' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---The Criminal Revision Petition No.76 of 2012 is directed against the judgment dated 26th March 2012 and the Judgment dated 21-4-2012 ("impugned judgments") respectively passed by the learned Judicial Magistrate, Barkhan ("trial Court") and by the Incharge Additional Sessions Judge, Barkhan at Rakhni (appellate court), whereby the petitioners/ convicts were convicted under section 377/34, P.P.C. And sentenced for three years Rigorous Imprisonment (RI) with fine of Rs. 30,000 (Rupees thirty thousand only), in default whereof, they further directed to suffer Simple Imprisonment (SI) for seven months. The benefit under section 382-B Criminal Procedure Code (Cr.P.C.) was also extended in their favour. The conviction recorded was maintained by the appellate court.
2. The Criminal Revision Petition No.179 of 2012 is filed by the complainant viz, Sultan Muhammad, assailing the impugned judgments up to the extent of quantum of sentences recorded against the convicts/respondents Nos.1 and 2, with prayer for enhancement of sentence. Both the petitions are arising out of the judgments respectively passed by the trial court and the appellate court, therefore, I intend to dispose of these petitions through this common judgment.
3. The necessary facts out of which instant petitions arose are that the complainant Sultan Muhammad submitted a written report (Ex-P/I-A) before the SHO Police Station, Barkhan on 9-11- 2011 averring therein that he along with his brother Ahmed Khan and relative Amir Jan were present at his home, when at 10:30 p.m. His son viz, Muhammad Arsalan came, and he was weeping when told that one week ago Muhammad Rafiq and Naik Muhammad (convict/petitioners) took him to a room in Government Model High School, Barkhan, whereby, they forcibly committed a sodomy with him, and also recorded his movie on mobile phone. Both of them again beaten him today because they were intending to take him for sodomy, but on his resistance, they threatened him that they will publicize his movie in the general public and will defame him. Thus, on aforesaid report of the complainant an FIR No. 21 of 2009 (Ex-P/7-C) was registered on 9-11-2011 under sections 377, 511, 34 P.P.C. With Police Station, Barkhan.
4. The convicts petitioners were arrested on a same day and were taken to Basic Health Unit (BHU)
Rakhni for medical examination. The victim/P.W.2 viz Muhammad Arsalan was taken to hospital on next date i.e. 10th November 2011 for medical examination. The medical certificate (Exh.P/6-A and Exh.P/6-B) of the convicts/petitioners and medical certificate (Exh.P/6-C) of the victim were issued on 17-11-2011. The perusal of challan (Exh.P/7-D) shows that soon after the arrest of the convicts/petitioners, the alleged pointation memo of the place of occurrence (Exh.P/4-A Fard-e- Nishandahi Maga) was prepared. The semen stained trousers (Article P/1, Shalwar) was produced by the complainant, which was taken into possession vide recovery memo (Exh.P/5-A). During the interrogation, a joint disclosure dated 20-11-2011 was stated to have been made by the convicts/petitioners and a disclosure memo (Fard-e-Inkishaf Exh.P/5-C) was prepared by the police followed by joint pointation and recovery memo (Fard-e-Nishandahi, Maqboozgi, Exh.P/5-B), six nude photographs (Article P/2 to Article P/7) and one memory card (Article P/8) were secured and sealed parcel was prepared.
5. On completion of investigations the convicts/petitioners were committed to judicial custody on 21-11-2011. The trial was commenced on 12-12-2011 and the copies of challan and the statements of witnesses were supplied to the convicts/petitioners. The charge was framed and read over to the convicts/ petitioners for offences under sections 377, 511, 34, P.P.C. On 24-12-2011, to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge and to bring the guilt at home, produced and examined as many as seven witnesses. The convicts were examined as envisaged under section 342, Cr.P.C. However; both of them neither opted to enter on oath nor produced any defense witness. On conclusion, the learned trial court has passed the impugned judgment and the convicts/petitioners were convicted and sentenced for above stated terms. The conviction recorded was assailed before the appellate court and maintained vide the judgment dated 21-4-2012. The judgments being impugned were assailed herein.
6. Mr. Arthur Victor, learned counsel for the convicts/petitioners at the very outset contended that in the FIR an allegation of unnatural offence was foisted, which was alleged to had committed one week ago, but the medical witness viz Dr. Mehr Din/P.W.6, opined that the sodomy might have been committed because the victim is catamite, therefore, his positive opinion in respect of alleged sodomy was of no avail to the prosecution. He added that the complainant/P.W.1 and the victim/P.W.2 made dishonest improvements by stating that on 9-11-2011 convicts/ petitioners again committed a sodomy but this allegation was not contained in the FIR, whereas, both the said witnesses admitted in cross-examination that neither in application Ex-P/1-A, nor in FIR Exh.P/7-C and nor in the statement under section 161, Cr.P.C., the said allegation was stated. He further contended that witnesses have further admitted before the court that neither in the alleged nude photograph nor in the alleged movie of the victim, anyone's face was visible. He finally urged for acquittal of convicts/petitioners.
