Ch. Muhammad Ibrahim Zia, J.--The captioned appeal has been filed against the judgment of Shariat Court dated 9.2.2010 whereby criminal appeal filed by the convict-respondents, has been partly accepted.
2. Brief facts forming the back ground of this appeal are that a case for the offences under Sections 342, 343, 377, APC and 12, ZHA, was registered against the convict-respondents at Police Station Pallandri, on the report of victim. According to FIR, on 28.10.2001, at about 5:15 p.m., the complainant was coming back to home from the School. As he reached in the "Sair Jungle", Shahbaz S/O Shahpal, Sarfaraz alias Sufi S/O Muhammad Din, Rafaqat Hussain alias Billa S/O Muhammad Hussain Mehboob alias Muni S/O . Muhammad Ramzan alias Dhalla, Naveed Hussain S/O Kabir Hussain, who were way laying, caught hold of the victim. Accused, Shahbaz Ahmed, took off the trousers of victim and committed sodomy with the victim. The other accused persons, namely, Rafaqat Hussain, Sarfaraz and Mehboob also committed sodomy with the complainant. After commission of the offence, the victim, was brought to an "Ara Machine" and the convict-persons locked him in a room. Shahbaz, once again committed sodomy in the room with the victim and threatened him not to tell any one about the occurrence and thereafter, he was set free. The complainant told Ishtiaq Hussain 5/0 Faiz Muhammad and Zakir Hussain S/O Noor Muhammad Shop-keeper about the occurrence. The convict reported about the occurrence at Police Station Pallandri.
3. After registration of case, the convict-respondents were apprehended by the police and after completion of investigation, the challan under Sections 342, 343, 377, APC and 12 ZHA was submitted against the accused in the District Criminal Court Sudhnooti. The accused-respondents, during their examination under Section 342 Cr.P.C., pleaded not guilty and claimed for the trial. The trial Court directed the prosecution to produce witnesses in support of its case.
4. Rafaqat Hussain and Mehboob Hussain accused, absconded and proceedings under Section 512, Cr.P.C., were initiated against them vide order of the trial Court dated 29.9.2005.
5. After completion of the prosecution evidence, an opportunity was provided to the convict- respondents under Section 342, Cr.P.C. to furnish their explanation about the evidence and all the circumstances appearing against them. They pleaded that they have been falsely roped in the case on account of enmity and false evidence was produced against them. The District Court of Criminal Jurisdiction Sudhnooti sentenced Shahbaz S/0 Shahpal and Sarfaraz S/0 Din Muhammad under Section 342, APC to undergo 1 year R.I, each, under Section 377 APC, 10 years R.I along with fine of Rs, 50 thousand each and under Section 12 ZHA, 25 years, rigorous imprisonment along with fine of Rs, 50,000/- (fifty thousand), and thirty stripes, each. In case of non-payment of fine, they were to undergo for a further period of 6 months, S.I. each. The aforesaid judgment of the District Court of Criminal Jurisdiction Sudhnooti dated 17.11.2009 was challenged by the convict- respondents, in the Shariat Court on 20.1.2009. The learned Shariat Court, after necessary proceedings, partly accepted the appeal filed by the convict-respondents and awarded both Shahbaz and Sarfaraz a sentence of 3 years R.I, each along with fine of Rs, 50 thousand, each under Section 377, APC and in default, R.I for six months and acquitted them of the charge under Section 342, APC and 12, ZHA. It is further observed by Shariat Court that the fine realized from both the convict-respondents be paid as compensation to the complainant (victim). The complainant, feeling dissatisfied from the judgment of the Shariat Court dated 9.2.2010, challenged the same before this Court through the instant appeal.
