' KHALID MAHMOOD, J.---Convict - appellants Bakht Munir son of Yar Muhammad, Iftikhar son of Lal Muhammad and Shah Faisal son of Ghulam Habib were tried under section 377, P.P.C. And on conclusion of trial, vide impugned judgment dated 22-2-2011, they were convicted and sentenced to suffer imprisonment for life with a fine of Rs.1,00,000 each or in default to suffer further two years'
S.I. Each. Benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. Briefly stated facts of the prosecution case are that on 8-1-2010 at Degar Qaza Vela he was present in Battagram Bazar where accused Iftikhar, Shah Faisal and Bakht Munir met him and took him to the shop of Bakht Munir. They closed the door of the shop and committed carnal intercourse with the complainant one by one. After commission of offence, he was turned out of the shop and he met the SHO and reported the matter.
3. After completion of investigation, complete challan was put in Court and trial commenced.
Accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses in order to prove its case. After close of prosecution evidence statements of accused were recorded under section 342, Cr.P.C., who also did not wish to be examined on Oath and to produce evidence in his defence.
4. At the conclusion of trial, after hearing the arguments of learned counsel for the parties, with reference to the material on file, the learned trial Judge convicted and sentenced the accused appellants, as noted above.
5. Learned counsel for appellant contended that prosecution has failed to prove its case against appellants beyond any shadow of doubt. It was argued that alleged recovery of mobile phone is doubtful and no independent witness was associated to witness the recoveries of Mobile and CD. It was argued that it is a case of dishonest investigation and P.Ws. Have contradicted each other on material aspects of the case. It was also argued that learned trial Court has failed to consider the contradictions and improvements made in the statements of P.Ws., during the course of recording of their statements. Learned counsel while concluding his arguments submitted that appellants are entitled to be acquitted by extending benefit of doubt, as a single doubt in the case would be sufficient for the purpose of acquittal.
6. On the contrary, learned State counsel assisted by learned counsel for the complainant opposed the arguments advanced by learned counsel for appellants and contended that medical report fully supported the prosecution version. It was argued that accused were found fit for commission of sexual intercourse and the victim was examined and tear was seen in the anal area. The report of FSL is in affirmative and there was no reason for false implication of the accused. It was concluded that sentence awarded by the trial Court would meet the ends of justice, as prosecution has been able to prove its case against convict appellant beyond any shadow of doubt.
7. Arguments of learned counsel for the parties have been heard at length and record perused.
8. The prosecution has produced nine witnesses in proof of its stance. The star witnesses of the prosecution case are the complainant (P.W.7), Muhammad Riaz, I.O. Of the case (P.W.8) and the doctor (P.W.2). During the course of investigation the I.O. Had recovered semen stained clothes of different kinds from the spot, black trouser of the victim having semen stains and mobile having a video of he present occurrence, which was prepared by the accused during the commission of sodomy. In the light of the evidence and the arguments advanced by the counsel for the parties, the following questions have been formulated for proper appreciation of evidence and the applicability of law in the instant case:--
(1) Whether conviction can be based on the bare statement of complainant?
(2) Whether medical evidence corroborates the prosecution version?
(3) Whether recoveries of pieces of semen stained pieces of clothes confirms the place of occurrence?
(4) Whether FSL report sent after six days of occurrence can be considered as a corroboratory piece of evidence?
(5) What is the impact of video prepared by the appellants regarding commission of offence?
(6) Whether plea raised by the appellants being of same age group and also being first offender for the alleged offence can be treated a mitigating circumstance requiring reduction of sentence?
9. It is an admitted fact that complainant and all the accused are of the same age group ranging from 14 to 21 years of age. The complainant had lodged the report without any delay i.e. Just after the occurrence. He being a minor school going student had informed his grandfather regarding the present occurrence. The recovery of semen stained clothes from the spot confirms the site of occurrence. The mobile which was used for making video of the present occurrence has also been recovered from the pocket of co-accused Iftikhar by the I.O. The doctor while appearing as P.W.2 stated that at 19-20 p.m., on the day of occurrence, he medically examined Niaz Muhammad son of Taj Muhammad aged about 14/15 years and found the following incriminating sign of present occurrence:--
(1) The patient was examined in knee elbow position.
