1. ' HABIB-UR-RAHMAN SHAIKH, J.---This Criminal Appeal arising out of the judgment dated 28-2-2012 passed by the learned VIIIth Assistant Sessions Judge, Karachi East in Session Case No.1330 of 2009 in Crime No.386 of 2009, under section 377, P.P.C. At Police Station Aziz Bhatti, Karachi.
2. ' Briefly the facts as per Prosecution case are that on 6-7-2009 at about 1800 hours the Complainant Peer Muhammad appeared at Police Station and narrated that at about 12.00 Noon, he found that Shalwaar of his son aged about 8 years stained with blood and on removing the same blood was oozing from the child's anus. On asking from his son, who found become confused and could not satisfactory explain the same. Thereafter, on the next day i.e. 6-7-2009 at about 5- 00 p.m. The child disclosed that yesterday Yousuf Khan son of Sheraz Khan took him to an open plot inside of which one Room constructed situated at Sindhi Para, Dalmian where the Appellant committed sodomy with his son. Then Complainant informed the Police and Police arrived headed by A.S,-I. Muhammad Bux and others on Official Mobile and apprehended Yousuf Khan (Appellant).
3. On his pointation, he further disclosed that Yousuf Khan (Appellant) had committed sodomy with his son Muhammad timer and action be taken.
4. ' After registration of F.I.R. And completion of all formalities recording of examination of the witnesses as well as examination of the victim and the Accused medically and sent all the material to Examiner/Expert. After that, Police submitted challan before the Court of law. The charge was framed by the learned trial Court on 28-10-2009. After that, Prosecution examined as many as .10 witnesses to prove its case. Thereafter, Prosecution closed its side and statement under section 342, Cr.P.C. Of the appellant was recorded by the Court and pronounced judgment and the learned trial Court awarded sentence in the offence under section 377, P.P.C. To suffer RI for seven years and fine of Rs.50,000. In case of failure of payment of fine, he will further suffer S.I. For one month more. Benefit of section 382-B, Cr.P.C. Has also been extended to the accused. Thereafter, the appellant preferred this Criminal Appeal, ' Learned counsel for the appellant has contended that the learned trial Court has erred in law, as in spite of section 377, P.P.C., the learned trial Court mentioned section 392/34, P.P.C. In the charge, He has further contended that two witnesses namely PC, Muhammad Yaseen and PC. Sher Muhammad were declared hostile by the Prosecution and cross-examined by the Prosecution itself and they exonerated the appellant as according to them the memo of arrest was not prepared in their presence. He has further contended that the complainant In his deposition contradicted himself that on 5.7-2009 he was present at his shop when at about 12.00 Noon his son came to him at the shop, who was looking frightened and was weeping. He saw his Shalwaar blood-stained. On his query, he did not disclose anything to the complainant. Thereafter, he took him to the residence after molding his son disclosed that the appellant had committed adultery with him. Thereafter, he reported the matter to Police and Police Officer in Police Mobile came there.
5. After hearing the narration of incident Police took him and his son to Police Station where F.I.R. Was registered. This piece of evidence shows that on 5-7-2009 all facts have been in the knowledge of the complainant on the same day but in the F.I.R. He said that on the next day son of the complainant/victim has disclosed the real facts to him and he went to Police Station and registered F.I.R. Learned counsel for the appellant has next argued that other witnesses also contradicted to each other. He has also pointed out that the statement of P.W.4 Muhammad Saleem, who disclosed that he was also present at the time when the son of the complainant arrived at his shop, but the complainant did not disclose this fact, which was in the F.I.R. He also told that Police arrived on the next day and arrested the appellant in his presence, but both the witnesses PC Muhammad Yaseen and PC. Sher Muhammad, who had disclosed that on 5-7-2009 in their presence the appellant was arrested but memo of arrest was not written there. He has further contended that as per Medical Certificate issued by Dr. Noor Ahmed, who disclosed that the age of the appellant is about 16 years, but the learned trial Court has not tried the appellant under the provisions laid down under the Juvenile Justice System Ordinance, 2000 and ignored the legal aspects. Even though in the statement under section 342, Cr.P.C. Recorded by the Court, the appellant disclosed his age as 18 years, which shows that at the time of recording of statement he was 18 years and at the time of committing offence he was below age of 18 years. Even though, his case comes within the ambit of the Juvenile Justice System Ordinance, 2000. He has further contended that learned trial Court has not applied his judicious mind by awarding sentence to an innocent boy. Neither the Chemical Examiner's Report has been produced by the prosecution nor relied upon by the prosecution itself. The record further reveals that the learned Magistrate has recorded the statement of the victim, but in the statement there was no formalities laid down by the learned Magistrate to record the statement of minor boy and straightaway he recorded the statement of minor boy as routine, for which he committed illegality, which was also not considered by the learned trial Court as well as learned appellate Court. At the end, learned counsel for the appellant prays that the judgment passed by the learned appellate Court as well as the learned trial Court be set aside and the appellant may be acquitted in the interest of justice.
6. In support of his case, learned counsel for the appellant has relied upon the case of Muhammad Afzal v. The State (2005 PCr.LJ 74), Rafique Ahmed v. The State (2005 PCr.LJ 193), Abdul Khattab v.
