ABDULLAH BALOCH, J.---This judgment disposes of Criminal Revision Petition No.83 of 2017 filed by the petitioner Yasir son of Faizullah, Rizwan son of Muhammad Anwar and Zaheer Ahmed son of Abdul Wahid, against the judgment dated 21st June, 2017 passed by learned Additional Sessions Judge-VII, Quetta, (hereinafter referred as "the appellate Court") whereby the appeal filed by the petitioners was dismissed, maintaining the judgment dated 31st May, 2017 (hereinafter the judgments dated 31st May 2017 and 21st June 2017 are referred as, "the impugned judgments"), passed by learned Judicial Magistrate-VI Quetta, (hereinafter referred as, "the trial Court"), whereby the petitioners Rizwan son of Muhammad Anwar and Zaheer Ahmed son of Abdul Wahid were convicted under section 377, P.P.C. and sentenced to suffer two (02) years' R.I. each with line of Rs.10,000/- each or in default thereof to further suffer two (02) months S.I., while the petitioner Yasir has been convicted under section 109, P.P.C. and sentenced to suffer two (02) years R.I. with fine of Rs.10,000/- or in default thereof to further suffer two months S.I., with the benefit of section 382-B, Cr.P.C.
2. Facts of the prosecution case are that on 7th October 2014, the complainant Khalil Ahmed, lodged FIR No.160/2014 at Police Station Shalkot Quetta, under sections 377, 506(A), 34, P.P.C., stating therein that on the day of occurrence his son namely Muzamil Ahmed aged 14/15 years was not feeling well, who on query disclosed that on 5th October 2014 at about 07.00 p.m. Zaheer Ahmed, Yasir and Rizwan came and told him for outing. He agreed to go with them, whereafter the accused took him to Muslim Engineering Works Link Road near Gahi Khan Chowk Quetta, where accused persons Rizwan, Zaheer Ahmed and Basharat (absconding accused) went inside shop along with Muzamil Ahmed, where accused Yasir and accused Yahya (absconding accused) stood outside of shop. The accused persons Rizwan and Zaheer Ahmed tied the hands of his son Muzamil with rope and mouth with handkerchief and accused persons Rizwan and Zaheer again and again committed unnatural sexual carnal intercourse with the said victim and (absconding accused)
Basharat made movie of the same. On untying of the handkerchief, the said victim cried and accused persons fled away from the scene of crime and accused persons also threatened him that in case the said victim would inform anyone about the incident, the movie would be published.
3. After registration of FIR, the investigation of the case was entrusted to PW-8 Muhammad Idress, SI/IO, who during investigation recorded the statements of witnesses under section 161, Cr.P.C.; got recorded the confessional statement of victim before the Judicial Magistrate; visited the site and prepared site plan; produced the victim before PW-6 Dr. Ali Mardan, Police Surgeon, who examined the victim; the accused Rizwan and Zaheer Ahmed were arrested and they were produced before Dr. Noor Baloch, who after medical examination issued MLCs of accused. On completion of investigation, the challan of the case was submitted before the learned additional Sessions Judge- IV Quetta and after recording evidence the learned Court opined that since learned Judicial Magistrate is also empower to try the case, hence the case was transmitted to the learned trial Court i.e. Judicial Magistrate-VI Quetta.
4. At the trial, after initiating proceedings under sections 87 and 88 Cr.P.C. the accused Basharat son of Sher Dil and Yahya son of Sher Ahmed, were declared as proclaimed offenders. The prosecution produced Nine (09) witnesses. The petitioners were examined under section 342, Cr.P.C. The petitioners neither recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the trial Court vide impugned judgment dated 31st May, 2017 convicted and sentenced the petitioners as mentioned in para-1 above, whereafter the appeal filed before the appellate Court was also dismissed. Whereafter instant petition has been filed.
