1. ' IFTIKHAR HUSSAIN BUTT, J.--- Habib Ullah appellant aged 27 years was challaned in a case F.I.R.
2. No,188 dated 11-10-2005 registered at Police Station Bhimber for having committed offence under section 377, A.P.C. Read with section 12 of The Office of Zina (Enforcement of Hudood) Act, 1985, (hereinafter to be referred as the Act). He was convicted by District Criminal Court, Bhimber and sentenced to undergo 25 years' rigorous imprisonment along with fine Rs,20,000 under section 377, A.P.C. Vide judgment dated 28-2-2006.
3. ' The report Exh.P.A. Was lodged by Ghulam Rasool (P.W.1), father of the victim at Police Station Bhimber which was recorded by Zulfiqar Ali Head Constable Police (P. W.10). The investigation was also conducted by him.
4. ' The prosecution case mainly rests on the evidence of Naveed Rasool, victim (P.W.2) and Ghulam Rasool (P.W.1).
5. ' Naveed Rasool briefly has stated that on 11-10-2005 at 9-30 a.m.; the accused took him into the bathroom located at the roof of his house and by taking off his trousers committed sodomy with him. When he started weeping, the accused fled away. His mother went up on the roof and took him to the shop of his father who lodged F.I.R. At police station.
6. ' Ghulam Rasool (P.W.1) fully corroborated the version of the victim and deposed that on narrating the occurrence by the complainant, he lodged F.I.R. Exh.P.A. At the police station. He further testified that the victim was medically examined by Doctor in his presence who found blood at his anus and trousers.
7. ' Dr. Allah Rehm Khokhar (P.W.7) examined the victim. He found the following injuries on his person:- "The above named examinee was presented for paedirastry/ sodomy or not.
8. ' He was examined in chest knee position. There was multiple abrasions on perianal skin of red colour not inflammed. His anus was having multiple abrasions and some of them having bleeding points and. There was tenderness on examination even with introducing finger. His Shalwar was also blood-stained. Anorectal skin was having blood and also dead sperms seen 8-10 PHPF and RBCS 12-14 PHPF.
9. ' His Shaiwar for blood examination and semen and anorectal swabs taken for chemical examination for semen."
10. Opinion ' All symptoms and signs reveal that paedirastry is positive. Duration within 6 hours."
11. In the opinion of the doctor, sodomy was committed upon Naveed Rasool. He sent the rectal swabs and trousers for Chemical Examiner's Report. A positive report Exh.P.F. Was received.
12. ' The plea of the accused was complete denial. He stated that he was falsely involved.
13. ' Ch. Jahandad Khan, the learned counsel for Habib Ullah appellant, vigorously contended that the alleged occurrence took place at 9-30 a.m. But F.I.R. Was lodged at 4-00 p.m. After the delay of six and half hours whereas the distance between the place of occurrence and the police station is just one furlong as such F.I.R. Cannot be taken into consideration. The learned counsel further argued that F.I.R. Was not put to the accused during his examination under section 342, Cr.P.C., therefore, it cannot be read in evidence against him. The learned counsel pointed out that Mst. Ali Begum (P.W.3), who according to the prosecution was present at home at the time of occurrence, was given up by the prosecution without any cogent reason which makes the case of prosecution doubtful and suspicious. According to him, if the above mentioned P.W. Would have appeared she certainly would have refuted the prosecution version. The learned counsel maintained that the time of recording of F.I.R. Is also disputed because according to the prosecution the F.I.R. Was lodged at 4-00 p.m. Whereas according to Ghulam Rasool, complainant, it was recorded at 12-00 p.m.; therefore, the aforesaid contradiction shows that F.I.R. Was lodged after due deliberation and preliminary investigation. The learned counsel pressed into service the submission that at the time of preparation of parcel of trousers no recovery memo. Was prepared and only after receiving report of Chemical Examiner, the parcel was taken into possession; therefore, the report of Chemical Examiner is not reliable. The learned counsel laid great stress upon the point that semen of accused was not sent to Serologist for grouping; therefore, the semen found on anus loses its evidentiary value. The learned counsel emphasized that site plan Exh.P.1 does not render any corroboration to the prosecution tale because at the time of its preparation none of the prosecution witnesses was present at the spot. In support of his arguments, the learned counsel referred to me the follow'ing authorities:--- ' (1) 1995 SCR 109, (2) 1997 PCr.LJ (F.Sh.C.) 1107; (3) 2005 PCr.LJ (F.Sh.C.) 97, 158, 1091, (4) 2006 PCr.LJ (F.Sh.C.) 171 and 790, (5) 2006 SCR 58 and 228.
