' RAJA FAYYAZ AHMED (MEMBER).--- This criminal appeal has been directed against the judgment, dated 27-5-2004 passed by the learned Federal Shariat Court, at Lahore, whereby the appeal preferred by the appellants against their conviction under section 377, P.P.C. Recorded by the learned Additional Sessions Judge, Burewala vide judgment, dated 18-6-2003, has been maintained, however, sentence of 10 years' R.I. Awarded to each of the appellants has been reduced to 7 years' R.I. And the sentence of fine imposed by the learned trial Court was maintained with the further order that the amount of fine, if recovered shall be paid to the victim, as compensation.
2. The precise facts of the case are that case Crime No,167 of 1998 was registered with Police Station Gaggo, District Vehari on the written complaint of Muhammad Anwar (P.W.1) under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under sections 377/337- F(i)/34, P.P.C. On 25-4-1998 at 9-30 p.m. With reference to Rozenamcha Report No,3 dated 23-4- 1998 at about 2-30 p.m. Wherein it was stated that he (P.W. Muhammad Anwar) left to fetch is grandson namely Khadim Hussain aged about 10 years student of second class, Government Boys Primary School, Chak No,371/EB and when he reached to the Pakka Raqba of Mir Zaman Islamabadi Square No,34 Acre No,3 covered by wheat crop he heard cries of his grandson Khadim Hussain, as well as; heard by his son Manzoor Hussain and Dil Muhammad passing nearby were attracted to the spot and found accused Fayyaz equipped with a pistol committing sodomy with his grandson Khadim Hussain, whereas accused Abbas was holding arms of the victim and afterwards the act of sodomy was committed by accused Abbas with the support of accused Fayyaz and no sooner they saw the complainant, Manzoor Hussain and Dil Muhammad P. Ws. Having come near to them were warned to be killed and thereupon; both the accused persons fled away from the scene of occurrence. After that with their help the victim was brought to his house who had betome unconscious on account of sodomy committed upon him to whom routine medical aid was provided by the complainant and victim was brought to Gaggo Hospital and after obtaining M.L.R.
Report was lodged and medical examination report was submitted to the Police Officer.
3. From the perusal of the judgment and the documents it transpires that criminal case registered with the police station was cancelled and complainant being dissatisfied with the fate and progress of the investigation filed a private complaint in respect of alleged incident in the Court of learned Illaqa Magistrate Burewala which eventually was sent to the Court of the learned Additional Sessions Judge, Burewala. After recording preliminary evidence produced by the complainant, in the light of incriminating material, cognizance of the offence was taken by the learned Additional Sessions Judge, Burewala. Accordingly, process was issued for the nominated accused persons to face trial of the offence.
' Both the accused persons were indicted in view of the incriminating material and the accusation under sections 377/337-F(i)/34, P.P.C. To which they did not plead guilty. The prosecution in order to substantiate the accusation produced three witnesses namely; Manzoor Hussain, Khadim Hussain (victim) and Dr. Atta Muhammad Zafar, Medical Officer, besides the statement of the complainant who appeared as P.W.1. After conclusion of the evidence of the complainant, both the accused persons were examined by the learned Additional Sessions Judge, Burewala hereinafter referred to as the 'learned trial Court' under section 342, Cr.P.C. In the light of the incriminating pieces of evidence which they each denied and disputed. Accused Fayyaz in answer to questions Nos.3 and 5 in his examination under section 342, Cr.P.C. Stated that the Chemical Examiner's report has not been produced as the trial by the prosecution which in fact was fake and fabricated document and the case registered against, them under F.I.R. No,167 of 1998 was dismissed by Illaqa Magistrate, Burewala. He and co-accused Abbas are inter se brothers-in-law whereas; in answer to question No,4, he stated that one Kalli nephew of the complainant was murdered and P.W.
Muhammad Aslam cited in the case as an ocular witness (his cousin) refused to support the case of the prosecution as an ocular witness, therefore, he and the co-accused have been falsely, involved in the instant case. Similar, stand was taken by co-accused Abbas in his statement under section 342, Cr.P.C. None of the accused persons opted to record his statement on oath in disproof of the charge within the meaning of section 340(2), Cr.P.C. They however; produced two witnesses in defence namely; Dil Muhammad (D.W.1) and Mubarak Ali (D.W.2). After conclusion of the trial and hearing both the parties, the learned trial Court on 18-6-2003 convicted both the accused persons under section 377, P.P.C. And sentenced them 10 years' R.I. With a fine of Rs,10,000 or in default of fine each to further suffer R.I. For one month.