6.' Mr. Asghar Ali Malik Advocate, the learned counsel for the complainant-appellant, after brief statement of facts, strongly challenged the impugned judgment on the ground that the learned Shariat Court has illegally reduced the punishment awarded by the trial Court under Section 377, APC despite the fact that the prosecution has proved the commission of offence beyond any shadow of doubt. He further submitted that it is a heinous offence. The convict-respondents committed gang sodomy with the victim and in such like cases the Courts have even convicted and maintained the sentence on the solitary statement of the victim. He further submitted that both the lower Courts have concurrently recorded findings. The convict-respondents have not filed appeal, thus, the concurrent findings recorded by the Courts below on the question of facts of commission of offence, attained finality. According to his version, the prosecution has also succeeded in proving the commission of offence under Section 342, APC and Section 12, ZHA. The learned Shariat Court has wrongly acquitted the accused from the charge under Section 12, ZHA and 342, APC. Thus, the impugned judgment of the Shariat Court requires modification and the conviction order passed by the trial Court is according to law and principles of administration of criminal justice which may be restored.
7. Ch. Shoukat Aziz, Advocate, the learned Additional Advocate-General while concurring the arguments of the learned counsel for the complainant, further submitted that the accused are nominated in the FIR. The statement of victim is confidence inspiring and believed by both the Courts below. According to the facts of the case, sole statement of the victim is sufficient to prove the commission of alleged offences. He further submitted that the prosecution has also produced corroborative circumstantial evidence in shape of medico-legal report and seizure of other incriminating articles. He further submitted that the prosecution has succeeded in establishing the ingredients to constitute the commission of offence under Section 12 ZHA against the accused persons and the impugned judgment of the Shariat Court is not consistent with the record. The learned Shariat Court has oversighted the cogent legal evidence produced by the prosecution, thus, the impugned order is not maintainable. The conviction order passed by the trial Court meets the ends of justice thus, the same may be restored.
8. Sardar Abdul Hamid Khan Advocate, the learned counsel for the convict-respondents, while opposing the arguments of the learned counsel for complainant-appellant, submitted that the prosecution has failed to prove its case beyond the shadow of doubt. The prosecution has brought on record, 2 medical reports, Exh. "PI" and "PJ" regarding one and the same person. The statement of the victim recorded by the Court when examined minutely, it creates serious doubts upon the prosecution version and makes the registration of case against the convict-respondents, as fake proceedings. The prosecution has failed to produce the witnesses whose statements under Section 164, Cr.P.C. were recorded, which also casts serious doubt upon the prosecution story. He further submitted that the respondents have not filed appeal but this Court is competent to meet the ends of justice to re-appraise the evidence and pass appropriate orders of acquittal of the convict- respondents. He further submitted that the respondents have already served out the punishment imposed by the Court. Therefore, this appeal has no merits, thus, the same may be dismissed.
9. We have paid our utmost attention to the respective arguments of the learned counsel for the parties and gone through the record. Admittedly, the convict-respondents have not filed appeal against the impugned order of the Shariat Court. The Courts below have recorded findings against the convict-respondents after appreciation of the prosecution evidence. There are concurrent findings of facts regarding commission of the offence of sodomy. The learned Shariat Court has only differed regarding quantum of punishment and the application of some penal provisions.
10.In this perspective, only two points require deliberation by this Court. One is that whether according to prosecution story, ingredients to constitute the offence under Section 12, ZHA and 342, APC has been proved or not and the other is; whether reduction of punishment by the Shariat Court is justified or not. For clarity, Section 12, ZHA is reproduced as under:-- "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 or 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. "
The terms kidnapping and abduction are defined in Sections 359 and 362, APC. In the peculiar facts of this case, Section 362 of APC which defines abduction is relevant which reads as under:
362. Abduction.--Whoever, by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
11.In this case, the prosecution has alleged abduction of the victim who states that he was apprehended on the road by the accused and thereafter, was taken to forest where they committed sodomy with him. After commission of gang sodomy he was forced to go to sawmill, 'Ara Machinehe". He was kept in the illegal confinement for whole night and Shahbaz accused, once again sodomized him. Both the Courts have, while relying on the prosecution's evidence, convicted the respondents for commission of alleged offence under Section 377, APC.
