2022 P Cr (PLP)

TARIQ SALEEM SHEIKH, J.

Through this application under section 498, Cr.P.C. the Petitioner seeks pre-arrest bail in case FIR No.396/2021 dated 5.8.2021 registered at Police Station Saddar Kamalia, District Toba Tek Singh, for an offence under section 377B, P.P.C.

2. As per crime report, the prosecution case is that on 29.07.2021 at about 5:00 p.m. the Complainant's six-years-old son Yasir was playing in the street near his house when the Petitioner deceitfully took him into the fields, removed his clothes and began to fondle him. Yasir screamed which attracted the Complainant and other people of the area to the scene and on their arrival the Petitioner fled.

3. The learned counsel for the Petitioner contended that the Petitioner was innocent and the FIR against him was mala fide. The entire evidence against him was fabricated and could not be relied upon without corroboration. Medical examination of Yasir was necessary in the circumstances of the instant case but that was not done. The learned counsel maintained that the fact that the Complainant got the FIR registered with an unexplained delay of seven days also reflected on the veracity of her version.

4. The learned Deputy Prosecutor General, assisted by the learned counsel for the Complainant, submitted that sections 377A and 377B, P.P.C. aim to protect children against sexually explicit conduct. The Complainant had no motive to make false accusations against the Petitioner. The prosecution case was supported by two independent witnesses apart from the Complainant and the victim. There was sufficient incriminating evidence against the Petitioner so he was not entitled to pre-arrest bail which was an extraordinary relief.

5. The United Nations Universal Declaration of Human Rights (1948) recognizes the right of motherhood and childhood to "special protection and assistance" and the right of all children to "social protection".2 The United Nations Declaration of the Rights of the Child (1959) has enunciated ten principles for the protection of children's rights.3 The United Nations Convention on the Rights of the Child (CRC)4, while appreciating that there is "need to extend particular care to the child" has enumerated a full range of rights to which they are entitled. Kirsten Sandberg states that children's rights under the CRC are commonly divided into three categories, namely, protection rights, provision rights and participation rights but the fact is that they are indivisible and holistic. Hence, they should not be seen separately or in isolation from each other. In protecting children, the interplay between different types of rights is important.5 Therefore, the UN Committee on the Rights of the Child (hereinafter referred to as the "UN Committee") in General Comment No.13 (2011) has emphasised that the State parties should adopt a child rights approach at all levels - legislative, administrative, social and educational - which envisages that the child should be viewed as a right holder and not a beneficiary of adults' benevolence.6 General Comment No.21 (2017) paragraph 10 further explains: "In a child rights approach, the process of realizing child's rights is as important as the end result. A child rights approach ensures respect for dignity, life, survival, well-being, health, development, participation and non-discrimination of the child as a right holder."7

6. Child sexual abuse has both short and long-term effects on the victim which include depression, anxiety, post-traumatic stress disorder and psychological trauma. In cases where force is used, the child may suffer physical injury as well. Ben Mathews writes: " in a civilized society, individuals, institutions and broader governing social systems possess an ethical responsibility to prevent and respond appropriately to child sexual abuse All these duties can be understood as consistent with bioethical principles of justice, beneficence (to do good), non-maleficence (not to do harm), and autonomy (self-rule) (Beauchamp and Childress 2013). They are congruent with principles of social justice and public health (Krieger 2005, 2011). They are also consistent with fundamental principles of liberal society and responsibility of the State and of the individual as properly understand they are also a manifestation of Nussbaum's Capabilities Approach, which is fundamentally concerned with requiring the State to secure, protect and foster capabilities in each individual citizen, as without a certain level of these capabilities, it is not possible for an individual to lead a life of sufficient quality, dignity, autonomy and freedom (Nussbaum 2011)."8

7. Articles 19 and 34 of the CRC obligate the States parties to protect the children from sexual abuse. They read as under: Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.

8. In paragraph 25 of General Comment No.13, supra, the UN Committee explained that sexual abuse and exploitation includes:9 (a) The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity;10 (b) The use of children in commercial sexual exploitation; and (c) The use of children in audio or visual images of child sexual abuse; (d) Child prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes and forced marriage. Many children experience sexual victimization which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic.

9. The United Nations' Sustainable Development Goals has set an agenda for global human development efforts from 2015 to 2030. Significantly, these Goals have added two new targets acknowledging child abuse as a fundamental obstacle to health, demanding concerted action. Target 5.2 aims to eliminate all forms of violence against women and girls, including sexual exploitation, and Target 16.2 aims to end abuse and exploitation of children. Governments are required to report on progress against these targets.