7. The State (2003 YLR 535), Amjad Ali v. The State (1985 PCr.LJ 428), Allah Warayo v. The State (1968 PCr.LJ 466), Bacho alias Abdul Jabbar v. The State (1981 PCr.LJ 299), Naseer Ahmed v. The State (2004 PCr.LJ 1769), Muhammad Haneef v. The State (2002 PCr.LJ 1235), Jehangir v. The State (2011 PCr.LJ 960), Moulvi Noor Muhammad v. The State (2000 PCr.LJ 1583), Ghulam Raza v. The State (203 MLD 1924) and Afsar Zamin v. The State (PLD 2002 Karachi 18).
8. ' On the other hand, Ms. Seema Zaidi, learned A.P.-G. Has vehemently opposed this Criminal Appeal and has contended that the name of the appellant is transpired in the F.I.R. And specific role has been assigned to him by the complainant as well as the victim in the F.I.R., in the 161, Cr.P.C.
9. Statement and 164, Cr.P.C. Statement. The Prosecution witnesses have fully supported the Prosecution case and the learned trial Court has correctly passed the judgment and awarded the sentence to the appellant. She prays for maintaining the sentence as per judgment in the interest of justice.
10. ' I have heard the learned counsel for the respective parties and perused the entire material available on record with their assistance.
11. ' From perusal of the record, it reveals that the F.I.R. Was lodged with the delay of about one day, which has not been plausibly explained by the complainant and was simply saying that his son has not disclosed anything to him on the first clay and on the next day his son disclosed the real facts to him. Thereafter, he appeared at Police Station and lodged the F.I.R. On 6-7-2009 at about 1800 hours. Moreover, the record further reveals that the appellant was arrested prior to lodging of F.I.R. And the F.I.R. .Was lodged on the next day, which fact was cleared after examination of P. Ws. 1 and 2, who disclosed that on 5-7-2009 the appellant was apprehended by Police in their presence along with complainant and victim. It further reveals from the record that incident has taken place at about 12.00 Noon on 5-7-2009, when victim in his 164, Cr.P.C. Statement disclosed that incident has taken place at 10-30 a.m. Contention of learned counsel for the appellant is that there are major contradictions in between the prosecution witnesses. The complainant narrated that he was sitting in the shop when his son/victim came there, but not disclosed the real facts. He brought him to the house, where he took the name of the appellant for committing sodomy, but P.W.
12. Muhammad Saleem in his deposition deposed that he was also present at the time when son/victim of the complainant came at the shop and in their presence he disclosed about sodomy committed with him and taking the name of the appellant Yousuf Khan. Apart from that, Dr. Examined the appellant and disclosed that the age of the appellant is 16 years. No doubt, no application was moved from the side of the appellant, but it is the duty of the learned trial Court that when the Court saw that the accused and the record is available with him the learned trial Court is bound to refer the matter to the Juvenile Court according to the Juvenile Justice System Ordinance, 2000, but the learned trial Court has failed to do so. Furthermore, when the Statement under section 342, Cr.P.C. Of the appellant was recorded, at that time the appellant/accused disclosed his age as 18 years. It also appears that at the time of incident he was below 18 years, but the learned trial Court did not give facility to the appellant/accused. As per decision and the principle laid down by the honourable Apex Court, if the accused is a child, then it is the duty of the prosecution when it produced documents through its witnesses, the prosecution should also disclose the real facts, but here prosecution has failed to do so. P.W. Dr. Noor Ahmed in his deposition clearly deposed that on 7-7-2009 he was posted at Civil Hospital, Karachi as MLO, S.I.
13. Tariq All brought one Yousuf Khan son of Sheraz Khan aged about 16 years for Potency Examination.
14. Even though, prosecution has not pointed out to the Court that the appellant/accused is below 18 years and his trial be held according to the Juvenile Justice System Ordinance, 2000.
15. ' In the case of Bacho alias Abdul Jabbar v. The State (1981 PCr.LJ 299), it has been held that:- "Juvenile Offender---Sentence, legality of Accused under 16 years of age when proceedings on charge of murder initiated against him---Accused, held, a "child" in terms of S. 5 of Sindh. Children Act and sentence of imprisonment for life awarded to such accused illegal Case, however, referred to Provincial Government for taking appropriate action under S. 68 (2) of Act - [Sentence - Juvenile offender]."
16. ' In the case of Amjad Ali v. The State (1985 PCr.LI 428), it has been held that:-- "Sindh Children Act (XIV '1955) - 55,5 & 63 (1), (2)---Penal Code (XLV of 1860), S. 302---Sentence, legality of-Accused a "child" within meaning of S.5 of Sindh Children Act, 'sentenced to death---Sentence held, awarded in violation of subsection (1) of section 68 of Act--Sentence set aside, and case referred to Provincial Government for appropriate orders in terms of subsection (2) of S. 68 of Act-- (Sentence)."
17. ' In the case of Naseer Ahmed V. The State (2004 PCr.LJ 1769), it has been held that:-- "S.
377. Chemical Examiner's report in a sodomy case that semen's were found on swabs taken after four days of commission of offence of sodomy would not be reliable as it is not possible that one can retain semen after passing stool and washing of body."
18. ' Due to absence of report from the examiner analysis, the victim was not examined by the learned trial Court and major contradictions and the illegality and irregularity by the learned Lower Court appeared in the judgment (impugned herein) amounts to non-reading and misreading of the facts. Thus, there is no credential evidence on record to connect the present appellant with the commission of crime, therefore, the appellant is entitled to be acquittal on the basis of evidence placed on record.
19. ' Consequently, conviction and sentence awarded to the appellant is hereby set aside. The appellant is accordingly acquitted from the charges in this case. The appellant shall be released forthwith from this case if not required in any other case,