12.According to the peculiar facts of this case, the availability of any other direct ocular evidence is not possible. The fundamental and important evidence is the statement of complainant-victim.
Both the Courts have while awarding punishment, relied upon this statement. The learned Judge, Shariat Court has observed in the impugned judgment that the provisions of Section 12, ZHA, are not attracted because "it is borne out from the evidence that the removal of the victim, Istikhar Hussain, was only a few meter and that its object and purpose was to commit sodomy for quenching their lust and not for any other purpose".
13.It appears that the learned Judge Shariat Court, over sighted the other part of the story according to which the victim was forcefully removed from the forest to "Ara Machine" (sawmill), where he was detained for whole night. The act of sodomy was once again repeated there. Thus, according to prosecution story and evidence brought on record which has been relied upon by the Shariat Court for upholding the conviction under Section 377, APC, at the same time also proves that the victim was forced to go from the forest to Sawmill, "Ara Machine". Thus, the removal of victim, followed by the act of sodomy, clearly proves the abduction for sodomy. In presence of this evidence, we are unable to agree with the conclusion drawn by the Shariat Court that the provisions of Section 12 ZHA, are not attracted. In our considered opinion, according to peculiar facts of this case, the provisions are fully attracted.
14. We have hereinabove, reproduced the statutory provisions of Section 12, ZHA and for further elaboration, Section 362 of APC, to clarify that what constitutes the abduction and when the abduction is for the purpose of an unnatural offence, then the provision of Section 12, ZHA comes in operation. In the peculiar facts of this case, when on the touch stone of these provisions, the prosecution case is tested in the light of the produced evidence, in our mind, abduction for aft unnatural offence stands proved.
In case of Amjad Tubrez vs. The State, reported as [PLD 1982 FSC 174], on almost identical facts, the provisions of Section 12, ZHA, were applied. According to the facts of this case, the victim was returning to his home when the appellant induced him to go with him to his house and subjected him to sodomy. The trial Court as well as Federal Shariat Court, in the light of the stated facts, convicted the accused under Section 12, ZHA, however, the trial Court omitted to impose conviction to stripes which was removed by the Federal Shariat Court in the following terms: "10. There is another error which had been committed in regard to the sentence by the learned Sessions Judge, Section 12 which has rightly been held applicable to the present case provides not only for punishment of imprisonment and fine but also punishment of whipping. It provides that the offender shall be punished with death or rigorous imprisonment for a term which may extend to 25 years and shall also be liable to fine, and, if the punishment be one of imprisonment (as distinguished from death) as it is in the present case, shall also be awarded the punishment of whipping not exceeding 30 stripes. In order to correct this error I may reduce the sentence of imprisonment under Section 12 to six years and award the sentence of 30 stripes in addition. The appellant is thus sentenced to six years R.I., 30 stripes and Rs, 500/- as fine or in default one year R.I., in addition to the sentence under Sections 377/511, P.P.C. passed by the learned Sessions Judge.
The sentences shall, however, run concurrently. The sentence of stripes will be carried out in a public place in city where the appellant is imprisoned."
The same like view has been taken in the case titled Abdul Waheed vs. The State [NLR 1984 SD 400], on the oral testimony of the victim, the accused was convicted under Section 12, ZHA.
In a case titled Nasrullah Khan vs. State, reported as [1985 P.Cr.L.J. 683], the accused was also convicted under Section 12, ZHA.
15.The learned single Judge Shariat Court also set-aside the conviction order of the trial Court for the offence under Section 12 ZHA, on the sole strength of the cases titled Shams Saeed Ahmed Khan v. Shafaullah & others, reported as [1985 SCM R 1822] and Kashif Nadeem has Pappi v. The State, reported as [1992 P.Cr.L.J. 1799], whereas the acts of the referred cases are distinguishable.