14. ' Muzaffar Ali Zafar, the learned Additional Advocate-General appearing on behalf of the State and Haji Muhammad Ayub Sabir, the learned counsel for the complainant, have controverted the arguments raised by the learned counsel for the accused. The learned counsel submitted that nine P.Ws. Have fully supported the prosecution version. He further contended that the victim is 7-1/2 years old and his statement is cogent, consistent and convincing and in spite of lengthy cross- examination it could not be shattered; therefore, it alone is sufficient for conviction of the accused.
15. The learned counsel pointed out that the prosecution evidence is fully corroborated by the statement of doctor and the report of Chemical Examiner. The learned counsel also argued that the defence has admitted the commission of sodomy upon the victim during the cross- examination of Ghulam Rasool (P.W.1), who was suggested that sodomy was committed upon victim in his school by somebody; therefore, the prosecution was not bound to prove the fact of recovery of blood-stained trousers and anal swab. The learned counsel pressed into service the submission that in the light of statement of victim non-appearance of Mst. Ali Begum does not adversely affect the prosecution case. The learned counsel finally submitted that the accused committed sodomy with the victim in holy month of "Ramadan" ({{URDU TEXT}}) and the defence failed to prove any enmity between the accused and the complainant; therefore, the sentence awarded to the accused by the trial Court may be maintained.
16. ' Haji Muhammad Ayub Sabir, the learned counsel for the complainant, has further argued that it has been proved on record that the victim was kidnapped by the accused from the ground floor to the roof of complainant's house; therefore, abduction with the intention to commit unnatural lust has been sufficiently proved but the trial Court fell in grave error ,while not awarding the sentence to the accused under Section 10 of the Act, therefore, the sentence of accused may be enhanced.
17. The learned counsel laid great stress upon the point that the defence miserably failed to challenge the main story of the occurrence during the cross-examination; therefore, the occurrence would be deemed to be admitted by the defence. According to him, the prosecution version stands proved beyond any reasonable doubt; therefore, the sentence awarded by the trial Court may not only be maintained but it may also be enhanced. In support of his contentions, the learned counsel placed reliance on the following case-law:---- ' (1) 1997 PCr.LJ 1522, (2) 2000 PCr.LJ 769, (3) PLD 2004 SC -633, (4) 2005 PCr.LJ 617 and 1010.
18. After hearing the respective contentions of the learned counsel for the parties, perusing the relevant record and, the case-law cited, it may be stated that in such-like cases the evidence of victim is always of vital importance. No doubt, discrepancies on minor points appear in the prosecution evidence about lodging F. I.R. But it does not damage the prosecution story as a whole because F.I.R. Is not a substantial piece of evidence. So far as the delay in lodging F.I.R. Is concerned, it also does not create any doubt or suspicion because the identity of accused is not disputed. He is well-known to the victim. He is nephew of victim's mother. The occurrence took place in a broad-daylight. It has been held in numerous judgments of the apex Court of AJK that in the cases where identity of an accused is not disputed, delay cannot, by itself, be held to be a reason for rejecting the evidence which otherwise fully entitled to credit. If the sufficient evidence is available on the record and guilt is established beyond any shadow of reasonable doubt, mere delay in lodging F.I.R. Would not give rise to an adverse presumption against the prosecution.
19. ' It has been opined in a case titled Muhammad Ramzan v. The State and Muhammad Zaman v.
20. Muhammad Ramzan 1997 PCr.LJ 376 that delay per se is no ground for throwing aside the case of prosecution. In this case the F.I.R. Was lodged after delay of 17 hours.
21. ' It has been obserired in a case titled Zar Bahadar v. The State 1978 SCM R 136 at page 138 of the report as under:- "Mr. Enayat Elahi then pointed out that there was delay in lodging the F.I.R. As the Police Out Post was only three furlongs from the place of the occurrence, there was perhaps delay. But delay is relevant only in cases of enmity. As in the instant case, there is no evidence whatever of enmity, nothing turns on the delay in lodging the F.I.R."
22. ' It will be useful to mention here that in a case of rape, sodomy or abduction, some delay in lodging F.I.R. Is not uncommon in our society. The people avoid the glare of undesired publicity.
23. Usually, the parents in such-like cases feel their disgrace and humiliation to which they were put to by the accused; therefore, delay of 6/7 hours in making F.I.R. Is not fatal to the prosecution case in the light of peculiar facts and circumstances of the case. 1983 PCr.LJ SC (AJ&K) 761.
24. ' Coming to the instant case, after the occurrence victim's mother took him to the shop of his father, who according to him came back home, inquired details of the occurrence from the victim and then lodged F.I.R. At police station. In this manner, some time would have been consumed. I also cannot ignore this fact that the police is usually reluctant to register F.I.R. In heinous cases.
25. Therefore, the delay in lodging F.I.R. Cannot be applied like a rule of limitation as applied in civil cases. It therefore, follows that delay in making F.I.R. In the instant case could not prejudice the prosecution case.
