This judgment will dispose of the above-captioned appeal filed by Abdul Raheem @ Nauman and Naveed Hussain @ Bodi as well as above-captioned revision petition filed by Javed Iqbal, complainant for enhancement of their sentence. The appellants were convicted and sentenced by the learned Additional Sessions Judge, Gujar Khan in a case registered vide F.I.R No, 386 dated 06.07.2008 under Sections 367A/ 377 PPC at Police Station, Gujar Khan, vide impugned judgment dated 12.05.2010. Infra conviction and sentences were imposed on the appellants:-- Abdul Raheem & Naveed Husain ft Bodi. {{TABLE}} Under Section 367-A, PPC Five years Rigorous Imprisonment each alongwith fine of Rs, 10000/- each and in default whereof simple imprisonment for two months each.
Under Section 377, PPC Five years Rigorous Imprisonment each alongwith fine of Rs, 10000/- each and in default whereof simple imprisonment for two months each, whereas the benefit of Section 382-B Cr.P.C. was also extended to them. Both the sentences were ordered to run concurrently. {{TABLE}}
2. Complainant, Javed Iqbal (PW.6) on 06.07.2008 submitted an application Exh.PE before PW-7 Syed Lal Hussain, SI for the registration of the case, which bore his thumb. impression, on the basis of which formal FIR Exh.PF was lodged. The abridged facts disclosed by him therein are that he was resident of Mohra Dhamial and doing labour. He had one son Asjad Javed aged about 8/9 years and three younger daughters. On the said date, after having made him free from the labour at evening time, when he reached at his house, he found that his son was not present there. After rummage, his son Asjad Javed met him while coming to the house from a deserted passage outside the village, who was weeping. "On his query, his son told him that in the evening time at 06- 10 p.m., he was playing outside the house, when appellants Abdul Raheem (Nauman) and Naveed @ Bodi, residents of the village called him and through allurement took him to a forsaken room outside the village abadi, where both of them committed carnal intercourse against the order of nature with him and he relieved himself with a great difficulty"
3. The motive alleged by the complainant was that he had dispute over landed property with the parents of the appellants.
4. Syed Lal Hussain Shah, SI appeared as (PW-7). He deposed that on 06.07.2008, after receiving complaint Exh-PE from Javed Iqbal complainant, registered formal FIR Ex-PF. On the same day, he sent, Asjad Javed victim in the company of Nazir Ahmad 418-C alongwith application Exh-PA for his medical examination, who on the same day, delivered him M.L.R No, 329 Exh-PB and three phials containing semen swa bs for medical examination, took the same into possession vide recovery memo. Exh-PC, visited the place of occurrence and prepared its rough site-plan Exh-PG. On 19.08.2008, he arrested the appellants and sent them for their potency test. After medical examination, Muhammad Imran 5121-C delivered him the M.L.Rs Exh-PC and Exh-PD of the appellants and rook the same into possession. On 20.08.2008, the appellants were sent to judicial lock up. He investigated the case and, recorded the statements of the PWs. During the investigation, he found the appellants to be guilty. He submitted report under Section 173 Cr.P.C. before the learned trial Court, duly verified by the Inspector/SHO.
5. Learned trial Court after observing all the pre-trial codal formalities, treated the appellants as juveniles, indicted them to which they did not plead guilty and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case.
6. At the trial, the prosecution in order to prove its case produced seven prosecution witnesses in all.
7. The medical evidence was adduced through the statement of Dr. Haji Tariq Mehmood (PW-1), who on 06.07.2008 conducted medical examination of Asjad Javed, the victim and observed as under-- Local Examination.
External Sphincter shape and tone was normal. Anal canal was also normal there was no injury seen. On rectal examination mucosa was normal feacal matter was present over rectal area. He has not changed the cloths and not passed stool and not washed anus afterward.
Three swa b 1. Perianal 2. Anal.
3. Rectal swabs taken and sent for semen detection and final opinion was deferred till chemical examiner report.
Vide Chemical Examiner Report No, CE.52/5784 dated 12.07.2008 all the swabs were stained with semen. Therefore, in his opinion sodomy had taken place. MLR No, 329 Exh-PB was in his hand writing and bore his signatures. He handed over a sealed parcel alongwith correct Copy of Exh-PB to above said Nazir Ahmad PW. He also attested the above said report.
Dr. Muhammad Sohail Ijaz was examined as PW-02, who on 19.08.2008 conducted potency test of the appellants and found them potent.
8. Learned DDPP renounced PWs namely Muhammad Shafique, Muhammad Pervaiz and Waqas Raza 7607/C being unnecessary. He by tendering in evidence report of Chemical Examiner Exh-PH closed the prosecution case.
9. Then the statements of the appellants under Section 342, Cr.P.C. were recorded, in which they denied and controverted all the allegations levelled against them by the prosecution and professed their innocence. The appellants, however, neither opted to make statement on oath under Section 340(2), Cr.P.C. nor to produce evidence in their defence.
Appellant Abdul Raheem @ Nauman in reply to the question "Why this case against you and why the PWs deposed against you" answered as follows:-- "I am innocent. This false case was registered against me by the complainant because my mother Mst. Naureen Akhtar got registered a criminal case against complainant and his brother Muhammad Pervaiz and civil litigation is also pending between my parents and complainant.
There is previous enmity between my parents and complainant. Complainant got registered this case against me to bring under pressure my parents to make compromise in civil dispute. No independent witness has appeared to support prosecution case. Medical evidence is in conflict with ocular evidence. I was declared innocent by I.0 during investigation".
Appellant Naveed Hussain @ Bodi in reply to the question "Why this case against you and why the PWs deposed against you" answered as follows:-- "I am innocent. Complainant has got registered false case against me to force my parents for compromise in civil dispute with complainant. No person from the village has appeared in support of prosecution case. Medical evidence is in conflict with ocular evidence."