Hence, in our opinion, the principle of law laid down in the referred judgment is not fully applicable to the instant case.
16.Similarly, the confinement of the victim for whole night also fully established the commission of offence under the provision of Section 342, APC. The learned Shariat Court has on one hand, maintained conviction under Section 377, APC on the strength of the prosecution evidence which also clearly proves the confinement of the victim in the 'Ara Machine" Sawmill, for whole night and it is very strange that the learned Shariat Court on the other hand, drawn the conclusion that the prosecution has badly failed to prove the offence under Section 342, APC. The conclusion drawn by the learned Shariat Court appears to be hypothetical and without deeply diving into evidence for sifting the grains from chuff.
17.The victim has been subjected to an unprecedented long cross-examination but this practice remained fruitless because defence has failed to make out any dent in the prosecution story.
Rather some aspects of the matter have been further clarified in cross-examination which have strengthened the prosecution version. For example, in reply to the suggestion of the accused, the victim deposed that:-- {{URUD TEXT}} Same like, while replying to another suggestion, he further .deposed that:-- {{URUD TEXT}} In such like situation, the deposition is treated as trustworthy and confidence inspiring. Our this view finds support from the case titled Shakeel & 5 others vs. The State, reported as [PLD 2010 SC 47], wherein following observation has been made:-- Insofar as the statement of Mst. Asia Bibi (P.W.1/Prosecutrix) is concerned, that has rightly been taken into consideration by the learned trial and appellate Courts being free from any serious contradiction or dishonest exaggeration. It is worth mentioning that she was subjected to a lengthy cross-examination but in spite of various searching questions, nothing beneficial could be extracted. There is no reason to disbelieve Mst. Asia Bibi (P.W.1/prosecutrix) and conviction could have awarded on her solitary statement. In this regard we are fortified by the dictum laid down in Shahzad Alias Shadoo & others v. State, 2002 SCM R 1009; Ramzan Ali vs. State, PLD 1967 SC 545: Ashraf vs. Crown, PLD 1956 FC 86; Ghulam Sarwar vs. State, PLD 1984 SC 218; Haji Ahmed vs. State, 1975 SCM R 69: Shahid Malik vs. State, 1984 SCMR 908; Ehsan Begum vs. State, PLD 1983 FSC 204 and M. Akram vs. State, PLD 1989 SC 742.
18. The standard of proof in every case is to be considered in the light of the case story. Ordinarily, in rape and sodomy cases, except the statement of victim, no other direct evidence is possible.
While considering this aspect, the Courts always attached great sanctity to the solitary testimony of the victim and deem it sufficient for passing the conviction order. The Federal Shariat Court, in a case titled Saleem Khan & others vs. State & others, reported as [PLJ 2001 FSC 46], has enunciated the following principle of law: "... In cases of Zina and sodomy, there are generally hardly any witnesses other than the victim, as it is very rare that such offence takes place in view of others or at public place. That is why, the superior Courts in this country have attached great sanctity to the statement of the victim and it has been repeatedly laid down that sole testimony of the victim would be sufficient to base conviction thereon if it inspires confidence."
The same principle has been enunciated in another case, titled Mudassir Hussain vs. The State, [NLR 2005 SD 827], that the solitary statement of victim if found trustworthy, reliable and confidence inspiring is sufficient for maintaining the punishment. This, principle has also been enunciated by the apex Court of Pakistan in a case titled Mst. Nasreen vs. Fayyaz Khan & another, reported as [PLD 1991 SC 412].
19. In such like cases, another very important aspect which is also to be considered is that false implication is not possible because no one would like to level such an allegation to falsely implicate any other at the cost of his own ignominy and injury to his reputation and dignity besides making himself object of ridicule. Our this view finds support from the case titled Nasrullah Khan us. The State, reported as [1985 P.Cr.L.J. 683], wherein it is observed as under:-- "10. Besides no reasons whatsoever have been stated for the victim a young student of college agreeing to implicate them falsely at the cost of his own ignominy and injury to his reputation. The preferring of the charges against appellants involve injury to the male ego and dignity of the victim beside making him the object of ridicule and pity."
