2018 P Cr (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Muhammad Irfan, petitioner herein, is in receipt of a guilty verdict returned vide judgment dated 27-4-2017 by a learned Magistrate at Kahuta; he was indicted for having carnal knowledge against order of nature with Noman Israil, (PW-2) on 13-3-2016 and filmed him during the process and for that stands convicted under section 377 of the Pakistan Penal Code, 1860 and sentenced to 3-years' rigorous imprisonment along with fine of Rs.45000/- or to undergo six months simple imprisonment in the event of default as well as compensation in the sum of Rs.100,000/- to be recovered as arrears of land revenue or to undergo six months' simple imprisonment in lieu thereof with benefit of section 382-B of the Code of Criminal Procedure, 1898. According to the prosecution, the petitioner filmed the victim during carnal assault with a cell phone camera and while confronting the child with the images stored therein managed his silence; the incident was finally shared by the victim with his parents on 6-4-2016 whereupon a formal case was registered. During the course of investigation, pursuant to a disclosure, the petitioner led to the recovery of mobile phone handset along with memory card which on forensic analysis generated graphic details of the occurrence duly verified vide report Ex.PL, duly supported by statement of the victim besides other prosecution witnesses. Petitioner's appeal met with no better fate on 18-8-2017 before a learned Addl. Sessions Judge Camp at Kahuta and in this backdrop, the present petition was admitted for hearing on 18-9-2017.

2. Learned counsel for the petitioner contends that there is an inordinate delay in recourse to law, an aspect that escaped notice by the courts below; that there is no medical evidence to sustain the charge of carnal assault and as such there was no occasion for the learned trial Magistrate to record finding of guilt; that prosecution evidence with regard to seizure of cell phone (P-1) and photographs (P-6 to P-8) generated therefrom is discrepant and as such liable to be excluded from consideration leaving nothing in the field to sustain the charge; admissibility of forensic report Ex.PL without examination of its author has also been questioned; the bottom line is that prosecution was not able to establish the charge and interference by this Court in exercise of its revisional jurisdiction would be most called for. Mr. Qaisar Mushtaq, learned Assistant District Public Prosecutor, contrarily, defended the judgments on the ground that ocular account supported by forensic evidence successfully drove home the charge by excluding every hypothesis of petitioner's innocence; according to him, both the courts below thoroughly examined prosecution evidence in accord with the principles relating to safe administration of criminal justice, having found the prosecution case proved to the hilt beyond reasonable doubt. While relying upon forensic evidence, the learned Law Officer has referred to Article 164 of the Qanun-e-Shahadat Order, 1984 to argue that in the given facts and circumstances of the case victim's initial silence in the face of threat of embarrassing disclosure being obvious does not adversely affect the prosecution case as the stills generated from memory card (Ex.P-2) provided sufficient corroboration and as such absence of clinical findings would not adversely impact upon prosecution's case.

3. Heard. Record perused.

4. Prosecution case is primarily structured upon the statement of Noman Israil (PW-2); he has furnished graphic details of carnal assault; his initial silence speaks for itself as the petitioner threatened him with disclosure of disgustingly embarrassing material and as such hapless child could not share details of assault with the family. Stills P-6 to P-8 vividly depict the victim and have been generated through a handset recovered upon disclosure made by no other than the petitioner himself. Cross-examination on the witness and plea taken qua the charge remain inconsequential. Forensic report Ex.PL prepared by analyst Ghulam Dastagir can be looked into without reservation in view of section 9(3) of the Punjab Science Agency Act, 2007 and as such can be pressed into service to support ocular account in place of clinical finding. There is no traditional static mode to be followed to prove a criminal charge as Court must adopt a dynamic approach to employ scientific methodologies to reach out a culprit in the new era of forensics. Certainly, the approach must be in accord with the statutory safeguards so as to exclude possibility of prejudice to the accused, certainly entitled to fair trial wherein law and justice are found at speaking terms. Material relied upon by the prosecution to drive home the charge can be received in evidence in view of the provisions of Article 164 of the Qanun-e-Shahadat Order, 1984, read with section 9(3) of the Act ibid, and thus, absence of clinical findings, having regard to the peculiar facts and circumstances of the case could be dispensed through substituted reliance upon forensic data referred to above procured through technical system which is not amenable to human interference. Sciences do not purger. Even otherwise, ocular account alone is sufficient to sustain the charge inasmuch as there is no earthly reason for the child or his family hailing from a rural neighbourhood to put forth a fake charge by incurring perennial embarrassment. Criminal Revision No.212 of 2017 fails. Dismissed. JK/M-68/L Revision dismissed.