of both whether an offence was committed and, if so, who
committed it. It seems that it is not necessary to prove that the
photographic material is original or an authentic copy; proof that the
material relates to the events in question will suffice. Case reported as
“The Road We’re Travelling On, V Treacy” [1989] New Law
Journal (NLJ) 1079 is referred. In the attending circumstance and on
the strength of above case laws, pictures P-1 to P5 can validly be used
against the accused/appellant. In the case reported as “MUHAMMAD
ZAMAN versus The STATE and others” (2014 SCMR 749), the
Supreme Court of Pakistan apart from other evidence relied on the
pictures produced in evidence during trial and converted acquittal of
the accused into their conviction.

12. We have noted that such pictures were put to the

accused/appellant during his statement under section 342 Cr.P.C. for
seeking his explanation but neither he challenged such pictures in any
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manner during cross-examination nor gave any explanation in his

statement under section 342 Cr.P.C. Silence of the accused/appellant
over such an important factor connotes that there was nothing to
defend against such nude pictures, thus the requirement of law for
using these snaps/pictures is complete as highlighted above and these
can safely be used as evidence.

13. Here in this case, undoubtedly, the FIR was registered after
almost one and half month of the crime having been committed but
such delay in reporting the matter to the police is immaterial in the
sense that throughout it has been stance of the victim that her nude
pictures were taken by the accused/appellant, she was blackmailed
and she fell victim number of times during her captivity under such
pressure and fear, therefore, she kept mum in order to save her and the
family honour but when her nude pictures were thrown in her house
and the matter stood disclosed to family members, she narrated the
whole occurrence. Delay in reporting the matter was responded by her
during cross examination as under:-

“It is correct that I remained silent for about one and half month
after the occurrence and did not get the case registered against the
accused. There were thoughts in my mind for reporting the matter
to police but due to intimidation of the accused, I abstained.”

Another reason for delay in registration of FIR was also deposed by

PW-2 in following words:-

“I took my daughter with me to P.S., New Multan and the police of

said police station sent us to women police center. For few days,
the police had been putting off and ultimately on 21.05.2018, they
received application from me which is Exh. P-A.”

Thus, victim being an educated lady with qualification of MA English

had definitely been thinking hundred times about her family honour as
well as her social and practical life before reporting the matter to
police. Even otherwise, the fact that the modesty of a virgin girl was
violated by sexual assault makes understandable the apprehension of
the victim and her family in approaching the police immediately.
Delay in reporting the crime to the police in respect of an offence
involving a person’s honour and reputation which society may view
unsympathetically could prey on the minds of a victim and her family
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and deter them to go to the police. Reliance in this respect is palced on

case reported as “HAMID KHAN Versus THE STATE” (1981 SCMR
448).

14. Though the medical evidence does not contain any fact that
sexual act was committed with the victim by force but it is clear from
the statement of victim that she was under the effect of intoxication as
well as fear of nude pictures, therefore, in either of the situation she
could not resist the act of rape, but otherwise, of course the said act of
intercourse was against her will and consent, which is the requirement
of section 375 PPC. During medical examination Dr. Nighat Noureen
PW-10 also found hymen of victim as old torn, though she was
unmarried but doctor was not even cross examined by the defence
about any fact contained in MLR. It is in the evidence that delayed
medicolegal examination was due to the reason victim was terrified
and this fact she has disclosed, while responding to questions during
cross examination, as under;

“My father and my brother had asked me to take me to the doctor but I
refused and insisted to take me to home. My parents were insisting me for
my medical treatment but I was scared and terrified that I refused and I
said that I would not get out of the room.”

15. Prosecution has also produced Dr. Nasir Javed PW-6 who had
examined the accused/appellant on 14/10/2020 and found him potent
to perform sexual act; his observations in this respect are recorded in
MLR, Ex.PP; therefore, such examination is also a relevant fact
showing ability of accused/appellant to commit rape with the victim.

16. Learned counsel for the complainant tried to show the Bench
some FIRs registered against the appellant for his involvement in
offences of murder and dacoity to assert his bad character. We are
afraid such course is not permissible under the law, and even
otherwise bad character of accused in criminal cases is not relevant
under Article 68 of the Order; but perusal of evidence shows that
defence itself conceded the involvement of the appellant in offence of
dacoity while putting question upon the victim during her cross
examination, which turned our attention to Article 27 of the Order
dealing with relevancy of facts showing existence of state of mind, or
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Crl. Appeal No.812 of 2022.

of body or bodily feeling. In the evidence of this case facts were

brought on record that the appellant has affiliation with victim since
her childhood and also wanted to marry her, therefore what he has
done cannot be regarded as innocent mistake rather his state of mind
and bodily feeling roasted her to commit such a heinous offence.
Thus, his inclination and attraction towards victim is a relevant fact in
this case which can safely be read against him for his intention to
commit act of rape and preparation of nude pictures.

17. For what has been discussed above, it is evident that

prosecution has proved the case against the appellant beyond shadow
of reasonable doubt, a standard requisite to sustain a criminal charge.
There is no legitimate exception to findings arrived at by the learned
trial court with respect to conviction and quantum of sentence
awarded to the accused/appellant. The instant appeal, therefore, being
devoid of merit, is dismissed. The case property, if any, shall be dealt
with as ordered by the learned trial court and the record of the learned
trial court be sent back immediately.

(TARIQ SALEEM SHEIKH) (MUHAMMAD AMJAD RAFIQ)

JUDGE JUDGE
Signed on_____________

Approved for reporting.

JUDGE. JUDGE.
Javed*