Mehdi Hassan son of Riaz Hussain, Caste Syed and Ijaz son of Abdul Sattar , Caste Muslim Sheikh, both resident of Mouza Harseh Bullah, District Chiniot, the appellants . were involved in a private complaint, offences under Sections 367-A, 377, 337-L(ii) PPC, in case F.I.R. No. 346-2016, dated 05.08.2016, offence under Sections 367, 377 PPC, registered at Police Station, Rajoa, District Chiniot and were tried by the learned Additional Sessions Judge, Chiniot. The learned trial Court seized with the matter in terms of judgment dated 26.05.2017 convicted the appellants under Section 377 PPC and each of them was sentenced to undergo rigorous imnrisomnent for seven years with the direction to pay Rs. 30,000/- each as fine and in case of default thereof, each of them would further undergo imprisonment for two months. The appellants were also directed to pay Daman of Rs. 5000/-each under Section 337-L (ii) PPC to the injured-victim. The appellants have assailed their conviction through filing instant criminal appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PD-1) lodged on the statement/ fard bayan (Ex.PD) of Ahmad Ali (PW-5) the complainant is that on 04.08.2016 at about 8:00 a.m his son namely Muzammal went outside the house to attend call of nature, when he did not come back for a along time, the complainant (PW-5) worried about him and started search for his son along with Arif and Mukhtar Ahmad and when they reached near sugarcane crop of Imtiaz Shah, they heard hue and cry whereupon they entered the sugarcane crop and saw that the accused- Mehdi Hassan along with his co-accused, Ijaz and two unknown accused persons caught hold Muzammal and after committing sodomy with the victim-Muzammal, the accused Mehdi Hassan entered a plastic pipe in the rectum of victim, Muzmmal whereas co-accused Ijaz and two unknown persons caught hold Muzammal from his legs and put hands on his mouth. Upon seeing the witnesses, the accused persons fled away from the place of occurrence.
3. The motive behind the alleged occurrence was that a brawl which took place between accused-Mehdi Hassan and victim-Muzammal during a volleyball match whereupon the accused-Mehdi Hassan threatened the victim for dire consequences.
4. After registration of case, the investigation of this case was entrusted to Muhammad Yaqoob, SI (CW-1), who having found the accused/appellants guilty , prepared report under Section 173 of Cr.P.C and sent the same to the Court of competent jurisdiction. On 24.03 .2017, the learned trial Court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as six
(06) witnesses.
5. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellants in the above stated terms.
6. Arguments advanced pro and contra have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the parties.
7. My conclusion that the material placed before the Court is not sufficient to convict the appellants of the offences they were charged with, is based on the following:-
8. The first lacunae in the case is with regard to the medical evidence and with reference of the testimonies of the witnesses and victim to establish time and date of occurrence. A close scrutiny of the testimony of Dr. Saima (CW- 2) would establish that incident did not take place on 04-08-2016 as stated by the prosecution witnesses. Dr. Saima (CW-2) deposed during examination-in-chief that on 04-08-2016 she (CW-2) attended Muzamil aged about 18 years in the operation theater . Dr. Saima (CW -2) deposed during cross-examination as under: "----It has mentioned in presenting complaints with history of foreign body rectum one day. when he was gushed behind and given something to sniff, he became unconscious and now he present to us with history of foreign body in the rectum. Volunteered, the same was not written by me. I can not tell the name of the doctor who wrote the history--"
Whereas, it is the prosecution's case based on the testimonies of Ahmad Ali (PW-5)-the complainant, father of the victim, and Muzamil Abbas (PW-6), the victim, that is, the appellants along with two unknown persons forcibly caught hold Muzamil Abbas (PW-6), the victim, and took him (Muzamil Abbas (PW-6)) to sugarcane crop where the appellants forcibly removed shalwar of Muzamil Abbas (PW-6), the victim, and thereafter the appellants forcibly committed sodomy with Muzamil Abbas (PW-6), the victim. A close scrutiny of the testimony of Muhammad Ashraf 246/HC (PW-4) will show that on 04-08-2016 he (PW-4) prepared injury statement (Exh.PB) through rapt No 4 dated 04-08-2016 at 2:30 p.m. on the complaint of Muhammad Iqbal son of Mola Dad (not cited as witness) in absence of Muzamil Abbas (PW-6), the victim. Muhammad Ashraf 246/HC (PW-4) deposed during cross- examination as under: "----Muhammad Iqbal son of Mola Dad submitted an application to Incharge Police Post and upon that application FIR was incorporated. FIR was not incorporated by me--Muhammad Iqbal son of Mola Dad did not disclose me the time when Muzamil was found him during search in unconscious condition. Said Muhammad Iqbal did not disclose before me that if any person except him had seen said Muzammil in unconscious of condition. When I issued injury statement, at that Muhammad Iqbal son of Mola Dad did not state before me that Mehdi Shah son of Riaz Shah and ljaz son of Sattar had committed sodomy upon and after commission of offence enter ed a plastic pipe in the anus of alleg ed victim Muzammil and also was pushing in the anus. Doctor did not make any call to police post Mathr oma about the commission of offence with Muzammil and his presen ce at DHQ Hospital Chiniot. It is correct that Muhammad Iqbal son of Mola Dad had told me that Muzammil had been examined by the M.O and M.O told that the act of sodomy was done upon him and I had referred him to Allied Hospital Faisalabad. After his information injury statement Ex.P.B was prepared by me and sent this injury statement to getting the MLC from hospital through Mazhar Ali 642/C. It is correct that Muzammil did not come police post Mathroma. It is also correct that I prepared injury statement withou t Muzammil victim. It is correct that I did not examine said Muzammil before preparing injury statement. I did not mention any injury in injury statement Ex.P.B as I had not examined said Muzammil."