(2) A tear at 3.00 O'Clock was seen. No other sign of physical abuse was found.
(3) Rectal swab was taken sealed and signed and handed over to police officer concerned.
Pajama was taken and sent for chemical examination, handed over to police officer concerned.
10. The four pieces of clothes having semen stains were sent to the FSL for laboratory report on the next day of occurrence vide Exh.P.W.8/3. Though the report received is in positive and counsel for appellants raised serious objections and questioned the very report being received after 5 days of its sending. But we cannot neglect the area where occurrence took place belongs to far flung semi tribal area, hence, keeping in view the backwardness of said area, unexperienced police official(s), the slackness on the part of investigation in the particular situation can be ignored. It transpires from the conduct of investigation that the I.O. According to his ability had investigated the case properly and collected the corroboratory evidence in the shape of recovery of semen stained clothes, Medico-legal Report, FSL report, mobile phone having video of the occurrence and other evidence supporting prosecution without any fault. Though the counsel for he appellants has pointed out certain discrepancies and omissions on the part of the prosecution i.e. Non-taking of swa bs of the appellants and sending the same to FSL for matching with the swabs allegedly taken from the anas or clothes of the victim. The minor age of the complainant and charging the accused without any previous enmity or family dispute is also C sufficient to connect the accused with the commission of crime. The defence has been failed to bring on record any reason for falsely involving the accused in the present case. There is not a single accused to whom enmity or malafidely charging can be alleged rather three charged accused belong to different families and Mohallahs/areas and having no common grievances or enmity with the complainant or his family.
The recovery of video is a strong corroboratory piece of evidence which can no way be attributed to the prosecution for planting or cooking up a case to falsely involve the appellants. The high handedness and the criminal conduct for disgracing the complainant and his family cannot be ignored. No where in our society a person can dare to falsely charge any one for the commission of such like offence because the same is a stigma which cannot be removed during the entire life of the complainant as well as his family. The learned trial Court has not only correctly appreciated the evidence in its true perspective rather on personally checking the video so prepared through modern device had convinced the trial Court that the appellants had committed the offence beyond any shadow of doubt that is why they were awarded the maximum sentence.
11. After thrashing out the entire evidence and giving anxious thought to the arguments advanced by the counsel for the appellants and that of the complainant, we see no room to neglect the conduct of the appellants and shut our eyes from the statement of complainant/victim, which is found direct, straightforward, confidence-inspiring, fully corroborated by the medical evidence, video, FSL report and other evidence produced by the prosecution and the offence being against the moral turpitude and a stigma not only to the family of the victim but is also an alarm to the society, which deserves stern punishment.
12. However, keeping in view the age of appellants, who are ranging from 17 to 21 years of age, being the same group of age, and also being first offenders, which creates mitigating circumstance warranting reduction in the quantum of sentence so awarded by the trial Court. In this respect wisdom can be drawn from the case of "Muhammad Ashraf and 2 others v. The. State" reported as 2004 PCr.LJ. 161 wherein almost in similar circumstances it was held as under:-- "Conviction of accused under S. 377, P.P.C. Was, therefore, maintained---Victim was quite mature seemingly more than 16 years of age---One accused was a young boy of 17/18 years and the other two accused were aged about 23 years each, who were all first offenders---Sentence of accused of 10 years' R.I. Each was reduced to 5 years' R.I. Each in circumstances".
' In the facts and circumstances of the case, it would be appropriate to reduce the sentence from life imprisonment to 10 years' R.I. However, the sentence of fine is maintained. Consequently, this appeal is partially allowed and while maintaining the conviction of each appellant, the sentence is reduced to ten years' R.I. Each from imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to the appellants. The sentence of fine awarded by the trial Court is maintained.
Sentence reduced.