' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).--- This appeal by leave is directed against the judgment, dated 10-4-2002 passed by learned Federal Shariat Court, Bench at Lahore, whereby Criminal Appeal No,6-L of 2001 filed by appellant Hafeez was dismissed with modification by reducing the substantive sentence from imprisonment of life to ten years under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and section 377, P.P.C. With fine of Rs,5,000 or in default to undergo six months' R.I.
Whereas appeal to the extent of Rashid Ali was allowed and he was acquitted.
2. In this case appellant Hafeez and acquitted accused Rashid Ali and Ghulam Murtaza alias Shahbaz were sent up to face trial before the Court of learned Additional Sessions Judge, Hafizabad, who on conclusion of trial acquitted Ghulam Murtaza whereas convicted and sentenced appellant Hafeez and Rashid Ali to imprisonment for life under section 12 of the Ordinance and section 377, P.P.C. With fine of Rs,20,000 or in default to undergo six months' S.I.
3. The case of prosecution in brief is that on 7-11-1994 at 8-00 p.m. While victim Zahid Rafique aged about 14 years, brother of complainant, was coming back after finishing his work as Tailor Master in Mohallah Farooqabad, Hafizabad and when he reached near the house of Ch Ahmed Khan, there appeared a car in which acquitted accused Ghulam Murtaza, Rashid Ali and appellant Hafeez came there who forcibly boarded Zahid Rafique in the car and took him to Alipur Road, to the fields where all of them committed sodomy with him. The case was registered on 9-11-1994 with Police Station City Hafizabad.
4. In order to prove its case the prosecution examined 13 witnesses in all.
5. Dr. Shaukat Mumtaz, Medical Officer, examined the victim but his evidence was not recorded because his whereabouts were not known and had left abroad. However, at his place Dr. Capt.
Khalid Farooq P.W.13 was examined as he was acquainted with his handwriting and signatures and brought Medico-Legal certificate on record.
6. Appellant in his statement recorded under section 342, Cr.P.C. Denied the case of prosecution and while replying question No,5 he stated as under:-- "I am innocent. In fact I am tenant of Muhammad Rafique, father of victim and complainant who wants to eject me from the shop forcibly. Quarrel took place between us before the registration of this case. Victim Zahid Rafique has falsely involved me in this case. Muhammad Siddique P.W. Is my co-villager, before the registration of this case he was involved in so many criminal cases, my father helped the complainant party due to that grudge, Muhammad Siddique P.W.6 deposed against me. Shoukat Ali P.W. Is maternal-uncle of victim Zahid Rafique who also bore grudge against me due to dispute of shop."
7. He neither examined himself on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
8. On conclusion of trial, the learned trial Court convicted both appellant Hafeez alias Hafeeza and acquitted accused Rashid Ali as stated above.
9. Leave to appeal was granted on 22-4-2003 to reappraise the evidence in order to ascertain whether the testimony of victim in particular was properly appreciated by the Courts below or not.
10. No one is present on behalf of appellant though called since morning.
11. We have heard Raja Saeed Akram, Additional Advocate-General, Punjab and have gone through the record and the proceedings of the case in minute particulars.
12. Admittedly, in this case the testimonies of victim Zahid Rafique and that of complainant Muhammad Nasir Rafique have not been believed against two acquitted accused. Prosecution evidence in this case against all the three is identical and is on same footing. The statement of victim and Medico-Legal certificate issued by Dr. Shaukat Mumtaz is to be scrutinized in minute particulars for basing the conviction against appellant. Victim Zahid Rafique in his statement at trial has stated that the act was firstly committed by acquitted accused Ghulam Murtaza upon him then acquitted accused Rashid Ali and thereafter by appellant. This version is not supported by medical certificate issued by Dr. Shaukat Mumtaz wherein it is mentioned that they were neither scratch marks present on both elbows and knee joints nor abrasion of skin around the anus. There was no anal discharge and there was also no fresh or heeled laceration on mucus membrane inside the anus. According to Dr. Capt. Khalid Farooq since the swabs were stained with semen hence possibility of sodomy could not be ruled out.
15(sic). The important aspect of the matter is that swabs sent for chemical analysis were kept in the Malkhana and were taken to Office of Chemical Examiner on 13-11-1994 by P.W.2 Muhammad Waris, A.S.-I. Who did not give any reason for belatedly sending the same to Chemical Examiner.
The defence version taken by appellant that he was the tenant of Muhammad Rafique, father of victim and complainant who wanted to eject him from the shop forcibly reflects that there was some dispute between them prior to the incident. On scrutiny we are of the opinion that the version put-forth by victim is not supported by medical evidence. Hence possibility of appellant's false implication cannot be ruled out.
16. Accordingly, the appeal is allowed and appellant Hafeez alias D Hafeeza is acquitted from the charge. He be released forthwith if not required in any other case.