' AGHA RAFIQ AHMED KHAN, C.J.---Muhammad Imran, appellant through the instant appeal has challenged the judgment dated 27-4-2009 delivered by the learned Additional Sessions Judge, Faisalabad, whereby he has convicted the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to undergo five years' rigorous imprisonment with payment of Rs.50,000 as fine or in default thereof to further undergo three months' simple imprisonment. He has further convicted the appellant under section 377 P.P.C. And sentenced to undergo five years' rigorous imprisonment with fine of Rs.50,000, or in default thereof to further undergo three months' simple imprisonment. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C., extended to the appellant.
2. The prosecution case in brief is that complainant Muhammad Akram (P.W.6) submitted complaint Ex. PC before the S.H.O. Police Station Batala Colony, wherein he alleged that on 15-9- 2006 at about 9-00 p.m. His son Muhammad Ijaz victim (P.W.7) aged about 12 years went to his work in the house of Abid accused where Abid and an unknown person committed sodomy with him and threatened him not to disclose the occurrence to any one. He returned to the complainant and narrated the occurrence in the presence Muhammad Ashraf brother of the complainant. They went to the shop of the accused and tried to catch hold of him but after closing his shop, he fled away from the place of incident. Thereafter he submitted the complaint (Exh.PC), on the basis of which the present case, vide F.I.R. (Exh.PC/1) was registered against him.
3. Police investigation ensued as a consequence of registration of crime report. Muhammad Hussain Sub-Inspector P.W.9 undertook the investigation. He inspected the place of incident, prepared site plan (Exh.PE), recorded statements of the P.Ws. Under section 161 Cr.P.C. And got the victim medically examined. He arrested accused Muhammad Imran on 21-9- 2006, got him medically examined and sent him to judicial lock up. During investigation he found accused Abid Ali innocent and his investigation was verified by Incharge Investigation and DIG Investigation as well. After completion of the investigation, the S.H.O. Submitted report under section 173, Cr.P.C. Before the court on 25-9-2006 requiring the accused to face trial.
4. The learned trial Court framed charge against both the accused on 15-1-2007 under section 12 of the Ordinance and under section 377, P.P.C. The accused pleaded not guilty and claimed trial.
5. The prosecution produced ten witnesses to prove its case. The gist of their depositions is as follows:--
(i) P.W.1 Dr.Sirajuddin had medically examined Ejaz victim and observed as under:- "Young boy was brought by the police for sodomy examination. The history of act of sodomy on 15- 9-2006 at 9-00 p.m.. Boy was well-oriented time and space. Boy was examined in knee elbow position. No staining on clothes. No history of washing of clothes. Anus sphincter was normal. No abrasion or laceration at anal canal. No pain on walking. Three swabs were taken, sealed and handed over to police for communication to Chemical Examiner Lahore for detection of semen".
' The doctor after perusing the report of Chemical Examiner opined that sodomy was committed with the victim.
(ii) P.W.2 Dr. Muhammad Anwar Solahri had medically examined Muhammad Imran, appellant/ accused and found him sexually potent.
' (iii) P.W.3 Nazir Ahmad is retired Sub-Inspector. He registered the case vide F.I.R. (Exh.PC/1) on the receipt of complaint Exh.PC.
(iv) P.W.4 Muhammad Hanif Moharrer/Head Constable stated that on 16-9-2006 Muhammad Hussain, Sub-Inspector/ Investigation Officer handed over to him a sealed phial containing swabs alongwith sealed envelope which he kept in Malkhana for safe custody and he - handed over the same to Muhammad Hussain S.H.O. On 28-9-2006 for delivery to the office of Chemical Examiner, Lahore.
(v) P.W.5 Allah Ditta Head Constable had taken Muhammad Ijaz to DHQ Hospital Faisalabad for medical examination. After medical examination the doctor handed over to him one sealed phial and one sealed envelope, which he produced before the Investigation Officer who took the same into possession through recovery memo Exh. PD .
(vi) Muhammad Akram complainant appeared as P.W.6 and endorsed the contents of his complaint Exh.PC.
(vii) P.W.7 Ijaz victim stated that after completing his work he was returning to his home, when he was returning to his home after completing his work, when at about 9-00 p.m. He was intercepted by Muhammad Imran, appellant/ accused in front of house of Abid who took him inside the house and after removing his pent committed sodomy with him. On his hue and cry two persons attracted to the place of incident and on seeing them, the accused fled away.