5. Learned counsel for the petitioner argued that the evidence produced by the prosecution suffers from material contradictions and dishonest improvements; that the FIR was lodged after the delay of two-days without any plausible explanation; that the prosecution version is lacking independent corroboration as only interested witnesses were produced; that though the Shalwar of the victim was taken into possession on the 10th day of alleged occurrence, but the same was sent to FSL after delay of 1-1/2 years, hence the FSL report has lost its evidentiary value and even was not exhibited in the trial Court; that the prosecution has miserably failed to prove the charge against the petitioner beyond any shadow of doubt and both the Courts below while awarding conviction and dismissing appeal have badly erred in appreciating the evidence available on record.
6. Learned State Counsel assisted by the learned counsel for complainant contended that the judgments of courts below are based on cogent and concrete evidence and the petitioners have failed to rebut the allegations; that the prosecution version was duly supported by the witnesses at the trial and the conviction awarded to the petitioners and maintained by the appellate Court are based on proper appreciation of evidence by the Courts below.
7. Heard the learned counsel and perused the available record. In order to substantiate the case, the prosecution has produced the evidence of nine (09) witnesses. The complainant of the case appeared as PW-1, who fully reiterated the contents of FIR and narrated the entire story in line with Fard-e-Bayan Ex.P/1-A and the FIR. The evidence of said witness was subjected to lengthy cross- examination, but nothing beneficial has come out on record in favour of the appellant. PW-2 is the A victim with whom the petitioners committed unnatural offence. PW-2 narrated the whole story with regard to arrival of accused-petitioners in his house and at the pretext of dating, the petitioners have taken him in the garage of petitioner Yasir and by tightening his mouth and hands committed repeatedly unnatural offence with him and the absconding accused Basharat was also shooting a movie through his mobile phone. The statement of the victim is in line with his earlier confessional statement under section 164, Cr.P.C. recorded by Judicial Magistrate-IV Quetta (PW- 4). PW-4 Farmanullah Judicial Magistrate produced the student PW-2/victim recorded under section 164, Cr.P.C. as Ex.P/4-B and his certificate Ex.P/4-C. PW-3 Muhammad Rashid, is the cousin of complainant/PW-1, who through his statement stated that on the day 7th October 2014 he was called by the complainant and narrated the tragic incident took .place with his son/PW-2. The testimonies of PW-1 to PW-3 are in line with each other on material counts. The said witnesses were cross-examined at sufficient length, but nothing fruitful has come on record in favour of defence.
Both the complainant as well as the victim (PW-2) remained consistent and firm in their deposition.
Both the witnesses accurately uttered the date, time and manner in which the petitioners took the victim along with them on the motorcycle to the garage of brother of petitioner Yasir and tightened his mouth and hands and committed sodomy with him. The ocular testimony produced by the prosecution is direct in nature and the same remained unshaken, being consistent, confidence inspiring on all material counts. The witnesses fully supported the case of prosecution. Although the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses, but in my view, those are not substantive enough to justify or create reasonable doubt in the case of prosecution with regard to involvement and guilt of the appellant.
8. The case of prosecution has further been strengthened by the medical evidence produced by PW-6 Dr. Ali Mardan, who examined the victim/PW-2 and issued MLC Ex.P/6-A, perusal of which reflects that PW-6 after complete examination of victim has opined that the victim has sexually been assaulted. The medical evidence has remained unshaken and unchallenged.
9. PW-7 Dr. Noor Baloch, who has examined the petitioners Rizwan and Zaheer and found them potent and able to perform sexual act. Learned counsel for the petitioners disputed the date mentioned in the MLC Ex.P/6-A i.e. 7.9.2014, but while confronted with the original record of trial Court, in his statement the PW-6 Dr. Ali Mardan, specifically stated that the victim was brought to him on 10.7.2014 and he issued the MLC on 10.10.2014, as such, there is a likelihood of clerical mistake, because MLC could not be issued prior to incident, hence the objection of learned counsel is not tenable.
