SHAHZADO SHAIKH, J.---Appellant Muhammad Aslam has through this appeal challenged the judgment dated 5-5-2010 delivered by the learned Additional Sessions Judge, Bhalwal whereby he was convicted under section 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years' rigorous imprisonment with a fine ofRs,50,000, in default whereof to further suffer 4 months' imprisonment. He was also convicted under section 377 of the Pakistan Penal Code and sentenced to life imprisonment with a fine ofRs,50,000 or 4 months' imprisonment. He was also ordered to pay compensation ofRs,1,00,000. To the victim under section 544-A of the Code of Criminal Procedure, in default whereof to further suffer 6 months' imprisonment. Both the sentences shall run concurrently with benefit of section 382-B of the Code of Criminal Procedure.
2. .Brief facts of the prosecution case as alleged in the complaint Exh.PA and F.I.R. Exh.PA/1 dated 15- 9-2006 lodged by complainant Umar Hayat P.W.2 are that Muhammad Rizwan, innocent child of 13 years, is his nephew whose father. Khizar Hayat was murdered in 1996. The supervision etc. Of Muhammad Rizwan is with him. Muhammad Rizwan was a student of 8th class. On the day of occurrence, Rizwan was returning to his home after closure of the school at about 11-00 a.m. When he reached in the street near his house, accused Muhammad Aslam was standing. He asked Rizwan to listen to him after placing his school bag in the house. Rizwan kept his school,bag in the house and came out. Accused Muhammad Aslam asked Rizwan to accompany him on the pretext of some work with him. Accused took Rizwan with him towards Mobilink Tower. Rizwan asked him about the work whereon accused said to Rizwan that if he would make a noise, he would get him abducted through Ashique Kumhar (one P.0). Then he took Rizwan into adjacent sugarcane crop where he forcibly opened up the string of Rizwan's Shalwar; laid him on the ground and started committing unnatural offence with Rizwan. When Rizwan did not come home, complainantside got worried whereon complainant and Shehzad Ahmad paternal cousin of the complainant went out in order to inquire/search about Rizwan. In the street, Nazar Muhammad met them. They inquired from him about Rizwan who told that Muhammad Aslam was taking Rizwan on the way that leads towards Tower. They both went towards the path leading towards the tower when from sugarcane crop they saw. That accused Muhammad Aslam was committing sodomy with Rizwan while laying him on the ground and Rizwan was screaming. Seeing them, accused Muhammad Aslam ran inside the sugarcane crop.
3. After registration, the case was investigated by Inspector Abdur Rehman, Station House Officer who reached the venue of crime; recorded statements of P.Ws.; prepared injury statement Exh.PC; after this victim Rizwan was escorted by Constable Suleman to Hospital for medical examination; prepared rough site plan Exh.PD on the pointation of P.Ws.; Constable Suleman handed over to him a sealed phial for onward transmission to the office of Chemical Examiner. On 19-9-2006 he arrested the accused Muhammad Aslam. Effected recovery from the accused; recorded statements of the witnesses under section 161 of the Code of Criminal Procedure. Thereafter he completed the investigation and submitted report under section 173 of the Code of Criminal Procedure against the accused.
4. Charge was framed by the learned trial Court against the accused Muhammad Aslam on 7-1- 2008 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 377 of the Pakistan Penal Code. Statement of the accused was recorded with reference to charge- sheet. He pleaded innocence and claimed trial.
5. In order to prove the case, the prosecution produced 7 P.Ws. At the trial. The gist of their statements is as under:--
(i) P.W.1: Dr.Waqar Hameed conducted potency test of accused Muhammad Aslam and found him fit to perform sexual intercourse. He also medically examined the victim Muhammad Rizwan and observed as under:-- "The victim was not habitual. Semens were stained all around the anis. Stool was passed and he was not shy. Laceration on 9-0-clock position. Anil mucusae was red and bleeding. No poise or any venreal disease was present.
' As per Chemical Examiner's report, the anal swabs were stained with semen.
' In the opinion of the doctor, the sodomy was committed with the victim.
(ii) P.W.2: Umar. Hayat is complainant of the case. He endorsed the contents of the crime report Exh.PA.
(iii) P.W.3: Muhammad Rizwan is victim of the case. He also supported the occurrence and corroborated the version of the complainant.
(iv) P.W.4: Muhammad Azam Moharrar is a formal witness of handing over the sealed parcel for submission in the office of Chemical Examiner, Rawalpindi.
(v) P.W.5: Constable Muhammad Khan is the formal witness of arrest of accused Aslam by Abdur Rehman S.I.
(vi) P.W.6: Abdur Rehman Inspector investigated the case. His statement has been expounded in para No,3 supra.