10. Pakistan ratified CRC on 12 November 1990 with certain reservations which were withdrawn in 1997. It is a party to three other international instruments which directly or indirectly aim at improving the rights of the child: (a) the Convention for the Elimination of All forms of Discrimination Against Women (CEDEW); (b) the Declaration and Agenda for Action adopted at the issue of the World Congress against Commercial Sexual Exploitation of Children; and (c) the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Form of Child Labour Convention (C182).

11. In order to discharge its international obligations, more particularly Articles 19 and 34 of the CRC, Pakistan has amended its Penal Code of 1860 to insert sections 377A and 377B therein to criminalize various lascivious acts.11 They read as follows: 377A. Sexual abuse.

Whoever employs, uses, forces, persuades, induces, entices, or coerces any person to engage in, or assist any other person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or simulation of such conduct either independently or in conjunction with other acts, with or without consent where age of person is less than eighteen years, is said to commit the offence of sexual abuse. 377B. Punishment.

Whoever commits the offence of sexual abuse shall be punished with imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees.

12. The Criminal Law (Amendment) (Offences Relating to Rape) Act XLIV of 2016 also inserted sub-sections (1A), (3) and (4) in section 376, P.P.C. and introduced section 376A, P.P.C. to provide additional protection to the children. Section 376(1A) states that whoever commits an offence under section 377 (unnatural offence) or under section 377B and in the course of such commission causes any hurt of the nature stipulated in the said clause shall be punished with death or imprisonment for life and fine. Section 376(3) enjoins that whoever rapes a minor or a person with mental or physical disability and section 376(4) mandates that whenever a public servant (including a police officer, medical officer or jailor) commits rape taking advantage of his official position shall also be punished the same way. Section 376A sanctions disclosure of the identity of victim of rape and other sexual abuses.

13. Let's now turn to the case on hand. At the very outset, it is observed that the Petitioner is nominated in the FIR with specific allegations. It is true that the Complainant approached the police seven days after the happening but an adverse inference cannot be drawn against her on that score at the bail stage because in our society the people generally do not report such incidents immediately. The overall impact of the delay, if any, is to be determined by the court on the conclusion of the trial when the testimony of all the witnesses is recorded and they are duly cross-examined.

14. The Petitioner has made a bald allegation that the FIR against him is motivated. However, he has not placed any material on record which may even be suggestive of it. The law is well settled that mala fides must be pleaded with particularity. Vague and general allegations have no value. Further, the onus to prove the mala fides is on the person who alleges. A number of authorities hold that proof of mala fides is a sine qua non for pre-arrest bail.12

15. Recently, in Shahzada Qaiser Arfat alias Qaiser v. The State and another (PLD 2021 SC 708) the Hon'ble Supreme Court of Pakistan looked at the concept of pre-arrest bail through the human rights lens and observed that it is rooted in the rights to liberty, dignity, due process and fair trial. It ruled that while deciding applications for pre-arrest bail the courts should see whether there is sufficient incriminating material against the accused. In the case before me there is plenty of such material against the Petitioner. The prosecution case is supported by the Complainant, PWs Muhammad Imran and Saeed Ahmad and the victim himself who have got their statements recorded under section 161 Cr.P.C. During investigation the police have also found that the Petitioner has committed the alleged offence.

16. Yasir's own statement is by far the most important. In Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another (PLD 2020 SC 146) the apex Court pointed out that there is a crucial distinction between a child witness who is a witness to the crime and the one who is himself the victim thereof.

17. All the acts described in section 377A PPC are, without exception, considered to be criminal offences if the victim is less than 18 years old. This holds true regardless of the age of the accused and the consent of the victim is inconsequential. In the instant case, the Petitioner is accused of fondling the boy. Since there is no allegation that he copulated with him or attempted it, there was little possibility of his getting injured. Hence, his medical examination was not required.

18. In view of what has been discussed above, the Petitioner does not have a case for pre-arrest bail. This petition is accordingly dismissed.

19. The ultimate fate of a case depends on the evidence produced at the trial. The prosecution succeeds only if it's witnesses stand the test of cross-examination and are found truthful and reliable. The learned trial court shall decide the instant case keeping this principle in view without being influenced with this order. All the observations made above are tentative in nature.

20. I also need to observe that sections 377A and 377B, P.P.C. are prone to misuse by unscrupulous persons. True, the child is to be protected against sexual abuse but at the same time the innocent people at the other end have also to be shielded against false accusations. To keep the balance it is directed that all cases involving an offence under section 377B shall be decided expeditiously preferably within six months and where the charge is found to be false and vexatious criminal proceedings under the relevant provisions of law shall be initiated against all those who perpetrated or connived in it. The Registrar of this Court shall circulate a copy of this order to all the concerned for compliance.

21. The learned trial court shall also decide the present case within the stipulated period. KMZ/M-239/L Order accordingly.