10. As far as non-production of an independent witness in the trial Court is concerned, suffice to state here that the statements of prosecution witnesses are confidence-inspiring and ring true. As regards the argument of the counsel for the petitioners that related witnesses are not reliable, it is not worth consideration, because none of the relatives has shown to be the eye-witness of the occurrence. It may be observed that a related witness is as much as competent witness, as any other provided he is not inimical towards accused and has a motive to implicate the accused in a false case. It may be observed that in case of sodomy or zina the solitary statement of victims is sufficient to convict the accused if it is confidence-inspiring. Reliance in this regard is placed on the case of Fayyaz alias Fayyazi and another v. The State, 2006 SCM R 1042, the relevant portion reads as under: "... It has also been rightly observed by the learned Federal Shariat Court that conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so available in the case. Undisputedly victim of the offence namely Khadim Hussain at the time of commission of offence was aged about 10 years and a school going boy, who did not carry any ill-will, grudge or malice against the appellants to falsely implicate them in the case. It has, also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated that after attending the class he was on his way for the home through pavement where wheat crop was standing. he was ambushed by accused persons out of whom accused Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him and thereafter accused Fayyaz caught hold of him and sodomy was committed upon him by accused Abbas. He also stated that accused was armed with a pistol who threatened him of serious consequences. The testimony of the victim could not be impeached or discredited though subjected to test of cross- examination by the learned defence counsel. Dr. Atta Muhammad Zafar, the Medical Officer, appeared as P. W.4 who stated that on 24-4-1998 he medically examined Khadim Hussain aged about 10 years was brought to him by Constable Munir Ahmed as a case of sexual assault. The victim was allegedly subjected to unnatural lust on 23-4-1998 and the matter was promptly reported to the police, which was entered as Roznamcha Rappet No.3 on 23-4-1998 at about 2-30 p.m. and subsequently on 25-4-1998 at 9-30 p.m. FIR was registered against the nominated accused persons most probably in view of the MLR of the victim produced by the complainant.
The findings noted in the MLR after the examination by the Medical Officer mentioned above clearly indicate that the injuries were caused by insertion of some blunt object within a duration of 20 to 40 hours. The Medical Officer was subjected to cross-examination by the learned defence counsel and it was not even suggested to him that the noted injuries could be result of any insensate object, therefore, in absence of any other indication or material available on record it could not be said that the same were not caused by penetration in respect whereof the victim expressly stated that he was subjected to sexual intercourse one after the other by the accused persons. Also, no suggestion was given to the Medical Officer in cross-examination that no injury of the like nature as noted in the MLR could be noticed on examination if conducted after 20 to 40 hours approximately on the person of the victim if so caused or inflicted. Hence, it could not be said that any symptom or injury on the person of a victim of unnatural offence could not have been noticed during the medical examination after 20 hours subsequent to the commission of the act. The Medical Officer admittedly was an independent person having no reason to issue a false certificate favouring the victim, therefore, this piece of evidence in view of the contentions raised on behalf of the appellants could not have been discarded and rightly so believed by the learned Federal Shariat Court."