4. Mr. A.G. Tariq, the learned Advocate Supreme Court for the appellants and Mr. Muhammad Zaman Bhatti, the learned Advocate Supreme Court for the State 'have been heard at length. It has been strenuously contended by the learned counsel for the appellants that the MLR of the victim statedly based on medical examination of the victim conducted after a lapse of considerable time period from the date of commission of the alleged offence is a fake medical report subsequently procured by the complainant, consequently the same cannot be relied upon for the reason that no sign or any symptom of penetration after lapse of considerable time could have been found on the person of the victim by Dr. Atta Muhammad, on examination nor the anal swabs obtained after such delay could be found stained with semen by an expert hence; no credence can be attached to such expert report nor could it furnish any corroboration to the ocular testimony of the victim, even suffering from material contradictions. According to the learned Advocate Supreme Court for the appellants, the evidence produced by the complainant has been misread and not appraised in its true perspective by the learned Federal Shariat Court and the trial Court nor could it warrant into conviction of the appellants, whereas; the defence evidence being convincing, reasonable and more probable in view of the settled principles of criminal administration of justice has been misread. As regards positive report of the Chemical Examiner, the learned counsel has placed reliance on the judgments reported in the cases of Naseer Ahmad alias Nasro v. State 2004 PCr.LJ 1769 and Muhammad Akram and another v. The State 1995 M LD 950.
5. Controverting the arguments put forth on behalf of the appellants, the learned Advocate Supreme Court for the State contended that the charge against the accused persons has been established beyond shadow of any reasonable doubt. The learned trial Court, as well as; the learned Federal Shariat Court respectively appraised the evidence in its true and correct perspective which is not open to any interference as no part of the evidence has been misconstrued, misread or omitted from consideration and; the findings of guilt based on evidence are supported with reasons. He further submitted that since no effective investigation into the reported crime was conducted by the Investigating Officer who under the influence of the accused party successfully managed to cancel the case, therefore, under compelling circumstances, a private complaint was filed by the complainant and eventually, the learned Additional Sessions Judge, Burewala in view of the incriminating evidence produced during the course of inquiry took cognizance of the offence, therefore, the circumstances which led to the filing of private complaint and delay caused in production of MLR of the victim to the Investigating Officer was taken due notice of by the learned Federal Shariat, Court including the defence plea. According to the learned Advocate Supreme Court for the State the defence evidence and plea have rightly been discarded for valid reasons borne on record.
6. The contentions it forth on behalf of the parties have been considered in the light of the evidence adduced at the trial by the parties and the impugned judgment passed by the learned Federal Shariat Court gone through carefully including the judgment passed by the learned trial Court.
' Manzoor Hussain, P.W.2 deposed that about two years back he was on his way to harvest wheat crop, saw Khadim Hussain coming back from school and when he reached to the spot accused persons pointed their fire-arms towards him and after committing sodomy upon Khadim Hussain ran away. According to the witness he shifted Khadim Hussain to Hospital and was admitted. He stated to have obtained MLR and thereafter the case was registered against the accused persons but was cancelled. He admitted in his cross-examination that accused Abbas is a married person and he was on his way for harvesting the crop when the occurrence took place. Further, the witness in the cross-examination stated that he and Dil Muhammad P.W. Were cutting wheat crop and they were attracted to the spot on alarm and had also noticed that crop at the spot was damaged and; the clothes of the victim were stained with blood and also there was blood on the ground. He denied that Panchayat was held in Mosque and they took oath from the accused persons about their innocence. On further questions by the defence, the witness stated that after occurrence the accused persons ran away towards their houses and explained that they were cutting the wheat crop in Acre No,13, Square No,34.
' Complainant Muhammad Anwar, grandfather of the victim stated that he was on his way to school to fetch his grandson Khadim Hussain, back to home after attending his school when he heard alarm coming from Acre No,13 Square No,34 on which wheat crop was present and he saw accused Fayyaz armed with pistol, while Abbas was holding the legs of Khadim Hussain when he was at a distance of 2 Kanals; after that; Abbas committed sodomy upon Khadim Hussain whereafter; the accused persons fled away from the spot. According to the complainant, Manzoor Hussain and Dil Muhammad came to the spot after five minutes whereafter; the accused persons fled away. They removed Khadim Hussain to Hospital Gaggo, obtained MLR and lodged report with police station but subsequently, the case was cancelled, therefore, he filed private complaint. In cross-examination the complainant stated that he through the pavement reached to the place of the occurrence which also leads to the house of both the accused persons. He further stated that at Acre No,13 Square No,34 when he noticed about the incident, accused Fayyaz armed with pistol threatened him not to come near to them and that the incident lasted for over twenty minutes. The accused persons did not leave the victim even on his having raised alarm. He explained that MLR of the victim was received by him after four hours and case was registered against accused persons on the same day but was cancelled by the police and after two months he.Came to know that S.P.