26. ' Now I advert to another objection raised by the learned counsel for the accused that F.I.R. Was not put to the accused during the cross-examination under section 342, Cr.P.C. Which may be excluded from the prosecution evidence. It transpires from the perusal of examination of the accused recorded under section 342, Cr.P.C. That whole of the oral and documentary evidence was put to the accused for seeking his explanation; therefore, the contention of the learned counsel is repelled being misconceived and without substance.
27. ' So far as the argument of the learned counsel for the appellant about the non-appearance of the Mst. Ali Begum is concerned, is also not tenable because Mst. Ali Begum is not an eyewitness and she is witness of the fact that after hearing hue and cry of the victim she went up on the roof and after hearing about the occurrence she took the victim to the shop of the complainant, father. It is also on the record that the accused is nephew of Mst. Ali Begum; therefore, she might have avoided deposing against him. However, no enmity or grudge for falsely implicating the accused in the case could be proved on the record and defence also failed to produce Mst. Ali Begum in its support. Therefore, non-appearance of Mst. Ali Begum cannot be taken as a strong circumstance to discredit the prosecution story because the deposition of victim is sufficient to prove the appellant's guilt.
28. ' A careful examination of the statement of Naveed Rasool victim shows that he has narrated the occurrence in detail. It is consistent and coherent. The victim, in my opinion, has testified the whole occurrence. Even otherwise it is very difficult to believe that a boy of 7-1/2 years could make out a false case to involve the appellant or that he could substitute the accused for someone else: Therefore, it can safely be taken into consideration against the accused. He has fully implicated the accused for commission of unnatural offence with him. His. Statement is also supported by the medical evidence. The factum of penetration has been fully established through the bleeding of anus and the positive report of Chemical Examiner. Dr. Nadeem Amin Butt (P.W.8) has testified that accused is potent and he can perform sexual act normally. The commission of sodomy with the victim has not been disputed by the defence in the light of a suggestion put to the complainant, father. Therefore, the question of grouping of semen by Serologist does not arise. No defence plea has been brought forward by the accused. In such state of affairs, the impugned judgment is well- founded and no disregard of any principle of appreciation of evidence has been pointed out.
29. ' Let me now deal with the objection raised by the learned counsel for the accused that the recovery of trousers has not been proved by the prosecution. A careful perusal of the evidence of Zulfiqar Ali Head Constable Police (P. W. 10), Muhammad Rafique (P. W . 4), Muhammad Yasin (P.W.5) and 'Muhammad Shah Ahmad (P.W.6) reveals that in the light of deposition of Dr. Allah Rehm Khokhar (P.W.7) two parcels were prepared by doctor P.W., which were sent for the Chemical Examiner's report. It has already been held in the earlier part of the judgment that the defence has admitted the fact that sodomy was committed upon the victim but by somebody else; therefore, the argument of the learned counsel has no substance.
30. ' The learned counsel for the complainant has failed to point out any incriminating material which may justify the accused's conviction under section 12 of the Act. It has been proved on the record that the victim was taken up to the roof and subsequently subjected to unnatural offence but the element of commission of offence of abducting the victim against his will is lacking; therefore, the learned trial Court has rightly acquitted the accused of the charge under section 12 of the Act.
31. ' So far as the case-law cited by the learned counsel for the parties is concerned, is quite distinguishable from the facts of the case in hand. It is very important to observe that principles laid down in criminal cases 6 are always founded on facts and circumstances of each case and cannot be loosely applied in an omnibus manner.
32. ' For instance, the learned counsel for accused has cited many cases where the sentence of the accused was reduced. Some authorities were referred to establish that the benefit of doubt always goes in favour of the accused. Similarly, the learned counsel for the complainant has referred to me the cases governing the principle that when a piece of evidence going against a party is not challenged in the cross-examination such assertion or deposition of a witness shall be deemed to have been admitted. In the present case, such-like situation does not arise and the defence has challenged each and every incriminating piece of evidence in cross-examination. In some other cases cited by the learned counsel for the complainant, F.I.R. Was lodged after 20 minutes of the occurrence on the statement of the victim and the case was supported by two private persons whereas the instant case has not been supported by any eyewitness.
33. By taking into consideration all the facts and relevant circumstances, the impugned judgment does not warrant any interference, which is maintained; however, the sentence awarded by the trial Court is reduced from 25 years to 15 years' R.I. The sentence of fine of Rs,20,000 or in default of payment thereof to suffer three months' S.I. Is maintained. The benefit of section 382-B, Cr.P.C. Shall also be extended to the convict-appellant.
34. ' With the above modification, the appeal filed by the convict-appellant is dismissed. Resultantly, the appeal filed by the complainant also fails.