Muhammad Yaqoob S.I. (CW -1) the investigating of ficer also deposed during cross-examination that: "It is correct that in Ex.P-B it was mentioned that one Mohammad Iqbal Kharl resident of Herseh Bullah came at Police Post Mathroma and got recorded rapt No. 4 dated 04.08.2016 about 2:30 pm and informed that his paternal cousin Muzamil was found unconscious during search in the sugarcane filed of Said Shah Herseh Bullah and was shifted at once to Civil Hospital Chiniot where M.O. told that unnatural lust was committed upon him and he was referred to Allied Hospital and on that information I prepared injury statement and sent said injury statement to M.O. through Mazhar Ali 642/C and informed its result. I did not call said Mohammad Iqbal and joined him in the investigation regarding rapt Ex.P-B. The victim was not accompanied with Mazhar Ali 642/C but merely injury statement was .entrusted to said Mazhar without examination of victim. The said Muharar informed that he issued one injury statement on 04.08.2016."
Whereas, Ahmad Ali (PW -5)-the complainant, father of the victim, deposed during cross-examination as under: "----I stated in my complaint Ex.PG and in my cursory statement before this Court that I went to police post Mathroma for injury statement of victim Muzammil. Confronted with Ex.PG and Ex.DA where the word police station Rajoa is mentioned. On the day of occurrence at about 12:30 pm I took Muzammil on rickshaw to police post Mathroma for getting the injury statement. FIR was not lodged on the same day. It is incorrect to suggest that I did not go to police post Mathroma for injur y statement. It is incorrect to suggest that one, Iqbal son of Mola Dad got the injury statement at about 2:00 p.m from police post Mathroma---On 04.08.2016 doctor discharged my son from Allied Hospital after conducting operation.
Operation was carried about 6:30 pm. We went to Allied Hospital at 4:00 pm. Any police official was not with us at Allied Hospital Faisalabad--"
Contrary to the deposition of Ahmad Ali (PW-5) the complainant, Muzamil Abbas (PW-6), the victim, deposed during cross-examination as .under: "----One Muhammad Iqbal son of Mola Dad is my remote relative, he was with me in DHQ Hospital Chiniot and I was examined there at about 12:30 pm on the day of occurrence by the M.O. Said Muhammad Iqbal also accompanied me in the rickshaw . I did not narrate the doctor about the time and name of accused who committed sodomy with me. When I was provided drip. I become unconscious. I do not remember what I told to the doctor . I did not tell the doctor my name, parentage and my whereabouts. At the time of examination I was wearing shirt and Tahband. I was not wearing shalwar . Blood was not coming out from my anus when I came to hospital. I was medically examined at DHQ Hospital Chiniot--I was admitted there and plastic pipe was removed through operation. At about 10/10:30 pm I was discharged from Allied Hospital Faisalabad. I did not tell the story of occurrence to M.0 at Allied Hospital-"
This fact creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Ahmad Ali (PW-5) and Muzamil Abbas (PW-6). The medical evidence does not support the prosecution case. DNA test was in negative. The result and conclusion of Forensic DNA and Serology Analysis Report reads as under: Result and Conclusion .
"No seminal material was detected on item # 1 and 2; therefore no further DNA analysis (Short Tandem Repeat profiling) was conducted on these items . No semen stain was observed on item # 3 and 4. No analysis was conducted on item # VI, SI and S2."
