' ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 12-12-2011 passed by learned Addl. Sessions Judge/Izafi Zila Qazi-IV, Dir, whereby Ibrahim the appellant, involved in case F.I.R. No, 139 dated 13-7-2008 under sections 377/337-F(i)/367-A, P.P.C. Registered at Police Station Gandigar was convicted under section 377, P.P.C. And sentenced to undergo ten years' R.I. And fine of Rs,20,000, in case of non-payment of fine, he was directed to undergo one year' S.I., under section 367-A, P.P.C. To undergo ten years' R.I. And also to pay Rs,10,000 as fine and in case of nonpayment of fine, he was directed to undergo six months' S.I. And section 337-F(i), P.P.C. To six months' R.I. As Ta'zir along with 10,000 as Daman, with the direction that the appellant be kept in jail till the recovery of amount of Daman, however, benefit of section 382-B, Cr..P.C. Was extended to him.
2. Facts of the case are that complainant Rafi Ullah lodged a report that on 12-7-2008 at 1930 hours he was on the way back to his house from the house of his aunt, when reached Khadijai in the limits of Gandigar, Ibrahim son .Of Akbar Khan and Sajid Ullah son of Sadbar Khan caught hold of him and commitied sodomy upon him. On his hue and cry Rafiq Ullah and Khaista Gul came and the accused on seeing them fled away from the spot. The delay in lodging of report was that there was no male person in his house. The report of complainant was reduced into writing in shape of Murasilla Exh.PA/1, who signed the same as token of its correctness while Rehan Ullah, the brother of complainant, signed the same as its rider.
3. After completion of the investigation, challan was submitted in the Court for trial. During trial one of the accused Sajid Ullah was died and proceedings against him were abated. Learned trial Court, after conclusion of the trial, and hearing the arguments of parties, convicted the present appellant as stated above.
' Learned counsel for the appellant/ convict argued that the judgment of learned trial court is against law and facts which is the result of misappreciation of evidence on record. He argued that there is thirteen hours delay in lodging of report, therefore, the question of deliberation and consultation cannot be ruled out. He argued that the evidence furnished by the complainant as P.W.6 is not in consonance with the other P. Ws. And is full of contradictions. He argued that the eye-witnesses mentioned in the F.I.R. Were abandoned by the prosecution, therefore, the prosecution has withheld its best evidence meaning thereby that the said witnesses were not supporting the version of prosecution. He argued that the judgment of conviction is also not tenable in the eye of law because the appellant has been convicted under section 367-A, P.P.C.
Instead of section 12 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 as the Women Protection Act was not extended to PATA during the days of occurrence. He argued that the prosecution has miserably failed to prove its case against the appellant/convict, therefore, the sentence is liable to be set aside and the appellant/convict deserves acquittal.
' Learned A.A.G. Appearing on behalf of the State and learned counsel for complainant argued that the appellant is directly charged in the promptly lodged F.I.R. For committing sodomy upon him with further submission that the prosecution witnesses were consistent on material particulars and version of the complainant has also been supported by medical as well as circumstantial evidence, therefore, the learned trial Court has rightly convicted the appellant, which calls for no interference. They further argued that at the first stage charge against the accused was framed under section 12 of the Offences of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 377/337-F(i), P.P.C. But later on after recording of evidence the charge framed against the accused were altered and instead of section 12 of the Offence of Zina, the appellant was again charge- sheeted under section 367-A, P.P.C. Instead of section 12 Zina Ordinance, therefore, the conviction can be converted into section 12 of Zina Ordinance as section 367-A, P.P.C., as such, the conviction is based on proper appreciation of evidence on record and call for no interference.
