SHAHTAJ BUKHARI

F20BLAW027

Submitted to: Ms. Sana A.

PREMID ASSIGNMENT 1

CRIMINAL LAW II

16.09.2023

NHLD Kinnaird College for women, Lahore.

CASE

Atif Zareef and Others v. The State -

Criminal Appeal No.251/2020 & Criminal Petition No.667/2020 - Supreme Court of

Pakistan

PLD2021 SC 550

INTROCUTION:
In the apex court of Pakistan, there arose two legal matters demanding attention: Criminal
Appeal No. 251/2020 and Criminal Petition No. 667/2020. These cases were born out of a ruling
issued by the Lahore High Court, Rawalpindi Bench, on June 9, 2016, which itself pertained to
an antecedent legal affair identified as Criminal Appeal No. 393/2013 and Capital Sentence
Reference No. 14-T/2013. Furthermore, there existed a decree dated June 9, 2020, in which the
Lahore High Court opted not to suspend the sentences in a case designated as Crl. Misc 822/M of
2020.
This case summary furnishes a concise overview of the case facts and the involved parties. The
appellants and petitioners in these legal proceedings were Atif Zareef and associates, whereas the
state represented the opposing faction. Inside the courtroom, Sardar Abdul Raziq Khan, ASC,
advocated for the appellants/petitioners, while Mirza Abid Majeed, DPG1, stood as counsel for
the state.

At the heart of this case lay a horrifying incident: the alleged assault on a young girl named
Saadia Rani, aged 20. This summary provides a brief of the case's factual underpinning and
elaborates on the issues presented before the court. It focuses on the arguments put forth by the
legal representatives and highlights the court's perspective. The analysis encompasses the verdict
of the division bench of the Lahore High Court, which meticulously scrutinized Saadia Rani's
account, the complainant, and concluded that the prosecution had successfully substantiated its
case against certain individuals. As a consequence, the convictions and sentence imposed upon
these individuals were affirmed. Nevertheless, one of the accused parties was acquitted due to
insufficient evidence against them. The ruling sheds light on a bad practice evident in cases of
this nature - the introduction of the sexual history or character of the survivor of the assault. The
court stressed that, in such instances, the primary focus must always remain on the occurrence of
the assault, rather than shredding the character of the survivor.
To conclude, this case summary delves into the constitutional aspect of addressing a survivor's
sexual history or character within legal proceedings.

Facts of the case:

On 28/08/2012, Saadia Rani (20 years old, complainant) was raped off-road while traveling with
Hameed Abbasi. The perpetrators were initially identified as Sajjad Hussain, Sher Baz Khan,
Atif Zareef, and two unknown individuals, later named as Nafees Ahmad and Waqas Hameed.

Sajjad Hussain and Waqas Hameed were proclaimed offenders, while Sher Baz Khan, Atif
Zareef, and Nafees Ahmed faced trial. They were initially sentenced to death under Section
376(2) of the Pakistan Penal Code, 1860, with a compensation order of Rs. 500,000 for Saadia
Rani. Medical tests and the medico-legal report corroborated Saadia Rani's sexual assault. Semen
was found in her vaginal swabs, matching the DNA of Sher Baz Khan (Sheru) and Atif Zareef.
The High Court upheld the conviction but reduced the sentence to life imprisonment and
extended the benefit of Section 382-B, Cr.P.C.

One of the appellants, Nafees Ahmad, was acquitted due to insufficient evidence and a negative
DNA test result. The judgment criticized the unscientific use of the two-finger test (TFT) and
virginity testing in rape cases, advocating for their abandonment in favor of modern forensic
methods.

Objections Raised Before Court:

First Objection: The appellants challenged their conviction and sentence in appeal before the
High Court. The appellants raised objections on the reliability of the complainant, Saadia Rani,
asserting that she had an immoral character or an illicit relationship with Hameed Abbasi, who
was traveling with her.

