PLJ 2022 Cr.C. 737
[Lahore High Court
Lahore]
Present: Tariq Saleem Sheikh, J.
MUHAMMAD SAJID alias SAJO--Petitioner
versus
STATE and others--Respondents
Crl. Misc. No. 59005-B of 2021, decided on 9.11.2021.
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 498--Pre-arrest bail--Dismissal of--Complainant’s six-years-old
son Yasir was playing in street near his house when Petitioner deceitfully took
him into fields, removed his clothes and began to fondle him--Child sexual
abuse has both short and long-term effects on victim which include depression,
anxiety, post-traumatic stress disorder and psychological trauma--Petitioner is
nominated in FIR with specific allegations--Complainant approached police seven
days after happening but an adverse inference cannot be drawn against her on
that score at bail stage because in our society people generally do not report
such incidents immediately--This petition is accordingly dismissed. [Pp. 738, 739, 742 & 743] A, B, C
Mr. Nasir Mehmood, Advocate with Petitioner.
Mr. Muhammad Mustafa Chaudhry, Deputy Prosecutor
General, for State.
Mr. Naveed Khalid, Advocate for Complainant.
Date of hearing: 9.11.2021.
Order
[There] is a mass of human rights law,
both treaty and 'soft law', both general and child-specific, which recognizes
the distinct status and particular requirements of children … [Children] owing
to their particular vulnerability and their significance as the future
generation, are entitled to special treatment generally, and, in situations of
danger, to priority in the receipt of assistance and protection.
Jenny
Kuper[1]
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 malafides 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, PPCare, 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