7. Mr. Manzoor Ahmed Rehmani, learned counsel for the complainant has seriously opposed the contentions and stated that the act committed by the convicts/ petitioners does not warrant any leniency. He added that once the trial court reached to the conclusion that offence was made out against the convicts/petitioners, then, no occasion was available to the learned trial court to have passed a lesser punishment without discussing the mitigating circumstances. He further contended that the unnatural offence entails an imprisonment, which may extend to ten years, therefore, the manner and procedure adopted by the trial court is against the norms of natural justice and the appellate court too, failed to consider this aspect of the case, therefore, convicts/petitioners are liable to be convicted and sentenced with maximum term in respect of quantum of imprisonment as provided in the statute.
8. Malik Sultan Mehmood, Advocate appearing for the State has strongly opposed the prayer of acquittal made in Criminal Revision Petition No.76 of 2012 and endorsed the contention advanced by the learned counsel for the complainant in Criminal Revision Petition No.179 of 2012 for enhancement of sentence to the convicts/petitioners.
9. I have heard the parties learned counsel and have gone through the record. It is an admitted feature of the prosecution's case that the complainant P.W.1 and the victim P.W.2 had made dishonest improvements in respect of the alleged offence of sodomy allegedly committed on 9-11- 2011 and both the said witnesses have admitted before the court that the application for registration of FIR and statement recorded under section 161, Cr.P.C. Did not contain the allegation of sodomy allegedly committed on 9-11-2011. The statement of Ahmed Khan/P.W.3 (brother of complainant) is totally silent about commission of unnatural offence. He only deposed about the nude movie of the victim allegedly recorded by the convicts/petitioners. The said witness is also silent about first hand statement of victim, when on 9-11-2011 he came home and was weeping, when he disclosed the alleged unnatural offence committed with him by the convicts/petitioners.
Therefore, the charge framed against the convicts/petitioners was misleading, which stated about the commission of unnatural offence on 9-11-2011 followed by recording of nude movie and taking nude photographs of the victim. Another grave miscarriage of justice took place when the learned trial court relied upon a joint disclosure and joint recovery memo. These tainted pieces of evidence were considered in corroboration to other tainted evidences. The learned trial court had miserably failed to consider that neither the joint disclosure nor the joint recovery memo is admissible in evidence, while one tainted piece of evidence does not provide corroboration to another tainted piece of evidence. The learned trial court had miserably failed to undertake a deeper appreciation of evidence, when the complainant/P.W.1 viz Sultan Muhammad in his cross-examination admitted that he did not see the alleged movie prior to registration of an FIR, but after two days of registration of FIR, his brother (P.W.3) brought the said movie, which he watched, when the case was already registered. The prosecution case was built on quite different lines, when the alleged joint disclosure Exh.P/5-C was shown to have been made on 20-11-2011 followed by joint recovery memo Exh.P/5-B. It cannot be ascertained from the perusal of the prosecution evidence that when the alleged photographs and memory card allegedly contained the nude movie of the victim was recovered on 20-11-2011, how the complainant/P.W.1 was able to have watched the same prior to these recoveries. Therefore, irrespective of the allegation of sodomy the recovery of the alleged nude movie and the photographs were also shrouded in doubts and clouds. These pieces of evidence were not worthy of credence and reliance placed by the learned courts below was no tangible.
11. The prosecution case further becomes dubious when P.W.5 Nazeer Hussain the witness of the alleged disclosure and recovery memo stated that after recovery of memory card the same was played and watched on a mobile phone of the convicts/petitioners and the same was brought from their house. But quite contrarily the P.W.7 Muhammad Azam, SI/Investigating Officer stated that memory card was played and the movie was watched on his personal mobile. The prosecution's case had further been negated, when witnesses admitted before the court that in alleged nude photographs and movie neither the faces of the convicts/petitioners were seen nor the victim could be identified in both the articles. The prosecution's case earned very serious doubts when the convicts/petitioners were medically examined on 9-11-2011 and the victim was examined on 10-11-2011 by P.W.6 (Dr. Meher Din) District Health Officer Rakhni. The offence was alleged to have been committed in Barkhan and P.W.7/ Investigation Officer admitted that the hospital exists and doctor was available in Barkhan. He further admitted that Rakhni is at a distance of more than two hours drive from Barkhan. The statement of P.W.6 (Dr. Meher Din) was also of no avail to the prosecution because in respect of convicts/petitioners, he had opined upto the extent of sexual potency of convicts/ petitioners and in respect of victim, he opined that he is a habitual catamite. The witness is totally silent about procurement of blood group or seminal samples of convicts/petitioners, as well as, about securing seminal stained anal swab of the victim.
