This appeal is directed against the judgment dated 18-09-2007, passed by learned Additional Sessions Judge Daska, District Sialkot, whereby appellant Usman son of Asghar Ali has been convicted under Section 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo 5 years R.I with a fine of Rs, 15,000/- or in default of payment of fine to further undergo R.I. for one year. He has also been convicted under Section 377-PPC and sentenced to undergo 5 years R.I. with a fine of Rs, 5000/- or in default of payment of fine to further undergo S.I for four months. Both the substantive sentences of imprisonment have been ordered to run, concurrently. Benefit of Section 382-B Cr.P.0 has also been extended to the appellant by the learned trial Judge.
2. Brief facts of the case are that complainant Mst. Azra Bibi lodged FIR No, 85/2006 dated 19-04- 2006 at about 3-15 p.m. with Police Station Satrah, District Sialkot, wherein she alleged that on 17- 04-2006 when she had gone in her parental house in village Chianwali, her son Aman Ullah, who used to reside there, did not come across her. She inquired about him. The inmates of the house told that sufficient time had elapsed but he did not return home. The complainant along with Muhammad Azam, her brother and Ashiq son of Allah Ditta went out in search of Aman Ullah; when reached on the path leading towards village Faqiranwali, they heard the voice of shrieks and went towards a nearby field. They saw Aman Ullah besmeared with blood and his shalwar was off.
Usman son of Asghar Ali resident of the village while holding his shalwar in his hand fled away. The son of the complainant while weeping told that Usman had committed sodomy with him. Hence this case.
3. After completion of investigation the I.O. submitted challan against the accused person to the Court to face the trial. The accused was charge sheeted on 20-07-2006 by the learned Additional Sessions Judge, Daska under Sections 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Section 377-PPC but the accused person pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced seven witnesses. P.W.1 Aman Ullah, is the victim in this case. He being of tender age, the learned trial Judge asked certain questions to check his competency to understand the things in its true perspective and was found fit to make statement. He stated before the Court on oath the facts which his mother, complainant Mst. Azra Bibi had narrated. He also reiterated the versions given in the FIR and deposition of the complainant. P.W.2 Mst. Azra Bibi is the complainant. She also reiterated the version given in the FIR, However, in her cross-examination she deposed that after the occurrence, her father was opposing the registration of the case so as to save the honour of their family but she insisted to get the case registered. She further deposed that it is incorrect that no such occurrence was committed with Aman Ullah, his son. P.W.3 Muhammad Azam is an eye-witness of the occurrence. However, in his cross-examination this. witness deposed that it is correct that Raisham Bibi had sold five acres of land to Asghar father of accused. Tufail had filed a suit for pre-emption against Asghar Ali, over the aforesaid 5 acres of land. PW.4 Dr.Abdul Wahab who had medically examined the accused/appellant on 23.5.2006 at 12.30 p.m and found as under: "The injured was brought by Ansar Abbas C-1769 Police Station Satrah. Muhammad Usman was a young boy of about 14/15 years of age. He was well oriented time and place. B.P 110/70. Primary and secondary sex characters present. Axillaries and pubic hairs developed/grown. Penis well developed. Beard and moustaches not grown. Cremates reflexes present on both sides of thigh. No pathological or humeral disease found. On prostates massage, a clear fluid came out from urinary meat-us.
The doctor opined that the above said person was fit to perform sexual intercourse. P.W.5 Dr. Muhammad Hafeez who had medically examined the victim Aman Ullah aged about 11 years on 19.4.2006 and found as follows:-- "Patient was well oriented in time and space. Apparent look was well built and heaichy Respiratory rate normal Pulse was normal. No abrasion or bruise were seen in the whole body, even in the perineal area and buttocks. Sphincter tone was relaxed. No tear was noted".