10.Upon conclusion of the trial, appellants were convicted and sentgnced as mentioned above by the learned trial Court.
11.Learned counsel for the appellants submits that both the appellants have been falsely involved by the complainant because of previous civil litigation in order to entangle the appellants to settle the dispute of property which had occurred between the parties and pending before the learned Court. It has been contended that no such incident had ever taken place and even nobody saw the incident. The learned counsel has further submitted that the statement of the alleged victim Asjad Javed has not been supported by the medical evidence and mere positive report of the semenal swa bs of the victim by itself is not sufficient to hold the appellants guilty or to lip hold their conviction and sentence. Lastly it has been submitted that the Investigating Officer during the cross-examination has categorically admitted that in his investigation, it transpired that Abdul Reheem (Noman) was present in his house at the time of occurrence and he has also admitted the other facts go against the prosecution case.
12.Learned Law Officer assisted by the learned counsel for the complainant has vehemently opposed the submissions and has argued that the statement of minor victim Asjad Javed PW-5 is duly corroborated by the statement of PW-01 Dr. Haji Tariq Mehmood, examining officer and positive report of the anal swa bs is sufficient to bring home the charge against the appellants. It has also been argued ,that the learned trial Court has already taken lenient view in sentencing the appellants on account of juvenility and such like incidents are normality. Learned counsel has further submitted that no body makes his honour and dignity at stake in report of such like false incidents but in this case, in fact the nrcurrence took place and the prosecution has ably proved its case against the appellants and that no irregularity and illegality exists in the impugned judgment, therefore, appeal may be dismissed.
13.I have heard the learned counsel for the parties and have also gone through the record.
14.Indubitably before the happening of the instant incident, litigation over landed property was going on between the parties and this fact has also not only been mentioned in. the FIR but has also been brought on the record during the trial. This fact has also gone unchallenged that the occurrence was not seen by any person and the occurrence has only been narrated by minor PW- 05 Asjad Javed. Now question arises whether his statement has been corroborated by the medical evidence or not?. PW-1 Dr. Haji Tariq Mehmood, THQ, Hospital, Gujar Khan examined the victim on 06.07.2008 and observed as follows:-- "The petitioner gave history of sodomy at noon.
On generally he was healthy active cooperative child, well oriented, there was no injury on body.
Local Examination.
External Sphincter shape and tone was normal. Anal canal was also normal, there was no injury seen. On rectal examination mucosa was normal feacal matter was present over rectal area. He has not changed the clothes and not passed stool, and not washed anus afterward.
Three swa b 1. Perianal 2. Anal.
3. Rectal swabs taken and sent for semen detection, and final opinion was deferred till chemical examiner report.
Vide Chemical Examiner Report No CE 52/5784 dated 12.07.2008 all the swabs were stained with semen Therefore, in my opinion sodomy has taken place. MLR No, 329 Exh-PB is in my hand writing and bears my signatures. I handed over a sealed parcel alongwith correct Copy of Exh-PB to above said Nazir Ahmad PW-1 also attested the above said report.
15.It has been observed that both the appellants were tried as of juvenile as they were ranging from the ages of 14 to 16 years. PW-02, Dr. Muhammad Sohail Ijaz examined them for their potency, has categorically testified that both were potent and could Perform sexual act. On the other hand, the age of the victim has been found ten years and if the forceful commission of carnal intercourse has been made by both of them one after the other then why any injury beside the anal area of the victim was not received and how no abrasion, bruise, laceration, tear or any other factor of use of force or sign of injury has been found around or inner the anus area. The alleged victim of sodomy has not been found habitual to the act and if this was the situation then even swelling on the effected area has not been found by the doctor. The victim has not reported any pain to the doctor in any part of the body particularly in his rectal area. In this way, it is concluded that the statement of the victim has not been even corroborated by the medical evidence. The doctor has categorically stated during the cross-examination that the clothes of the victim were not even torn, stained with mud, blood or semen and the passive agent has not made any complaint of pain during his walk and even at the time of his medical examination. The doctor has also not ruled out the possibility of this fact that if two young boys commit the sodomy with a child of ten years, bruises and abrasions had to occur around the perianal area. In this way, the testimony of the doctor does not prove the commission of carnal intercourse against the order of nature with PW- 05, Asjad Javed.
16. So far as positive report of the anal seminal swabs is concerned that is not taken to be a substantial piece of evidence but the corroborative one and when the evidence of substantive nature is not believed then collateral/corroborative piece of evidence can be thrown out of consideration.
17. Another important aspect in this case is that the swabs were deposited in sealed phial in the office of Chemical Examiner, Punjab, Rawalpindi by Waqar Raza C. No, 7608 on 08.07.2008 but the prosecution has not examined him as PW. On continuum paragraph 6 of the impugned judgment, it has been found that PW Waqar mentioned above was given up by the prosecution as being unnecessary. In this backdrop as well, how the safe custody and transmission of the swabs can be certituded?, therefore, this piece of evidence of the prosecution case also seems to be doubtful.
18. Both the appellants in their statements have pellucidly pleaded their innocence and advanced reasons of their false involvement. The same has already been mentioned op-cit, therefore, there is no need to repeat the same again here.
19. In these circumstances, what has been discussed above, the prosecution has miserably failed to prove its case against the appellants. Resultantly, the instant appeal is allowed, impugned convicting and sentencing judgment is set aside, the appellants are acquitted of the charges levelled against them and they are directed to be set at liberty, if not required in any case in a trice.
20.The revision petition filed by the complainant seeking enhancement of quantum of sentence of the appellants, in view of the acceptance of appeal seems meritless and is dismissed accordingly.