Similar view has also been taken in the case Mushtaq Ahmed and another v. The State, reported in 2007 SCM R 473, wherein it has been held as under: "It is consistent view of this Court that in rape cases mere statement of the victim is sufficient to connect the petitioners with the commission of offence in case the statement of the victim inspires confidence. In the present case both the Courts below have given concurrent conclusions that statements of both the victims (P.W.9 and P. W 10) inspire confidence and connected the petitioners with the commission of offence. They had faced lengthy cross-examination by the defence but defence had failed to shake their veracity. The statement of P.W. 9 was duly corroborated by the medical evidence of Dr. Tahira Afzal Durrani who had categorically stated that her hymen was absent and she was pregnant. Her statement was also corroborated by the statement of Dr. Malik Saeed Akhtar Radiologist P. W. who had examined P. W.9 and also performed her ultra-sound according to which she was pregnant of about 18 weeks. Both the Courts below were justified to believe the statements of the aforesaid witnesses after reappraisal of evidence. The trial Court was justified to disbelieve the defence version and upheld by the learned Federal Shariat Court. It is not believed or appealed to reason to observe that a sane person would ever like to put at stake his or her family honour as well as career of young unmarried daughter for such petty disputes as alleged by the defence. Both the Courts below after proper appreciation of evidence have concurrently convicted the petitioners with cogent reasons keeping in view all the principles laid down by this Court in the safe administration of justice. This Court as a rule should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court, of the first instance which had advantage of hearing the parties, witnesses and watching their demeanour." (underlines provided emphasis)
11. So far as, the delay of two days in registering the FIR is concerned, in my view mere delay alone in lodging the FIR is not helpful for defence to claim acquittal of the petitioners. In such like cases the prestige of family and respect is involved as the child of someone was defamed, people were reluctant in filing report to the Police and it was a H natural course that the guardian of victim must have consulted his relatives, whether to the report or not. Even otherwise, the complainant soon after receipt of information from the victim reported the matter. Hence, the delay in filing FIR in the circumstances, was natural and same was not material to the case. Where a minor child could be defamed for whole life, no father or elder brother would involve an innocent person in the false case. The prosecution has produced corroborative and confidence inspiring evidence and the defence has failed to cause any sort of dent in the evidence of prosecution, therefore, the objection so taken by the defence is without any substance. Reliance in this regard is placed on the case of Kamran alias Kami v. The State 2012 PCr.LJ 1200. For facilitation, the relevant portion is reproduced herein below: "Another argument of the counsel for the appellant is that the FIR is delayed by four and half hours. This delay is unexplained, therefore, the conviction cannot be passed on the basis of this FIR. We have examined the whole record. From the record it is evident that the occurrence took place on 12-00 pm and when the convict-appellant released the victim, he went to his home and narrated the incident to his father, who filed the report. It may be observed that in our society, such like incidents where family prestige or respect is involved and child of someone is defamed, people are reluctant in filing reports to the Police. It is a natural course that the father of victim must have consulted his relatives whether, to file report or not and after consultation he filed the report. In the matters of family honors where a child of 11 years can be defamed for whole life, no father will involve an innocent person in a false case. The delay is natural and such delay is not material to the case."
12. Now adverting to the Forensic DNA and Serology Analysis Report dated 18th April 2016, which is in affirmative, but the defence has taken the-plea that the alleged Shalwar of the victim took into possession on 14th October 2014, the presence of PW-5 Maqbool Ahmed by the Investigating Officer, but the same was received to FSL on 31st I March 2016 i.e. after delay of one and half year.
Be that it may, if the instant FSL report is discarded in toto from consideration, even than sufficient incriminatory and direct evidence are available on record connecting the petitioners with the crime and the entire evidence cannot be thrown aside solely on the basis of defective report of Serologist.
13. Throughout the case, the petitioners have failed to take any specific plea with regard to their false implication. In their examination under section 342, Cr.P.C. the petitioners simply denied the allegations and even did not record their statements on oath and also not produced any witness in their defence, whereas on the other hand the prosecution has produced direct solid evidence, hence the direct evidence so produced by the prosecution cannot be brushed aside merely on the basis of bald denial of the petitioners. Both the Courts below have rightly properly appreciated the evidence in its true perspective. The learned counsel for the petitioners have failed to point out any misreading and non-reading of evidence and major contradiction in the statements of PWs or any material illegality or irregularity in the impugned judgments, warranting interference by this Court.
The case laws so referred by the learned counsel for the petitioners are not helpful to the defence.
For the above reasons, the petition being devoid of merits is dismissed. The petitioners are on bail; be taken into custody and be sent to Jail to serve their remaining period of sentence.