(vii) P.W.7: Constable Muhammad Suleman got medically examined the victim Rizwan. '
6. After closure of the prosecution evidence, the accused Muhammad Aslam was examined under section 342 of the Code of Criminal Procedure. He denied the charges and pleaded innocence. In reply to the question "why this case against you and why the P.Ws. Have deposed against you?", accused Muhammad Aslam stated as follows:-- "The P. Ws. Have falsely involved me in this case and they have deposed being related inter se and grab money from me."
' The accused neither did appear as his own witness under section 340(2) of the Code of Criminal Procedure nor did he produce evidence in his defence.
7. The learned trial Court after hearing learned Counsel for the contending parties, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment.
8. We have gone through the evidence of witnesses of the prosecution, statement of the accused and the material available on record. Relevant portions of the impugned judgment have been scanned.
9. Ch. Muhammad Qasim, learned Counsel for appellant Muhammad Aslam has formulated the following points for consideration of the Court:--
(i) The accused has been seriously prejudiced because charge was not framed against him by the learned trial Court according to the procedure.
(ii) The kidnapping of the victim was not proved because the victim himself admitted in his cross- examination that he was not forcibly abducted from his house. Furthermore the prosecution has not established the distance between the house of the victim and the place of occurrence. In this regard the learned Counsel relies upon the following judgment:-- 1986 SCM R 1947 ' Abdul Wadood and another v. The State No specific mention of distance between place where victim child was playing and place to which he was removed for committing carnal intercourse against order of nature---Distance, at places, described as short distance and victim describing it as a long distance---Discrepancy and lack of certainty---Benefit of doubt, held, must be extended to accused so far as offence under S.12 of Ordinance was concerned.
(iii) No independent witness appeared before the trial Court to depose against the appellant except the complainant and the Victim.
(iv) Last worn clothes of the victim were not produced.
(v) The doctor had not observed any marks of violence on the body of the victim.
(vi) Nazar Muhammad witness who said that he had seen the victim going with the accused was not produced.
(vii) There are contradictions between the statements of the complainant and the victim.
(viii) No one had created any hurdle when the victim was'abducted by the accused from near his residence.
(ix) Both the parties were living in the same village and there was a dispute regarding cattle business which was the reason that the accused was falsely involved in this case.
(x) The impugned judgment is based upon misreading and non-reading.
(xi) The story narrated in the F.I.R. Is highly improbable.
(xii) The complainant and the victim are related inter se and are interested witnesses.
(xiii) The semen stained swa bs were sent for test of grouping but the report was not produced. In this regard the learned Counsel relies upon the following judgment:-- 1997 PCr.LJ 1107 ' Waqar-ul-Islam and another v. State Semen of accused not sent to Serologist for grouping--Evidentiary value of semen stained swabs- --Semen found on vaginal or anal swabs loses evidentiary value if semen of accused is not ,obtained and got examined and matched with semen found on the said swabs by Serologist.
(xiv) As a last resort, without prejudice to his arguments, the learned Counsel stated that compromise has been effected between the accused and the complainant party and Umar Hayat, complainant, is present in the Court. The learned Counsel requests for reduction of sentence of the appellant on the basis of compromise effected between the parties.
12. On the other hand, Ch. Muhammad Ishaque, DPG has stated as under:--
(i) F.I.R. Was lodged promptly in this daylight occurrence.
(ii) The complainant narrated the natural story in the F.I.R. Which was fully corroborated by him as well as the victim in their statements before the learned trial Court. Ocular accounts are natural and confidence-inspiring.
(iii) The victim was minor as he was about 13 years old at the time of occurrence.
(iv) There was no enmity between the complainant and the 'accused party.
(v) Substantial pieces of evidence are available on the record against the accused, therefore, corroboration is not necessary.
(vi) All the P.Ws. Recorded their statements before the learned trial Court in line with each other and there were no discrepancies between their statements.
(vii) As regards the argument of defective charge, the learned Counsel for the State stated that if there is any irregularity in framing of the charge, it has not prejudiced the right of the accused because he did not challenge the same throughout the trial. The evidence of the prosecution was recorded in his presence and he availed full opportunity to cross-examine the P.Ws.
(viii) The offences under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance and under section 377, P.P.C. Are not compoundable, therefore, the compromise in this case between the accused and the complainant has no value. The State is also party in this case.
(ix) Test/grouping/matching is not necessary because in this case only one accused is involved and the question of grouping test arises in those cases where two or more accused are involved.
(x) The accused had committed heinous offence with a minor orphan, therefore, he deserves no leniency.