There is no cavil to the proposition that in cases of carnal intercourse the opinion of medical witness has got very significant importance and without the opinion of medical expert it cannot be ascertained whether the offence has been committed or not. The judgment cannot be surrendered to the opinion of the doctor alone and the said opinion cannot be held binding on the court, when the same was rendered against the principles of medical jurisprudence, especially, when the known and settled procedure of medical examination of the victim of unnatural offence was not adopted.
12. In the instant case semen matching would have clinched the issue and the medical evidence cannot be considered in isolation but accumulative effect of whole evidence is to be seen. The comparison and grouping of the semen was highly essential to connect the accused with the commission of offence. In the instant case no such exercise was carried out, therefore, the opinion of medical witness is not worth the paper on which it was rendered. The well known jurists of all times in the field of medical jurisprudence and toxicology the Modhi and Parekh are in unison that, "one cannot retain semen after passing stool and washing of body and semen inside the anus washes away in case the victim eases himself' . It is not understandable that when the alleged unnatural offence was stated to have been committed one week before the registration of the FIR how the victim retained the semen in his anus for such a long period, which course is humanly impossible, therefore, the medical opinion being not conclusive and non-speaking must be examined on the touchstone of the medical jurisprudence and by doing so, same did not find any place under the well known principles of medical jurisprudence. When the doctor once opined that the victim is a habitual catamite then without obtaining anal swab of victim's body, it could not be ascertained, whether the convicts/petitioners have committed sodomy or anyone else has committed the offence. T he nude photographs and nude movie alone cannot establish the offence of sodomy that too, when nobody's face can be recognized in either one. The courts of law are bound to take the judicial notice of certain facts like universal truths, everyday science and ordinary and common pursues and routines of general nature, like in the instant case the alleged offence was stated to have been committed on 9-11-2011 with further assertion that at 10:30 a.m. The victim came home and complained about the unnatural offence, he stated that he was in school, when one of the convicts/petitioners came and asked him to wait for them. Then after school hours he remained set there and waited for convicts/petitioners, on arrival the convicts/petitioners appeared and attempted to commit sodomy upon him. The question of significant importance would be that when the victim came home at 10:30 a.m., when he already waited for them after the closure of school. The court was under the legal obligation to have considered the fact that at what time the school commences and closes. It could have been ascertained if some judicial mind would have applied. The trial court as well as, the appellate court was oblivion of their judicial obligation as a court of law. The trial court could have unearthed the truth just by going through the calendar of the relevant year, wherein on 9th November, 2011 all schools and Government offices were on National holiday in terms of "lqbal Day" and at page 49 of the petition, a certificate issued by the Principal Government Model High School, Barkhan is appended, which shows that the school was closed due to National holiday. Thus, this aspect of the matter completely diminishes the prosecution's version, which casts a serious doubt in respect of manner and circumstances alleged by the prosecution.
' The matter was finally heard and was reserved for judgment, when in both the connected petitions Criminal Miscellaneous Applications Nos. 167 and 168 of 2014 were filed by the learned counsel for the complainant captioned as, "Application under section 561-A, Cr.P.C. For not pressing above titled Revision Petition", wherein, it is contended that a compromise has been affected between the parties, therefore, the complainant intends to withdraw Criminal Revision Petition No.179 of 2012 and in Criminal Revision Petition No. 76 of 2012 the complainant will have no objection if the convicts/ petitioners are acquitted of the charge, however, irrespec ive of maintainability of the complainant's Revision Petition, since an application has been moved for withdrawal of Revision Petition, therefore, I am inclined to accept the application and Criminal Revision Petition No. 179 of 2012 is dismissed as withdrawn. The Criminal Miscellaneous Application No.167 of 2014 filed in Criminal Revision Petition No. 76 of 2012 is not maintainable for the reason that in Column No.6 of the Schedule II of Cr.P.C. The section 377 (Unnatural Offences) of Pakistan Penal Code is not compoundable. Therefore, the application up to extent of compromise is also dismissed.
' Thus, in view of above discussions it can safely be concluded that prosecution was miserably failed to substantiate the charge against the convicts/petitioners therefore, the Criminal Revision Petition No.179 of 2012 is dismissed as withdrawn. The Criminal Revision Petition No.76 of 2012 is hereby accepted and the petitioners/convicts are acquitted of the charge.