Second Objection: The appellants questioned the credibility of witness testimonies, particularly
that of Hameed Abbasi, who witnessed the abduction but did not witness the commission of
rape. The appellants argued that the lack of direct evidence of the rape made the case less
credible.

Third Objection: The appellants didnt raise objections related to the use of the two-finger test
(TFT) and virginity testing, but the judgment itself objected to these practices, stating that they
have no scientific basis and should not be used in rape cases. The judgment concluded that the
prosecution had proved its case beyond a reasonable doubt with evidence.
Fourth Objection: Objection was raised in the judgement on the questioning of the victim
regarding her sexual history during cross-examination, and that they were irrelevant and violated
the victim's rights.

Arguments on Objections and Opinions of Court:

Arguments on first Objection: The appellants had raised objections on the reliability of the
complainant, Saadia Rani, asserting that she had an immoral character or an illicit relationship
with Hameed Abbasi, who was traveling with her. The appellants attempted to cast doubt on her
testimony by questioning her character. The Respondents were of the opinion that in order to
throw doubt on the reliability of the complainant, Saadia Rani, the appellants had presented
issues with her character and suggested that she may have had an unlawful connection with
Hameed Abbasi.

Opinion of Court on first objection: The complainant's character and personal ties were
considered irrelevant to the case of crime of rape, by the court, which overruled the appellant's
arguments. The court noted that Saadia Rani, who is an educated woman, had no motivation to
falsely accuse the appellants in a way that would have diminished her honour and dignity and
that her evidence was trustworthy. Even more blatant was the appellants' claim that they saw her
in a lewd act with Hameed Abbasi without providing any proof to back it up.

Opinion of the Court on second objection: The court observed that because rape is frequently
conducted in privacy, it makes it hard to get direct witnesses. It stressed that if the victim's
testimony, given in the context of the whole facts and circumstances of the case, was judged to
be reliable, Saadia Rani's testimony was sufficient for conviction. Her testimony was considered
believable by the court, particularly when it was backed up by medical evidence and DNA test
results.

Opinion of the Court on third objection: The use of TFT and virginity tests in rape cases was
sharply criticised by the court, which emphasised that these procedures are not relevant to
deciding whether rape had happened. It emphasised how detrimental such tests are to the rights
and dignity of rape survivors refering to Article 4 and 14 of the constitution. According to the
court, contemporary forensic science disapproves of these procedures. Modern forensic science
rejects virginity tests as being completely unrelated to sexual assault cases and questions their
accuracy since they lack any basis in science or clinical evidence. The two finger test should not
be used to prove rape-sexual violence, and the size of the vaginal introitus has no influence on a
case of sexual violence, according to modern forensic research. Hymen status is also
unimportant. The medical officer can only comment on whether there is evidence of recent
sexual activity and on any injuries found in or around the private areas. The medical officer's
responsibility extends first to providing the victim with proper medical treatment and comfort,
and secondarily to providing the prosecution with relevant medical evidence.
Opinion of Court on fourth objection: The court held the opinion that whether or not the
victim was sexually active before and after the assault is not relevant, unlawful, or suitable
information to report. The judgement emphasised that such queries should no longer be
admissible as evidence because Article 151(4) was removed by the Criminal Law Amendment
(Offences Relating to Rape) Act, 2016. There is no recognised examination that can demonstrate
a history of vaginal intercourse, and the presence of a hymen is not a reliable indicator of
intercourse. Hymen status is also unimportant since an intact hymen does not rule out sexual
assault, and a torn hymen does not establish that there have been past sexual encounters.
Dragging sexual history of the rape survivor into the case by making observations about her
body including observations like “the vagina admits two fingers easily” or “old ruptured hymen”
is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the
Constitution. The right to dignity under Article 14 of the Constitution is an absolute right that is
not subject to law. As a result, disclosing a rape survivor's sexual history amounts to weakening
her independence, identity, autonomy, and freedom. This reduces her value as a human being
and violates her right to dignity, which is guaranteed by Article 14 of the Constitution. Such
inquiries are prohibited by Article 146 of the QSO if it deems them to be "indecent" or
"scandalous." This stance is codified in Section 12(3) of the Punjab Witness Protection Act,
2018, which requires the court to prohibit questions about the victim's sexual behaviour with the
accused or anybody else on previous occasions.