(viii) P.W.8 Liaqat Ali stated that at about 9-00/9-30 p.m. He along with Muhammad Saleem was passing through -street No.11. They heard hue and cry from the Baitak of Abid. Meanwhile they saw one boy running away whose name was disclosed as Imran accused after one day in the police station. Another boy whose pent was removed informed them that the boy, who had run away, had committed sodomy with him.
(ix) P.W.9 Muhammad Hussain, Sub-Inspector had undertaken investigation whose detail has already been mentioned in Paragraph No.3 of this judgment.
(x) P.W.10 Shahid Anwar Sub-. Inspector stated that on 16-9-2006 he was on patrolling duty at Goal Waris Pura where Muhammad Akram complainant met him and submitted complaint (Exh.PC) before him, which he sent to Police Station Batala Colony through Muhammad Munir Constable for registration of the case.
6. The prosecution closed its case on 29-1-2008. Thereafter on 16-9-2008 the learned trial Court recorded statement of the accused under section 342 Cr.P.C. The appellant/accused denied the allegations levelled against him. In reply to question "Why this case against you and why the P.Ws.
Have deposed against you?" the appellant accused deposed as under:-- "This is an admitted fact that I am not nominated in this F.I.R. It is totally afterthought story and even the P.W.7 victim Ijaz stated in this honourable court that it was Friday on the day of occurrence, I have been falsely involved and implicated in this case with connivance of Abid accused, Ijaz victim and police I have made a scapegoat in this case. No one has seen the occurrence, even the P.W.6 Akram father of so-called aggrieved stated on oath in this court during cross-examination that whatever told by his son Ijaz he got recorded the statement as Exh.PC. Although that the opinion of police is not binding on this court but there is difference between opinion and conclusion.
Furthermore the conclusion of DIG Police that Imran accused is innocent in this case. This is also admitted fact that both the parties joined investigation before the DIG".
7. The accused produced Rizwanul Haq Inspector as DW.1 who stated that on 21-12-2006 the investigation of this case was entrusted to him and he after examining both the parties and visiting the place of occurrence found Muhammad Imran accused innocent.
8. The learned trial Court after observing the codal formalities of the trial recorded conviction of the appellant and awarded sentence under section 12 of the said Ordinance and under section 377, P.P.C., as indicated in the opening para of this judgment.
9. I have gone through the case file, perused the evidence of the prosecution witnesses and scanned the relevant portions of the impugned judgment.
10, In the F.I.R., which was lodged after about five and a half hour of the alleged incident, complainant Muhammad Akram stated that at about 9-00 p.m. His son Muhammad Ijaz had gone to accused Abid for work where Abid and one unknown person had committed sodomy with him.
After few days, in his additional statement, he involved the present appellant also being the culprit who had committed sodomy upon his son. In the F.I.R., neither the name of the appellant mentioned nor his features are given. According to victim Ijaz, he informed his father about the incident. In the F.I.R., accused Abid has been shown as the main culprit but he was exonerated afterwards and was acquitted from the case. Since the name of the present appellant did not appear in the F.I.R., therefore, it was legally necessary to have conducted his identification parade through the victim and two other witnesses namely Liaqat Ali and Muhammad Saleem who had seen him running in the. Street. But there is no explanation to this effect as to why identification parade was not held. Both the witnesses are related to the complainant and are chance witnesses as they are not resident of that . Area. No person from the vicinity has been made witness, of the incident. According to doctor Siraj-ud-din, anus sphincter of the victim was normal and no abrasion or laceration in the anal canal was pretent and there was no pain in walking.
11. Appellant in his defence examined Rizwanul Haq, Inspector had investigated the case as at that time he was 'posted in Regional Investigation -Branch, Faisalabad. He has examined both the parties and had visited the place of occurrence, and during investigation he found Muhammad Imran, accused as innocent.
12. In view of the above discussed medical and ocular evidence coupled smith the above legal position, I have come to this conclusion that the prosecution had not proved the charge against the appellant beyond any reasonable doubt; therefore, he was wrongly convicted and sentenced by the learned trial Court. Accordingly this appeal is allowed. Conviction and sentences awarded to appellant Muhammad Imran by the learned trial Judge are set aside and he is acquitted of the charge by giving him the benefit of doubt. He is on bail, his bail bond stands discharged and sureties absolved.
13. These are the reasons for our short order of even date.