Nevertheless, I am of the view that the prosecution's attempt to place the guilt on the doorstep of the appellants, on the basis of testimony of Ahmad All (PW-S)-the complainant and Muzamil Abbas (PW-6), the victim, cannot be sustained in view of the above discussion.
9. The aforesaid discussion attains impo rtance in view of the fact that the defence has brought on record the contradictions in the evidence of Muzamil Abbas (PW-6), the victim. Muzamil Abbas (PW-6), the victim, deposed during cross-examination, which reads as follows: "----I had recorded in my statement under Section 161 Cr.P.C. that accused caught hold me and took me to sugarcane crop. Confronted with Ex.DB where it is not so recorded. I had not recorded in my statement under Section 161 Cr.P.0 two unknown persons also committed sodomy with me. Confronted with Ex.DB where two nominated accused and two unknown persons were also assign ed the role of commission of sodomy . I do not remember whether I recorded in my statement u/s 161 Cr.P.C that I was taken to police cost Mathroma in a rickshaw . I do not remember whether I recorded in my statement under Section 161 Cr.P.0 that I was initially examined at DHQ Hospital Chiniot. I do not remember whether blood was coming out from my rectum or not. I do not know whether accused were discharged at the time alleged commission of sodomy or not. I do not know about the emission of seme n of accused person on the perianal area of my body . I do not know whether FIR was lodged on the same day or not--"
The above circumstance is rather curious in view of the fact that Ahmad All (PW-5)-the complainant in his testimony has stated about the motive that two days prior to the occurrence a quarrel took place between accused Mehndi Shah and Muzamil Abbas (PW-6), the victim, while playing volleyball match and accused Mehndi Shah threatened, Muzamil Abbas (PW-6), the victim that he would teach him a lesson, so that he could not be able to live or die. If this was true one would has expected the family members to immediately report the incident to the police. As a matter of fact, in his (PW -5) cross-examination Ahmad Ali (PW -5) the complainant deposed, which reads as follows: "----No one sustain injury in result of alleged motive quarrel. I had learned the motive story from my son Muzamil. I had not seen the quarrel which allegedly taken place between my son and accused Mehdi Shah.
I had not informed the police about the alleged quarrel or intimidation from accused Mehdi and neither any panchait was ordained to redress the grievance--"
Muzamil Abbas (PW -6), the victim, deposed during cross-examination, which reads as follows: "----One Muhammad Iqbal son of Mola Dad is my remote relative--we did not produce the witnesses of quarrel in volleyball match before police--we did not inform the police rega rding such quarrel to police before the occurrence--"
It does not fit with the sequence of events placed before this Court by the prosecution that the quarrel is the motive behind commission of this crime. The reason being that as per the medical evidence incident took place one day prior to alleged. date of incident.
10. The other defect in the case of the prosecution is with regard to the site where the crime is stated to have been committed. The prosecution's case is that the crime was committed in the sugarcane fields. Muhammad Yaqoob S.I. (CW -1) the investigating of ficer also deposed during cross-examination that: "----I did not verify the whereabouts of alleged victim at my first visit at the place of occurrence. I recorded the statement of victim on 07.8.2016. I did not take permission from any medical officer qua his fitness for recording his statement under Section 161, Cr.P.C. I did not verify the fact that the alleged victim was admitted in any hospital for treatment. I did not write in police karwaee beneath Ex.PD that complainant produced before me the copy of MLC of alleged victim--It is also correct that it is busy road. It is correct that I had not mentioned the descr iption of sugarcane whether it was thin or thick at the time of preparation of site plan. I did not mention the distance from point No. 1 to road in my inspection note as well as in site plan Ex.CW .I/A. Point No. 2 is not situated at road but it was situated in sugarcane filed from the complainant and witnesses namely Arif and Mukhtar Ahmad attracted at spot on hearing hue & Cry. I did not mention between the point No. 1 and point No. 2. I did not write any sign of violence, struggle and broken of sugarcane filed from points No. 1 2 & 3. If there had been found said signs of struggle. I would have been mentioned in the inspection note or the site plan--It is correct that I did not find any foot prints or resistance signs on the place where the complainant as well as PWs stated about the running of four persons p.g. two nominated and two unknown persons--"
Therefore, it seems improbable if it is for a moment believed that the incident took place in the sugarcane the victim would have been received injuries on his body . The victim had received only one injury of his knee at the time of examination. A close scrutiny of the medical evidence also reveals that the victim received only one simple injury .