The doctor opined that in the light of the Chemical Examiner's report, nothing can be suggested about the act of sodomy. P.W.6 Mazhar Abbas H.0 No, 1368 is a formal witness of two sealed parcels and sealed envelope and P.W.7 Muhammad Abbas ASI is the I.O. in this case, who recorded formal FIR Ex.PA/1, got medically examined the victim Aman Ullah, on the same day, he visited the spot and prepared the site-plan of the place of occurrence Ex.PG, searched the accused, on 22.5.2006 he arrested the accused, on 23.5.2006 he got him medically examined qua the potency test, recorded the statements of the witness under Section 161 Cr.P.C.
5. After completion of prosecution evidence the statement of the accused person under Section 342 Cr.P.C. was recorded wherein he denied the allegation leveled against him and claimed to be innocent. He did not opt to make his statement on oath under Section 340(2) Cr.P.C. However, he produced one witness in his defence namely Asghar Ali D.W-1.
6. On the basis of prosecution evidence the trial after hearing the arguments of both sides convicted and sentenced the accused/appellant as mentioned in the opining para hereof. Hence this appeal by the appellant.
Learned counsel for the appellant has argued that there is delay of two days in lodging the FIR and the delay remained unexplained. Further argued that the medical evidence as well as the report of the Chemical Examiner negates the commission of sodomy with the victim. Further argued that the statement of the victim was recorded by the LO under Section 161 Cr.P.0 after forty days and that too without any reason; and even the shalwar Ex.P/1 of the victim was taken into possession after forty days of the occurrence and the shalwar of the victim was neither sent to Serologist nor to Chemical Examiner hence it has no legal value and lastly it has been argued that there has been improvement in the statement of the complainant P.W.2 and even P.W3 Muhammad Azam the real brother of the complainant has negated the version given in the FIR regarding the presence of the complainant as an eye-witness and also presence of Ashiq P.W. as eye-witness.
On the other hand learned D.P.G appearing on behalf of the State has argued that though there is delay of two days in lodging the FIR but the complainant has stated in her statement as P.W.2 that he father was opposing the registration of the case so as to save the honour of the family but she insisted and got the case registered. Further argue that there is no enmity proved on record to falsely implicate the appellant in this case as neither there was any direct advantage to the complainant or her father regarding pre-emption suit nor he was directly involved in the said criminal case as to pressurize the accused party withdraw the pre-emption or give evidence in favour of the complainant party in the criminal case.
9. Heard. Record perused
10. The alleged occurrence took place on 17.4.2006 while time o occurrence has not been given but FIR was lodged on 19.4.2006 at 3.1 p.m. The P.W.3 alleged eye-witness Muhammad Azam had stated in hi evidence that occurrence had taken place at even time. The delay lodging the FIR has not been satisfactorily explained in the FIR Further-more, the victim was also got medically examined after the FI through police. The doctor who had medically examined the victim appeared as P.W.5 had stated after the receipt of the report of the Chemical Examiner" nothing can be suggested about the act of sodomy' Further-more, physical examination of the victim also did not suggest the commission of sodomy on the victim who was examined after two days of the alleged occurrence.
He did not find any abrasion or bruise of any part of the body nor in the perennial area and buttock.
Further more, report of the Chemical Examiner Ex.PE is also negative.
It may not be out of place to mention that the appellant was age 15 years and one month as per his date of birth mentioned in his matriculation certificate, which he passed from the Board of Intermediate and Secondary Education Gujranwala in the year 2007 after registration of the case and thereafter he also passed his intermediate examination in the year 2009 after his conviction and now he is a regular student of 3rd year in the Government Degree College Daska (Sialkot) as his sentence was suspended by this Court vide order dated 14-04-2008.
11. In view thereof I am of the considered view that the prosecution has failed to prove its case against the appellant for commission of sodomy as well as for abduction of a minor Aman Ullah for the purpose of sodomy beyond reasonable doubt. Consequently this appeal is allowed. The convictions and sentences of the appellant Usman son of Muhammad Asghar Ali recorded by the learned trial Court on 8.9.2007 under Section 12 Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and under Section 377 PPC are set aside and he is acquitted of both the charges.
The appellant is present on bail. His bail ponds stand discharged.