Barrister sohaib & Co.

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Legally.pk on LinkedIn: #legally #legallypk #laywers #advocates #barristers #legalplatform… Legally makes sure your disputes are taken care of by the best legal experts. Meet Barrister Sohaib Arshad a practicing lawyer in Islamabad. He worked in the…

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The Senate Standing Committee unanimously approved the Islamabad Capital Territory Domestic Workers Bill, 2021 with substantive amendments on Tuesday.

Tery Shehar ke har koochay main Lahu ke daagh hain
Ae kashmir ham Tujhe azad daikhne ke liye betaab hain

2016 PCrLJ 1888 KARACHI-HIGH-COURT-SINDH
IMRAN VS State
Criminal Procedure Code (Cr.P.C) 1898--497 , Meaning--Term , Pakistan Penal Code 1860--337-A , Pakistan Penal Code 1860--34 , Pakistan Penal Code 1860--375 , Pakistan Penal Code 1860--376 , Pakistan Penal Code 1860--506 , Pakistan Penal Code 1860--90 ,
S. 497---Penal Code (XLV of 1860), Ss. 376, 375, 337-A(i), 506, 34 & 90---r**e; Shajjah-i-khafifah; criminal intimidation; common intention---Bail, refusal of---'Will' and 'consent'---Meaning---'Against her will'/'without her consent'---Interpretation---'Consent' known to be given under fear of misconception---Effect---'Consent' obtained through fraud or deception---Effect---positive DNA report based on two months old vaginal swab samples---Probative force---'Sexual in*******se'---Meaning---Injury to ge****ls and semen stains not necessary/mere pe*******on was sufficient to constitute offence of r**e---Sole testimony of victim of r**e, evidentiary value of---Under special provisions of S. 376, P.P.C., 'will' and 'consent' had been differentiated, which meant that even if there was 'will' but no 'consent' or vice versa, offence of r**e would be actualized---Word 'will' implied the faculty of reasoning power of the mind that determined whether or not to do an act---First ingredient 'against her will' was related to the psychological state of the victim (as compared to 'without her consent', which referred to actions and performative (enacted as said/commanded))---Fine distinction existed between an act done 'against her will' and an act done without consent ('without her consent')---Every act done 'against her will' was 'without the consent', but every act 'without her consent' was not 'against her will'---Section 376(i), P.P.C. applied where the woman was both in her senses and capable of consenting---Expression 'against her will' ordinarily meant that the in*******se was done by a man with a woman despite her resistance and opposition---Evidence available on the record showed that the victim was not a consenting party, and the r**e had been committed 'against her will'---Term 'consent' as used in S. 376(ii), P.P.C. meant 'an act of reason, accompanied with deliberation, the mind weighing in a balance, the good and evil on each side'---'Act done with consent' always meant that the act was done with free will or voluntarily---In the present case, the victim's consent for taking her out of her house had been obtained on the basis of some past friendship or allurement with the hidden intent; therefore, victim's consent was either tainted or based on deception and fraud---Had the victim known that she would be r**ed, she would not have left her house with the accused---Victim had left her house with the accused due to the fraud and deception practised on her; therefore, her consent could be held to be the consent 'without her consent'---Consent obtained by deceitful means was no consent in terms of S. 376, P.P.C., and the same not only came within the ambit of the ingredients of the definition of r**e but qualified the exception provided for under S. 90, P.P.C. being a 'vitiated consent' given under a 'misconception of fact'---DNA Laboratory Report although provided that 'no human male DNA profile was identified in the vaginal swab', but said Report showed that vaginal swab samples presented to the Laboratory were more than two months old, and that was not sure as to how those samples had been preserved during such a long period of time, since the external factors (such as temperature and humidity), and internal factors (other bodily fluids) had affected the validity of the samples---Earlier the sample had been collected and tested, the higher would have been the chances of yielding solid results---DNA testing from vaginal swabs could reliably lead to an offender only if the sample was tested within the first 7 days of the r**e---Foul play was also evident from the fact that the DNA Report suggested that the swab samples had been consumed, leaving no opportunity to challenge the results shown in the Report---Penetration was sufficient to constitute the 'sexual in*******se' necessary to constitute the offence of r**e without producing any injury to the ge****ls or leaving any seminal stains---Testimony of the victim in r**e cases was of vital significance, and unless compelling reasons existed which necessitated looking for corroboration of her statement, the Court ought not to find any difficulty in convicting the accused on victim's testimony alone---Victim was neither willing nor had she consented for the sexual act, which had been forced upon her by the accused; therefore, necessary ingredients of S. 376, P.P.C. had been satisfied---Accused belonged to a relatively influential class, and if he was released on bail at present stage, he was likely to intimidate or influence the victim and/or the witnesses---Bail application was dismissed accordingly.