20.The counsel for the accused-respondents has raised main objection regarding medical report that there are two medical reports which makes the matter doubtful. Furthermore, the semen was not found on the swa bs of the victim. Thus, this circumstantial evidence. negates the prosecution story. It appears that these arguments are result of misunderstanding and misconception of the facts. The Doctor has categorically explained the reason for making two reports. He states that the Exh. "P/I" is the provisional report whereas the report Exh. 'P/J" is final. He categorically stated that the act of sodomy has been committed with the victim.
21. So far the question of absence of semens on the swabs taken for medical examination is concerned, it has also been explained that the victim stated that before the medical examination he has passed the stool twice and also washed the anus. Thus, it is quite natural that if stool is passed, any material like semen may be flashed out and in such case, the retention of semens with the anus canal may not be possible. It appears that the learned counsel for the convict- respondents is impressed from the opinion of the Courts formed in zina cases whereas there is a lot of difference in formation, mechanism and capability of anus and vagina in retention of semens. The retention of semens without flashing out in vagina for a specified period is natural requirement for inception. Therefore, in our considered view these objections of the counsel for the respondent are not worth consideration and do not cast on adverse affect upon the prosecution story.
In the case titled Abdul Rehman v. Ali Sher & others; reported as [2000 P.Cr.LJ 33], while meeting the same like objection, the Court observed as following: "6... As regards the opinion of the chemical examiner suffice it to say that it is not a sine qua non for the success of cases the instant one that the prosecution evidence should be supported by the Report of the Chemical Examiner. The report, in the instant case, is negative because after the occurrence and before the medical examination the victim had passed stools. Hence, it is not fatal for the prosecution case."
22. Another objection of the defense counsel that the offence under Section 12, ZHA, is not established as the police has not mentioned the sawmill 'Am Machine" in the site-plan, also appears to be baseless. The victim has categorically deposed in examination-in-chief that he was abducted and taken to sawmill 'Ara Machine" and confined there for whole night and the act of sodomy was also repeated. The defense has also got explained further in cross-examination wherein the victim stated categorically that he has pointed out the sawmill, 'Ara Machine" and also visited the same along with police, thus, it is established that the victim has brought into the notice of the police, however, if there is any lapse on the part of the police, the same cannot be treated as fatal for the prosecution story.
In another case titled Mudassir Hussain vs. State, reported as [NLR 2005 SD 827], the Shariat Court, while discussing lapses or lacking the grouping test held that the same was not fatal for the prosecution case, therefore, such like lapses cannot affect the prosecution case.
23. Both the Courts below found the prosecution case proved against the convict-accused for commission of sodomy with the victim. The convict has not filed the cross-appeal. Thus, they having admitted the concurrent findings of the Courts, regarding commission of the act of sodomy. The learned Shariat Court has reduced the punishment of the convicts from 10 years and converted into 3 years imprisonment on the sole ground of being young and first offenders. In the peculiar facts of this case, we are unable to agree with the opinion of the learned Judge Shariat Court. No doubt, young age can be one of the considerations for lesser punishment but same is not a sole factor in this case. The convict along with absconding accused, have been found involved in commission of the shameful act of sodomy and it has not been done only once, thereafter, the victim has been taken forcefully in issuing confinement for whole night and the shameful act has also been repeated by one Shahbaz, accused. This conduct of accused party, speaks of their being desperate and hardened criminal mentality, therefore, in our view, they do not deserve the concession of lesser punishment.
For the above stated parsons, we are constrained to accept this appeal and while setting aside the impugned judgment of the Shariat Court, the conviction order passed by the learned trial Court is restored with the modification that the 25 years R.I, awarded under Section 12, ZHA by the District Criminal Court is reduced to 10 years Rigorous Imprisonment.