' Additional Sessions Judge Kharian, District Gujrat, has convicted the present appellant under section 377, P.P.C. And sentenced him to ten years rigorous imprisonment with a fine of Rs,20,000.
2. The case was initiated through the F.I.R. Lodged by one Muhammad Saleem at Sadar Kharian Police Station, on 1-8-1999, wherein he reported that on his return on the last night to his house, on 31-7-1999, he was informed by his seven years old son Kamran Nadeem that, at about 5-00 p.m., he was going to a shop when one Saeen son of Allah Ditta Kashmiri asked him to accompany him on the pretext that he would give him mango plants. The complainant was also informed by his son that another child Usman son of Muhammad Akram was also with him. He was further informed by the child that on the way Ishfaq son of Ghulam Haider also met them; Usman escaped and both these persons committed sodomy upon Kamran Nadeem in the fields of one Iftikhar Ahmad. The complainant further reported that P. Ws. Muhammad Siddique and Javed Iqbal had seen Saeen and Ishfaq going towards the fields with Kamran Nadeem.
3. Later a supplementary statement was produced before the police by the complainant wherein he stated that since the child was disturbed he could not give correct name of the accused and the complainant had come to know that they were Zahid alias Saeen son of Allah Rakha Kashmiri and Sarwar son of Muhammad Akram who committed this offence. The police, after investigation, submitted a challan before the trial Court against Muhammad Zahid alias Saeen son of Allah Ditta and Muhammad Sarwar alias Sara son of Muhammad Akram. The trial Court framed a charge against these two accused persons for commission of offences punishable under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C.
4. To prove the charge, the trial Court recorded evidence of prosecution witnesses including complainant Muhammad Saleem, P.W. Muhammad Siddique, Dr. Farooq Ahmad Bangash, the alleged victim Kamran Nadeem, Investigation Officer, S.-I. Muhammad Fazal and two other police officials.
5. After recording this evidence the trial Court acquitted the accused Zahid alias Saeen under section 265-K, Cr.P.C. On an application moved on his behalf.
6. Statement of present appellant under section 342, Cr.P.C. Was recorded wherein he denied the allegations against him and stated that he has been falsely involved due to enmity for the reason that an F.I.R. Was earlier lodged by his brother against the present complainant.
7. On the basis of the evidence placed on record, the trial Court found that charge under section 12 of the Ordinance was not proved. The Court, however, found that the charge under section 377, P.P.C. Against the present appellant was proved and, accordingly, he was convicted.
8. Mr. Muhammad Saleheen Mughal, learned counsel for the appellant submits that the ages of the accused persons tried in this case were less than 18 years at the time of the said offence and, therefore, the case should have been tried by the Juvenile Court under the Juvenile Justice System Ordinance, 2000, because it provided that the cases pending at the time of promulgation of the Ordinance would be tried under that law. He, however, does not press this plea in view of the fact that the trial took five years to complete and if the case is remanded, the parties would have to undergo another ordeal of the retrial. In view of the medical evidence, the learned counsel submits that he would not say that the offence has not been committed but, he contends that the evidence on record is not reliable and adequate to connect the accused/appellant with the commission of the offence. He further contends that in case it is found that the case is proved against the appellant, he is entitled to a reduction in the sentence in view of his age.
9. Mr. Aftab Ahmad Khan, learned State Counsel, submits that the record does not show that a proper objection was taken at the trial stage for trial of the accused under Juvenile Justice System Ordinance. He submits that the evidence of the alleged victim, corroborated by the medical evidence, is sufficient to prove the charge against the appellant. Mr. Aftab Ahmad Khan points out that there was another case of sodomy registered against the appellant, which is indicated by another F.I.R. Placed on record.
10. In view of these facts of the case, the main point for consideration is whether the evidence placed on record is confidence inspiring and sufficient to connect the present appellant with the commission of this offence.
11. The conduct of complainant in making allegations about the commission of this offence renders the case highly doubtful, because, in the first F.I.R., he nominated two persons with details of their parentage, caste and address. Although the F.I.R. Was lodged on the next day and there was sufficient time available to him to inquire from his child about the person who committed this offence he made a supplementary statement, after some time, in which he substituted both the accused persons by another two persons and, at the evidence stage, he exonerated even one of them, leaving the present appellant alone. About his reason for correction of the names, he could have been relied in case, at the first instance in the F.I.R., he would not have mentioned specific names and details of the offenders, and had given the name afterwards in the supplementary statement.
12. In the evidence before the Court, the complainant stated that Sarwar alias Sara along with one unknown person took his son with them. He totally exonerated the accused Zahid alias Saeen and denied that he has mentioned his name in his supplementary statement.
14. Another prosecution witness examined, Muhammad Siddique is brother of the complainant and his evidence is also not reliable because of his changing versions and contradictions with the evidence of the alleged victim. He said that he saw Sarwar along with Kamran Nadeem and a child Usman going towards fields whereas the alleged victim Kamran Nadeem stated that appellant Sarwar and one unknown person took him with them and nobody else was with them. Thus, he denied presence of the other child Usman on that occasion. This witness claims that at 5-00 p.m.
He saw Kamran Nadeem going with the appellant and again at 5-30 p.m. The child met him and informed him about the commission of sodomy by the appellant, whereas the child himself does not corroborate this version.
15. The statement of the alleged victim Kamran Nadeem is also not beyond doubt and it appears that he was carefully tutored by the Complainant and he gave evidence accordingly.
16. This was the evidence brought to connect the appellant with the commission of offence, but it is not confidence inspiring and the witnesses are not reliable. The prosecution case against the appellant was highly doubtful and he was entitled to the benefit of doubt. The trial Court repeated the evidence in the judgment but did not carefully appreciate it. The appellant is given benefit of doubt and the appeal is allowed. Conviction and sentence is set aside and he is acquitted of the charge. The appellant shall be released in this case forthwith.