4. Arguments of learned counsel for the parties were heard and record of the case perused.
5. No doubt, there is delay in lodging of the report but the same has reasonably been explained.
The complainant stated in his report that as there was no male person in his house, therefore, the delay in lodging of report was occurred. He in the first line of his cross-examination stated that during days of occurrence he was student of class 4th and his father was in Saudi Arabia in connection with earning his Melihood. He - further stated in his cross-examination that after the occurrence when he came to his house, he narrated the story to his mother and two younger brothers and also informed his elder brother at 10-00 p.m. (night time) who was working at District Dir, however, he reached home at morning time. From the perusal of his statement it is clear that the delay has plausibly been explained even otherwise in such like matters, delay is no ground for creating any doubt regarding the occurrence when otherwise there is sufficient evidence available on the record which established the guilt. Of ,convict-appellant. The, charge levelled against the appellant is of very serious in nature as the complainant-cumvictim, a student of class 4th, was on the way back to his house from the house of his aunt, when he was intercepted by the two accused, forcibly committed sodomy upon him. The prosecution in support of its case produced Dr. Wazir Zada as P.W.10, who fully supported the version of the comp C lainant and confirmed his report marked as Exh.P.W.10/1. The relevant portion of his examination-in-chief are as under:--
(1) Bruises and contusions on the left eye. The left cheek is also swollen. 0/E, vision of the eye (left)remain intact, X-ray of the fact showed no bone fracture and no dislocation.
(2) Skin ruptures on the left knee joint are present at multiple sites.
' Each of these wounds was about 2x2 c.m in size.
(3) Bruises and contusions were present on the front of neck and also on the right cheek.
' Anal Examination.
(1) Multiple scratches on the buttocks and thigh, around the anus,
(2) The skin-fold around the anus became smoothened,
(3) External and mucuosa ruptured/ injured at multiple sites,
(4) The anus was surrounded with sand, dry blood clots and scratches.
(5) Nature of injury was recorded as simple and kind of weapon was recorded as blunt. The doctor declared the same as Sexual assault (intercourse) sodomy.
A swa b from the inside of the anus was taken and sent to FSL and report whereof Exh.PK/1 is in positive.
' The complainant when appeared as P.W.6, categorically explained all the events and stated that the accused-appellant along with the dead accused has forcibly comniitted sodomy with him. The complainant (P.W.6) and the Medical Officer (I.0.) were subjected to lengthy cross-examination by 'the learned defence counsel but nothing damaging aspect was extracted from their mouth. The statement of the victim is reliable and trustworthy and cannot be discredited in any manner whatsoever while the contradictions pointed out by the learned counsel for the appellant would not make the whole case unbelievable.
6. The contradictions referred to by the learned counsel for the appellant are not fatal to the case of the prosecution being minor on all the important issues and facts, particularly, when no enmity was shown between the parties and the statement of complainant was fully supported by the evidence of Medical Officer, Investigating Officer and positive report of FSL. In such like cases, even the solitary testimony of complainant is sufficient for conviction, if it is not a tainted and is corroborated, by medical as well as circumstantial evidence. Reliance in this regard is placed on the cases of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 and Rana Shabaz' Ahmad and 2 others v. The State 2002 SCM R 303 wherein it has been held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence.
6. As a sequel to above discussion, I am of the firm view that prosecution has proved its case against the appellant by the evidence furnished by the prosecution. After having examined the entire material available on record and having considered all aspects-of the present case, I find that no exception could be taken to the finding of guilt of the appellant, recorded by the trial Court.
However, the submission of learned counsel for the appellant that the appellant has been convicted under section 367-A, P.P.C. For ten years and fine of Rs,10,000 which is illegal is correct because during the days of occurrence section 367-A, P.P.C. Was not applicable in the area, for the reason that Protection of Women (Criminal Law Amendment) Act, 2006 was extended to this area in year 2011 whereas the occurrence is that of year 2008, therefore, the conviction and sentence under section 367-A, P.P.C. Is wrong and illegal. So, the impugned judgment of trial Court -to the extent of conviction in section 367-A, P.P.C. Is set aside while the remaining judgment of conviction passed by the learned trial Court is maintained.