CH. MUHAMMAD TARIQ, J.---This criminal appeal has been directed against the judgment dated 13-4-2010 passed by Additional Sessions Judge Attock in case F.I.R. No, 76, dated 26-5-2009, for the offences under sections 367-A/377, P.P.C., registered with Police Station Bahtar, District Attock.
2. Brief facts of the case are that on 23-5-2009 at 2-00 p.m, when Shahid Mahmood victim (the son of the complainant) after school hours was coming back to his home, the appellant-accused met him on the way and took him inside the school forcibly and committed sodomy with him. On hearing the noise of the child, one Asad Ali son of Muhammad Suleman rushed to the site, the accused was apprehended and as a result whereof, the instant criminal case was lodged against the appellant accused. On receipt of challan in the court, copies of the statement of the witnesses under section 161, Cr.P.C. were supplied to the appellant-accused. The formal charge was framed against the appellant-accused to which he pleaded not guilty and claimed trial.
3. After conclusion of prosecution evidence, the learned Additional Sessions Judge, Attock Camp at Fateh Jang convicted and sentenced the appellant under sections 367-A/377, P.P.C. to 5 years' R.I. with fine of Rs,20,000 and in default of payment of fine, to further undergo six months' S.I. All the sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was also extended to the appellant-accused.
4. Learned counsel for the petitioner contends that the appellant-accused is innocent, he has not committed any offence and no case is made out against the appellant-accused. He further, contends that the ocular account is inconsistent, which is not corroborated by the medical evidence, therefore, the criminal appeal be allowed and the appellant-accused be acquitted.
5. On the other hand, learned Deputy Prosecutor-General Punjab has vehemently opposed this appeal and has contended that the appellant has committed a heinous offence, the prosecution has proved its case with cogent reasons and reliable evidence beyond any shadow of doubt, therefore, the criminal appeal be dismissed.
6. Arguments heard. Record perused.
7. The alleged occurrence had taken place on 23-5-2009 at 2-00 p.m. while the F.I.R. was lodged with a delay of three days, i.e, 26-5-2009 at 8-30 p.m. The record reveals that the appellant was medically examined by P.W.3 Dr. Shujaat Ali Khan who has submitted the following report:-- A young male well-oriented, secondary sex character, pubic hair and auxiliary hair present, size of penis small, only one testical, erection did not take place and there is no history of ejaculation."
8. On the other hand, medical examination report of victim is as under: "Rectal examination:---No tear, bruises seen. At the time of examination, no tear abrasion found.
On external examination, two internal swabs and shalwar, qameez for seen diction and grouping sent to chemical examiner and vide report dated 1-6-2009, the chemical examiner found that the swa bs are not stained with semen. While the shalwar and qameez are stained with semen but thereafter there is no result of grouping."
9. The statement of P.W.3 makes the case of prosecution highly doubtful when particularly there is no other corroborative evidence in support of sole statement of the victim. There is also unexplained and inordinate delay of 3 days in lodging the F.I.R.
10.As discussed above, the prosecution has failed to prove its case beyond, any shadow of doubt.
Resultantly this criminal appeal is allowed, the impugned judgment dated 13-4-2010 passed by the learned Sessions Judge Attock Camp at Fateh Jang, whereby the appellant was convicted and sentenced, is set aside. The appellant who is in jail be released forthwith if not required in any other case.