Analysis:

The judgment of this case shows the comprehensive and coherent nature of the complainant's
testimony, devoid of any significant inconsistencies. It has also mentioned her educational
background and social status which serves to show her lack of motive for making false
allegations against the appellants in this crime. Any attempts to throw dirt on her character or
allege an improper relationship with Hameed Abbasi were refuted. Hameed Abbasi (PW-2), the
complainant's travel companion, provided testimony that corroborated her claim of being
forcibly taken by the appellants. Although he did not directly witness the actual assault, the court
acknowledged the challenge in obtaining direct witnesses/evidence in cases where such crimes
typically occur in private settings. The court found that the prosecution had proven its case
against Sher Baz Khan alias Sheru and Atif Zareef beyond a reasonable doubt. Their convictions
and sentences were upheld.
The complainant had been sexually assaulted, according to medical evidence the court evaluated,
including a medico-legal report. Strong validation was given to this scientific evidence where
semen was found in the complainant's vaginal swabs according to the Chemical Examiner's
report, and a DNA test identified DNA on the complainant's body that matched that of one of the
appellants, Sher Baz Khan.
The case of Nafees Ahmad stood apart from that of the other appellants. The complainant had
not previously nominated him, and the court expressed misgivings about his
participation—especially in light of the results of a negative DNA test. Nafees Ahmad was
declared innocent and discharged.

The use of the "two-finger test" or "virginity test" to gauge the accuracy of the rape survivor is
one of the major points raised in the judgement. Medical professionals and forensic scientists in
the modern day have long criticised this practise. The judgement rightly notes the lack of
scientific validity of such tests and recommends against using them to judge a survivor's
credibility or consent. The court's recognition of an urgent need of discontinuing these obsolete
approaches is appreciated.
The court's emphasis on treating rape victims with respect and dignity is appropriate. It
emphasises the point that the victim's sexual background or character shouldn't be utilised to call
into question her reliability. The court correctly notes that rather than concentrating on the
victim's prior sexual encounters, the focus should be on assessing whether the accused
committed rape. This is an important step towards preventing needless victimisation and
humiliation of rape survivors in court. The ruling emphasises how crucial it is to protect people's
constitutional rights, especially the right to dignity. It rightly states that no action should be
performed against a person's body or reputation unless it is permitted by law. This reinforces the
core idea that everyone ought to be treated with respect and decency by the law.
Eight years after the alleged occurrence, the judgement appropriately draws attention to the fact
that two of the defendants in this case are still at large. This calls into question the effectiveness
and efficiency of the criminal justice system in catching perpetrators and bringing them to
justice. An encouraging step towards ensuring that justice is done is the court's order to the
Inspector General of Police to take the required steps in this respect.

Conclusion: The ruling in this case shows a favourable change in favour of a more modern and
victim-centered strategy in situations of sexual assault. It criticises the use of outdated forensic
methods and highlights the requirement to safeguard the rights and dignity of rape victims. The
case, however, also shows the necessity of ongoing initiatives to enhance the criminal justice
system's efficiency in catching and punishing perpetrators. Overall, this decision establishes a
precedent for the judicial system to treat victims of sexual assault more fairly. The fact that the
perpetrator is still at large is a danger to the women of this nation as this instills a fear of being
abused and feeling unsafe the moment they step out of their homes. This judgement is a rich
source of knowledge for law students, academics, arbitrators, and law practitioners. The
substance of the judgement is excellent; however, its execution seems a bit flimsy at the point of
apprehending the criminal. The court must take steps to apprehend criminals especially those
who commit crimes that pose a threat to the human dignity.