Burewala, declared the accused persons as innocent whereafter; he moved an application to the D.I.-G. But with no result, therefore, he filed a private complaint in the Court. He denied that accused Fayyaz took oath about his innocence.
' Victim Khadim Hussain deposed that he was back on his way to home after attending the class through pavement where wheat crop was standing, was ambushed by accused persons out of whom accused Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him and thereafter, accused Fayyaz caught hold of him and sodomy was committed by accused Abbas, out of whom Fayyaz was armed with a pistol, who threatened him of serious consequences.
He further stated that his grandfather. Muhammad Anwar, Manzoor Hussain and Dil Muhammad came to the spot when accused Abbas was committing sodomy and he was removed to the hospital. The victim in cross-examination further stated that his grandfather used to take and bring him back from school and on the fateful date he waited for his grandfather but since he did not reach to school. So, he left for his home all alone. The victim in cross-examination further explained that the accused ambushed him in wheat crop and was taken at a distance of 2-1/2 acres and was subjected to unnatural lust one after the other, though he raised alarm throughout. He further stated that on account of the acts committed by the accused person he received injuries on his person and also his clothes were stained with blood. He further stated that his grandfather came to the spot while the accused persons were subjecting him to sexual assault and regained senses after an hour in the hospital and had not seen Manzoor Hussain and his grandfather as he had become unconscious but prior to it he had noticed their presence. He explained that he had seen them when he was lying on the ground. He further deposed that Dera of accused Fayyaz is at a distance of 3-4 acres from their Dera.
' Dr. Atta Muhammad Zafar, Medical Officer appeared as P.W.4. According to him on 24-4-1998 he medically examined Khadim Hussain aged about 10 years brought to him by Munir Ahmed, Constable of Police Station Gaggo as a case of sexual assault. He noted the following findings incorporated in the M.L.R.
(1) Redness and swelling on perianal region.
(2) Tear at the anal margin was present measuring 0.5 c.m. x 03 c.m. Skin deep.
(3) Swelling with redness of margin around was present.
(4) A large tear measuring 1.5 c.m. x 1 c.m. Of anal mucosa at 3'O clock position was seen. Small tears at 12'O clock and 6'O clock were also present. He deposed as under:-- "Internal and anal swa bs in small vial and one external swab in large size vial were taken, sealed, stamped and signed by me to send these to the Chemical Examiner, Multan Division Multan for detection of semen if any and handed over to Munir Ahmed 536/C Police Station Gaggo District Vehari. Final opinion about sodomy was reserved till the receipt of Chemical Examiner report. All these injuries were Jurh Ghair Jaifa Damiha and these were caused by blunt object and their duration was within 20 to 40 hours approximately. Exh.P.A. Attested copy of the medical examination report bears my signature and signed by me."
' He admitted in the cross-examination that no marks of violence were present on the body of the victim and the possibility is not ruled out that the injuries on anal and perianal region were caused by any foreign body. He denied that false medical report was issued to complainant party, and the original record was misplaced but at the time he was not incharge of the record.
7. Dil Muhammad (D.W.1) stated that the accused persons are innocent and they did not commit sodomy upon any person. According to him, he was cited witness in the case registered with police station and on the next following day the complainant informed him about the same but he refused to become witness as he had not seen the alleged incident and such fact was also disclosed to the police. He further stated that both the accused persons are inter se brothers-in- law. He explained that one Abdul Qayyum, was murdered by one Kalli and the complainant party asked Aslam, a cousin of accused Abbas not to appear as a witness in the murder case but he refused to do so, due to which a fabricated case in respect of the alleged incident was reported.
The witness in cross-examination admitted that at the time of alleged incident he was present in Chak No,225/EB situated at a distance of 9/10 miles from the place of occurrence and he did not know as to what had happened at the place of incident on 23-4-1998 at 2-30 p.m. Mubark Ali (D.W.2) stated that a false complaint has been filed. The police case in respect of the incident was cancelled and he had appeared before police. He admitted in cross-examination that he was in his village at a distance of 1-1/2/2 miles from the place of incident. He also admitted that police case was cancelled on taking to oath about the innocence of the accused persons.
