1. ' MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal arises out of the acceptance of a State appeal against acquittal of the petitioners in a case under section 377 of the Pakistan Penal Code by the High Court vide its judgment dated the 10th of May, 1979, whereby the appellate judgment of acquittal by the learned Additional Sessions Judge dated 4-8-1977 was set aside and the case was remanded to the learned lower appellate Court for recording additional statements of the petitioners under section 342 of the Criminal Procedure Code, affording them opportunity of leading evidence on the question of identification and for fresh decision.
2. ' The petitioners were tried for committing sodomy on Ahmad Adam complainant. The culprits were not known to the witnesses, he informed his father about the occurrence who took him to the police station and consequently an F. I. R. Was registered. After the arrest of the petitioners they were put in identification parades wherein the victim identified each one of them. One of the petitioners also made a confession. The learned Magistrate relying on the statement of the victim corroborated by medical evidence and the deposition of his father and after taking note of the aforementioned confessional statement and also the identification parades found all the petitioners guilty of the charge. And on conviction they were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs, 1,000 each.
3. ' On appeal it appears that a plea was raised before the learned Additional Sessions Judge that the complainant (victim) was not of such a sound mind so as either to lodge an F. I. R. Or to make a deposition before the trial Magistrate. Accordingly, with the consent of both the parties the learned Judge summoned him and after putting some questions to him as also to his father formed a certain opinion which was expressed in the judgment in the following words :- "On request of both the parties I summoned the victim, in the Court and observed that apparently he seems to be in the age of 16 or 17 years, on my asking from the victim about his name and education he replied me in manner which inferred that he is not normal boy and the same was confirmed by his father who was present in the Court that the boy is not of sound mind and it was also stated that despite his best efforts his boy could not get education due to his disability of mind."
4. ' Undoubtedly this aspect of the matter influenced the learned Judge, but the judgment further discloses that various other factors also influenced his mind for reaching a conclusion that the prosecution had failed to prove the case beyond a reasonable doubt. The other reasons include (i) that the learned Magistrate had failed to question the accused with regard to the results of the identification parades (ii) that F.I.R. Was not in fact, lodged by the victim himself but was the result of the effort and statement made by his father ; (iii) that the medical evidence was not helpful ; (iv) that the confessional statement of one of the petitioners was, in fact, exculpatory : (v) that the identification parades were not conducted in accordance with the settled principles in that behalf ; and (vi) that the description of the, culprits was not given in the F. I. R.
5. ' The learned Judges of the Division Bench in the High Court while refraining from dealing with the afore-noted aspects of the case which had influenced the mind of the learned lower appellate Court (because as they thought, in view of the order of remand they proposed to pass, their judgment on these issues would influence the lower Court) set aside the judgment of acquittal on two main grounds : firstly, that it was not a "good and legal ground for the acquittal of the accused" that the victim appeared to the learned Additional Sessions Judge as a person of unsound mind, and secondly, that the learned Judge had misread the evidence and the judgment of acquittal was bad on account of non-application of mind to the facts and law.
6. ' The learned counsel for the petitioners has contended that apart from the question of unsoundness of mind, the learned Additional Sessions Judge had taken into consideration various infirmities in the prosecution case and it was necessary for the High Court to have dealt with all those infirmities before setting aside the judgment of acquittal. He has in particular laid stress on what he described as exculpatory nature of the confessional statement said to have been made by one of the petitioners and the identification parades which according to him were conducted against settled principles including those relating to the number of outsiders to be joined in such like parades.
7. ' The learned Judges of the High Court while dealing with the observation of the learned Additional Sessions Judge relating to the unsoundness of the mind of the victim observed that "if the witness was of infirm mind, the proper course was to obtain the opinion of an expert otherwise this personal observation was not called for". It was also noted that at the trial such defence had not been taken that the victim was of unsound mind nor any prayer was made for the examination of an expert at that stage. On the other hand the learned Judges took due note of the fact that "the victim Was cross examined at length and his answers were rational".Several questions arise in this case : Whether the learned Additional Sessions Judge passed his judgment of acquittal primarily on his opinion that the victim was of unsound mind ; whether the other points considered in the judgment of acquittal are separable from the aforenoted point, and if so whether they were sufficient for reaching a conclusion regarding benefit of doubt ; whether the opinion formed by the learned Additional Sessions Judge regarding so called unsoundness of the mind of the victim was in a technical sense so as to exclude his deposition from consideration or he formed an opinion of deficient mental faculties of the victim in a general way so as to make a judgment of the value of the deposition of the victim ; whether the High Court took the findings of the learned Additional Sessions Judge in the former or latter sense ; whether it was not necessary for the learned Judges of the High Court to have examined the various points noted by the learned Additional Sessions Judge as going in favour of the petitioners and creating reasonable doubt regarding the prosecution case against them, before setting aside the judgment of acquittal, and whether the accepted principles regarding the setting aside of a judgment of acquittal were kept in mind by the High Court.
8. ' Apart from the above questions, the further question would arise whether the learned Additional Sessions Judge as also the learned Judges in the High Court appraised the evidence in accordance with the accepted principles of administration of criminal justice.
9. ' We, accordingly, accept this petition and grant leave. The petitioners are stated to be on bail. They shall remain on bail on the same bail bonds already furnished by them. The proceedings as a result of the remand order passed by the High Court are stayed.