(xi) The prosecution has proved its case- beyond any shadow of doubt. Furthermore the learned Counsel states that in this case the learned trial Court had already taken a lenient view while awarding sentences. After careful examination of the evidence and consideration of the above discussion, we have concluded as follows:--
13. Complainant Umer Hayat P.W.2 lodged the F.I.R. On 15-9-2006 regarding this painful occurrence the same day with his orphan nephew Muhammad Rizwan, victim P.W.3. He gave details of occurrence and categorically nominated accused Muhammad Aslam who kidnapped the victim from his house, took him in sugarcane crop where he forcibly committed sodomy with him. Initially force was not used and the accused by enticing took the victim near the Mobilink Tower and then he by extending threat took the victim in the sugarcane field. The accused by extending threat to the victim had also added the element of force.
14. Muhammad Rizwan, victim is the star witness in this case. He appeared before the learned trial Court as P.W.3. He was minor at that time, therefore, the learned trial Court after satisfying itself by putting some questions considered him a competent witness to record his statement. Although he was aged 13/14 years at the time of recording his statement yet he gave full details regarding the occurrence and nominated Muhammad Aslam the person who committed the offence. He was cross-examined at length but his veracity could not be shattered. The statement of the victim was so natural that he himself stated during cross-examination that he was not forcefully abducted from his house and the accused took him up to tower on a pretext. In the same breath he stated that the accused threatened him to remain mum otherwise he would abduct him by calling Ashiq Kumhar (P.O and desperate person). The statement of the victim was fully corroborated by the complainant Umar Hayat P.W.2. Although Nazar Muhammad, who said that he had seen the victim with the accused while going towards the Tower of Mobilink and Shahzad Ahmed, who was searching the victim along with the complainant were not produced yet in such cases solitary statement of the victim minor is sufficient to prove the allegation provided the same is consistent, corroborated and trustworthy, and in this case fully supported by the medical evidence. Non- appearance of Nazar Muhammad and Shahzad Ahmed before the learned trial Court as witnesses are not so material as the accused, the complainant and the said witnesses belong to the same vicinity and usually the people of the same locality avoid. To become witnesses against the accused due to the risk of establishing enmity with the accused.
15. Muhammad Rizwan, victim was medically examined by Dr. Waqar Hameed P.W.1 on the same day i,e, 15-9-2006. The doctor observed laceration, redness and bleeding on rectal examination.
The report of Chemical Examiner Exh.PG was positive as swabs were found stained with semen. The Doctor, after observing report of Chemical Examiner, opined that that act of sodomy was done.
Although semen stained swa bs were sent to the Serologist but no report was produced in this regard. Semen grouping is not essential because in this case only one accused was involved and grouping is necessary in those cases where accused had to be identified/connected with offence.
Even otherwise substantive piece of evidence i,e, medical evidence, report of Chemical Examiner, statement of the victim himself which was supported by the complainant is available on the record to connect the appellant, fully identified, with the crime, without any shadow of doubt. It is not a lapse on the part of the prosecution if grouping test was not conducted however the remedy was also available to the accused that if he was innocent he could have himself also applied for the same. The accused in his statement under section 342, Cr.P.C. Simply stated in his defence that "the P. Ws. Have falsely involved me in this case and they have deposed being related inter se and grab money from me." But he did not produce any corroboration/evidence to prove his plea.
16. As regards the compromise between the parties, on a Court question, the learned Counsel for the appellant stated that although the offences are not compoundable yet he requested for reduction of sentence by considering the compromise as mitigating circumstance. However, the learned Counsel has not produced anything in writing regarding the compromise while complainant Umar Hayat appeared before the Court and stated that he has forgiven the accused in the name of Allah Almighty. Neither the victim himself was present nor there was any word from him in this regard in writing. The learned CounseI for the State has vehemently opposed the plea of compromise and stated that the offences are not compoundable and these offences not only affect the complainant and the victim but also go against the objectives and responsibilities of the State, under the law. Umar Hayat complainant is uncle of Muhammad Rizwan victim, who was minor at the time of the occurrence, and now a major. Furthermore, mitigating circumstance, could be pointed out which warrants reduction of sentence of the appellant. In this case following is also relevant:-- "In absence of any mitigating circumstance, the court may not take lenient view. If culprits are allowed to be treated leniently, the object and purpose of promulgation of penal law would be frustrated. If an offence has been established against an accused, he is bound to be punished adequately under the law. [2006 SCM R 1609 (d)]."
17. So far kidnapping of the victim is concerned, it is evident that the innocent minor was first misled on a pretext, to come out and accompany the accused. Particularly in rural culture, people living in the same village/neighbourhood, do trust each other and come out to listen to or even help a neighbour. The victim and the complainant, without any padding, gave a natural account of the occurrence as it happened. Motive of the crime, and ingredients of kidnapping started unfolding as soon as the minor started naturally feeling fear when he was taken quite a distance away to a comparatively isolated place. The minor victim questioned the accused about his purpose of taking him (minor victim) there. It may psychologically be sufficient to frighten a minor with a threat of a genie, a dacoit, a kidnapper, a proclaimed offender, etc., etc. The accused unfolded and added ingredients of force by putting threats of getting him kidnapped by a notorious proclaimed offender and by dragging the minor victim towards the crop field. In this connection section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is reproduced below:-- "12. Kidnapping or abducting in order to subject person to unnatural lust. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping not exceeding thirty stripes."