8. The contentions noted above put forth on behalf of the parties have been considered in the light of the evidence available on record including the impugned judgment gone through minutely. The evidence of the ocular witnesses of the alleged occurrence namely Muhammad Anwar (P.W.1) and Manzoor Hussain (P.W.2) having witnessed the occurrence was disbelieved by the learned trial Court and their version to have attracted to the spot after the occurrence was also not believed by the learned trial Court which found the appellants as guilty of the charge on the testimony of the victim and the medical evidence. It has also been rightly observed by the learned Federal Shariat Court that conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so available in the case. Undisputedly victim of the offence namely Khadim Hussain at the time of commission of offence was aged about 10 years and a school going boy, who did not carry any grudge or malice against the appellants to falsely implicate them in the case. It has also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated that after attending the class he was on his way for the home through pavement where wheat crop was standing. He was ambushed by accused persons out of whom accused Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him and thereafter accused Fayyaz caught hold of him and sodomy was committed upon him by accused Abbas. He also stated that accused was armed with a pistol who threatened him of serious consequences.
The testimony of the victim could not be impeached or discredited though subjected to test of cross-examination by the learned defence counsel. Dr. Atta Muhammad Zafar, the Medical Officer appeared as P.W.4 who stated that on 24-4-1998 he medically examined Khadim Hussain aged about 10 years was brought to him by Constable Munir Ahmed as a case of sexual assault. The victim was allegedly subjected to unnatural lust on 23-4-1998 and the matter was promptly reported to the police, which was entered as Roznamcha Rappet No,3 on 23-4-1998 at about 2-30 p.m. And subsequently on 25-4-1998 at 9-30 p.m. F.I.R. Was registered against the nominated accused persons most probably in view of the MLR of the victim produced by the complainant. The findings noted in the MLR after the examination by the Medical Officer mentioned above clearly indicate that the injuries were caused by insertion of some blunt object within a duration of 20 to 40 hours. The Medical Officer was subjected to cross-examination by the learned defence counsel and it was not even suggested to him that the noted injuries could be result of any insensate object, therefore, in absence of any other indication or material available on record it could not be said that the same were not caused by penetration in respect whereof the victim expressly stated that he was subjected to sexual intercourse one after the other by the accused persons. Also, no suggestion was given to the Medical Officer in cross-examination that no injury of the like nature as noted in the MLR could be noticed on examination if conducted after 20 to 40 hours approximately on the person of the victim if so caused or inflicted. Hence, it could not be said that any symptom or injury on the person of a victim of unnatural offence could not have been noticed during the medical examination after 20 hours subsequent to the commission of the act. The Medical Officer admittedly was an independent person having no reason to issue a false certificate favoring the victim, therefore, this piece of evidence in view of the contentions raised on behalf of the appellants could not have been discarded and rightly so believed by the learned Federal Shariat Court. The learned Federal Shariat Court on perusal of the challan file of the case has noted in the impugned order that after the conclusion of preliminary evidence in the complainant case, complainant Muhammad Anwar filed an application in the trial Court pointing out that original report of the Chemical Examiner was in the possession of police, accordingly request was made for summoning the same through the incharge of police station concerned but no order on this application was passed by the learned trial Court and subsequently after a lapse of considerable period show- cause notice was issued to the S.H.O. On 14-11-2001 for submitting the report of Chemical Examiner on 3-12-2001 but thereafter compliance of the order was not enforced. Further, the learned Federal Shariat Court noticed that the photocopy of the Chemical Examiner dated 9-5-1998 was available at page No,197 of the challan file, accordingly the same was ordered to be made part of the appeal as Exh.C.1 to which no reservation was expressed by the appellants' learned counsel, who was further asked as to whether the appellants wanted to lead any defence evidence in rebuttal to Exh.P.C./1 but he replied in negative. This document showed that the swabs were stained with semen which further lends support to the prosecution case that the victim was subjected to sexual intercourse. The defence witnesses namely Dil Murad and Mubarak Ali simply stated that the appellants were innocent and had been falsely implicated in the case. Both the D.Ws . Resided at a considerable long distance from the place of occurrence out of whom Mubarak Ali D.W. Admitted that at the time of alleged occurrence he was in village of Chak No,365/EB (the place of occurrence was Chak No,371/EB), whereas; according to D.W. Dil Murad he did not know as to what had happened on the place of occurrence on 23-4-1998 at 2-30 p.m., therefore, their evidence has rightly been discarded for being not worth of any credence by the learned Federal Shariat Court.
None of the accused person opted to record his statement on oath in disproof of the charge. The facts of the case in both the cited reported judgments are quite distinguishable and have no relevance to the case in hand in view of the glaring distinguishable aspects not involved in the present case. Hence, these render no help in improving the case of the appellants. The entire evidence has been scrutinized and appraised by the learned Federal Shariat Court in its true perspective in view of the well-settled principles of criminal administration of justice to which no exception could be taken. Consequently, this appeal is dismissed.