' The appellant has been convicted under section 377, P.P.C. By Mr. Abdur Rehman Khan, Additional Sessions Judge, Multan. He has been sentenced to five years' rigorous imprisonment with a fine of Rs,10,000. The case was initiated on the F.I.R. Lodged by alleged victim Irfan Shahzad Butt at Haramgate Police Station Multan, on 23-8-1996, reporting that he was abducted on 16-8-1996 by the present appellant and another unknown person and they took him to the house of one Mst.
Firdous Begum where he was kept till 19-8-1996, during which period, the appellant committed sodomy with him. He reported that, on 19-8-1996, his uncle P.W. Muhammad Saleem Butt brought him from that house and he lodged this report after four days, on 23-8-1996.
2. Mst. Firdous Begum and her sons Pappu, Gogi and Bobi were tried earlier on this charge, when the present appellant was declared absconder. After the appellant was presented before the trial Court, he was charged for offences under section 365 read with section 34, P.P.C. Section 377, P.P.C.
Section 368 read with section 34, P.P.C. And section 12, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
3. To prove the charges against the appellant, the trial Court examined the alleged victim Irfan Shahzad, his uncle Muhammad Saleem Butt, Dr. Shahid Hussain Magsi, another Dr. Zafar Ali and the police officials connected with the investigation.
4. Mr. M. Yousaf Zia, learned counsel representing the appellant, points out that the co-accused persons, tried earlier, were acquitted because the alleged victim Irfan Shahzad refused to identify them before the trial Court as the persons who were involved in this offence. He submits that, before the trial Court in the case against co-accused persons, the alleged victim admitted that he got recorded the name of those accused persons on the direction of his father. The learned counsel submits that it was a false case prepared against the present appellant due to the reason that the father of- the alleged victim had borrowed money and other articles from the appellant and there was a dispute between them about re-payment of the money and cost of those articles.
He submits that to avoid an answer to this allegation, the father of the alleged victim has neither been made a witness for the prosecution in this case, nor was he ever involved in the investigation.
Learned counsel submits that the same evidence has not been believed by the trial Court to punish 'the co-accused persons, so, logically, the present appellant cannot be convicted on the basis of the same evidence. He points out that admittedly the alleged victim was examined medically after four days from his. Return, but even then the Chemical Examiner found semen stains on the swabs referred to him for examination. He cited the case of Imtiaz Ahmad and others v. The State reported at 1996 M LD 457; Muhammad Akram and others v. The State reported at 1995 M LD 950 and Muhammad Anwar v. The State reported at 1996 PCr.LJ 1195-Lahore, to show that it was not possible to find semen stains on the swa bs after four days of the alleged occurrence. Learned counsel further submits that P.W. Muhammad Saleem Butt, uncle of the alleged victim, stated before the Court that he had seen the appellant and another person taking away the alleged victim with them on a motorcycle and he also chased them, but he neither attempted to find out the alleged victim nor reported the matter to the police.
5. Mr. Fazal-ur-Rehman Rana, learned State Counsel, frankly concedes that he is not in a position to support the impugned verdict on the basis of highly flawed evidence placed on record by the prosecution.
6. Other charges, than the one about sodomy, were found not proved by the trial Court and the co- accused persons were acquitted. In the case of present appellant also, the trial Court observed that the prosecution case is that Han Shahzad was forcibly abducted by the accused who confined him in the house of Mst. Firdous Begum. Mr. Yousaf Zia submits that nothing has been brought on record to establish any connection between the present appellant and Mst. Firdous Begum, in whose house he allegedly kept the victim for the offence.
7. The trial Court convicted the present appellant under section 377, P.P.C. On the basis of statement of the alleged victim coupled with the medical evidence. The alleged victim is not truthful witness as he, himself, has admitted that he falsely involved the co-accused persons on the direction of his father. The other witness Muhammad Saleem Butt is also not reliable because he has given specific date when the alleged victim was abducted and that is different from the one given by the victim himself. According to this witness, the alleged victim was abducted on 14-8- 1996, whereas according to F.I.R. It was on 16-8-1996 when he was allegedly abducted.
8. The medical evidence, also, does not connect the present appellant with the commission of the offence of sodomy. The Medicall Officer Dr. Shahid Hussain Magsi said that he examined the alleged victim at 1-00 a.m. On 23-8-1996 whereas the F.I.R. Was lodged on the same day at 4-00 p.m. The Medical Officer does not unequivocally say that sodomy was committed with the alleged victim. He gave the opinion! That somethihg had been introduced into the anus of the alleged victim.
' He found abrasions on the elbows and knees, but he said that this injury could be caused in a manner otherwise than sodomy. The Chemical Examiner's; report is also not believable and the trial Court did not summon the Chemical Examiner to explain as to how he found semen on the swabs after four days of the alleged incident. Under section 510, Cr.P.C. a Chemical Examiner's report has been made admissible without calling the author of the report as a witness, but it does not mean that such a report is to be believed as correct in every case, just due to its legal production in the evidence. The law cited by Mr. Yousaf Zia, mentioned above, is clear on the point that it is impossible to find semen stains on the swabs after four days of commission of sodomy. It is not possible because for four days one cannot retain the semen after passing stool and washing the body.
9. The motive for false implication put forward by the appellant, as accused before the trial Court, has not been rebutted by the person concerned viz. Father of the alleged victim. He was not cited as a witness for the prosecution, nor was he examined by the trial Court.
10. Thus, there is no credible evidence on record to connect the present appellant with the commission of the offence. The appellant was entitled to acquittal on the basis of evidence placed on record. The conviction and sentence is liable to be set aside. The appeal is accordingly allowed and the conviction and sentence awarded to the present appellant in this case is set aside. The appellant shall be released forthwith in this case.