' In this connection following is relevant:-- Kidnapping and Abduction Difference. In kidnapping a minor person or person of unsound mind is removed from the lawful guardianship and is simply taken away or enticed to go away with the kidnapper. In abduction force, compulsion or deceitful means are used. In kidnapping the consent of the kidnapped is immaterial while in abduction consent condones the offence. In kidnapping intent of the accused is irrelevant, but in abduction, it is the all important question. Kidnapping is not a continuous offence but in abduction whenever an abductee is removed from one place to another it is an offence. [AIR 1943 Lah. 227; 35 Cr.LJ 1386]
18. The plea of learned counsel for the appellant that the prosecution has not established the distance between the house of the victim and the place of occurrence, is not of material significance, as the victim and the complainant, both have very clearly indicated the points and places involved in the occurrence. Mere technical questions of measurement of distances from a rural minor victim cannot be expected when his clear ocular narrative has unshakenly withstood the examination before the learned court. Furthermore, distances are indicated by people in rural areas in terms of field measurements which denote areas but not in terms of linear distances, i,e,, villagers measure distances as indicated by one side of the field. These distances are always approximate, depending on circumstances of each case. In this case the minor victim was taken from a pretext from his house and taken away to a suitably solitary place indicated by the Mobilink Tower and the sugarcane crop field. Therefore, in this case misleading pretext, taking away the minor victim to the place of isolation, and fully covered in terms of height within the sugarcane crop field, are more relevant in circumstances of the offence/occurrence. Furthermore the defence had not put any question to any witness before the learned trial Court regarding the distance between the house of the victim and the place where the occurrence took place.
19. Therefore, case-law (1986 SCM R 1947 Abdul Wadood and another v. The State), cited by the learned counsel for the appellant, is not relevant. Furthermore, no such point/case was made out before the learned trial Court.
20. Point regarding independent witness in addition to the victim and the complainant is more of a general nature as it does not point out to any deficiency in the evidence brought on record by the victim and the complainant, which otherwise could have corroborated a particular aspect or would have reflected on any missing link or could have completed the chain at any point. When minor victim and the complainant could provide confidence-inspiring complete picture from which doubtless conclusion could be drawn, before the trial Court, the demand is not based on any concrete point which could have demanded additional independent witnesses.
21. The MLR and the deposition of the Doctor before the learned trial Court, reproduced above, not only confirms 'penetration', and consequently the criminal act of unnatural lust, but also portrays forceful brutality in the commission of the offence, which does not leave any room for further demand by the defence counsel for finding more marks of violence on the body of the victim, in the circumstances.
22. The assertion of the defence counsel about existence of a dispute regarding cattle business, as a reason for falsely involving the accused in this case, has a double edge, but it is not the case of prosecution.
23. The defence assertion that the complainant and the victim are related inter se and are interested witnesses, has no value at all, as the minor victim is an orphan under care of the complainant who is his uncle. It is but natural for to stand jointly for their case involving personal and family honour, physical integrity, security and sanctity.
24. Complaint/F.I.R. Of daylight occurrence was lodged promptly, the same day. Contents of the complaint/F.I.R. Sound, a natural story, fully corroborated by the victim and the complainant in their statements before the learned trial Court, as confidence-inspiring accounts.
25. The learned trial Court had already taken a lenient view while awarding sentences under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 377, P.P.C.
26. From the facts and circumstances of the case, it is established that the prosecution has proved its case beyond any shadow of doubt and the learned trial Court has rightly convicted and sentenced the appellant. In this view of the matter, Criminal Appeal No,86/L of 2010 filed by Muhammad Aslam, appellant is dismissed and his conviction and sentence awarded to him by the learned trial Court vide judgment dated 5-5-2010 passed by the learned Additional Sessions Judge, Bhalwal in Hudood Case No,53 of 2006 and Hudood Trial No,02 of 2008 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 to twenty-five years' R.I. With fine ofRs,50,000 or in default thereof to further undergo four months' imprisonment, under section 377, P.P.C. To imprisonment for life with fine ofRs,50,000 or in default thereof to further undergo four months' imprisonment and under section 544-A, Cr.P.C. To pay compensation ofRs,1,00,000 to the victim as well as the benefit of section 382-B, Cr.P.C. Extended by the learned trial Court are maintained.
27. The above are the reasons of our short order dated 9-12-2011 announced in the open Court.