However , Muhammad Yaqoob S.I. (CW -1)-the investigating of ficer deposed during cross-examination that: "----It is correct that during the investigation it came into my knowledge that Khateeb Jamia Mosque Dost Muhammad. Asghar Ali and Faisal Abbas both belonging to Kharl told that victim Muzamil Abbas on 04.8.2016 stayed in the wash room of mosque and we heard the whispering and remained in wash room for one hour . It is correct that on 28.9.2016 the 11 persons appeared on side of complainant when this fact came during investigation but they failed to rebut it. It is correct that one Asghar Ali son of Sarang Ali Kharl was student of B.A and he told that he knocked the door of wash room of mosque and asked who was inner side, reply was that I was myself and I identified that was the voice of Muzamil Abbas alleged victim. It is correct that after direction was made by high-ups to consolidate real position of accused. I perused the mobile data and found that at 7:55 am the location of cell phone of Mehndi Hussain was found in Chak No. 5 Kamalpur . Kamalpur is at a distance of 55 KM from Herseh Bullah. On 09:46 his location was found through data line street No. 4 stadium road Faisalabad. It is correct that on 9:52 am Muzamil contacted Afzal Shah and again contac ted at 10:18 am on Afzal Shah--It is correct that during investigation I found that Muzamil Abbas did not go to the field of sugarcane owned by Imtiaz Shah and it was found that he eased himself in the latrine of mosque and remained there at about 8:00 on 04.8.2016. It is correct that complainant side consisting of 11 persons did not contradict this fact which was brought before them on 28.9.2016 vide case diary No. 24 that Muzamil Abbas victim did not ease himself in the latrine of mosque. This fact that Muzamil Abbas eased himself in the latrine of mosque and was remained there at 8:00 am was confirmed not only the Imam Masjid Dost Muhammad but some other respectable persons that they had seen this fact. It is correct that two persons namely Asghar Ali and Faisal Abbas who confirmed this fact that on 04.8.2016 Muzamil was present in the latrine of mosque at 8:00 am. It is correct that it was not confirmed through the material which I collected that Muzamil did not ease himself in the sugarcane of Imtiaz Shah on 04.8.2016 at 8:00 am--it is correct that DPO Chiniot directed to get DNA test so as it was to be ascertained the innocence or guilt of accused persons and in the direction of said line I examined the DNA test and also got polygraph test in this regard. It is correct that during investigation accused Mehndi Hussain produced his identity card of Lyallpur Law Colle ge, roll number slip roll No. 000302 abut recovery of mentioning of his Paper on 04.8.2016 Arabic Langua ge 9:00 to 10:30 am and paper No. 7 English Language 10:30 am to 12:00 noon. He also produced question paper having mentioned hos roll number . It is correct that I did not secure these documents vide recovery memo but said documents were available on judicial file which were submitted by me at the time of submission of challan. I received attendance sheet with roll No. 302 of accused Mehndi Hussain from Controller examination Punjab University Lahore. I did not record the statement of any employee of said university . It is correct that all above facts of ali-bi in the shape of documents was in the notice of complainant side. The complainant side did not challenge the documenta ry evidence which was collected by me or produced by accused Mehndi Hussain regarding the plea of ali-bi"
11. On perusal of attendance sheet dated 04-08-2016 (Mark-F), it reveals that the attendance of the Appellant No. 1 was marked for morning session. The evidence to prove alibi is sufficient to estab lish affirmatively , however , if the entire evidence considered raises a reasonable doubt, such doubt shall be extended in favour of a person who pleaded alibi. Thus, the prosecution failed to discredit the plea of alibi. The princ iples on the plea of alibi and its proof apply to the circumstances existing in the case on hand. Therefore, I have to hold that the alibi pleaded by the appellants is established. The critical scrutiny of evidence, as discussed above has compelled me to reach the conclusion that appreciation of evidence by the learned Additional Sessions Judge to convict the accused for the offences alleged against them is not satisfactory and correct.
12. From the above detailed discussion, I am, however , convinced that the prosecution has failed to establish its case. It seems that the truth was seen buried under the debris and a different story was structured perhaps to lug the appellant into trial under the serious offence. It is often said "that Fouler the crime higher the degree of proof" I have gone through the process of keen examination of the entire material and found compelling reasons as stated above to disgrace with the conclusion reached/recorded by the learned Additional Sessions Judge and also found that the prosecution has miserably failed to prove the guilt of the accused-appellant beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v . The State" (2009 SCMR 230 ), it is held as under: "Benefit of doubt--Principles--Forgiving the benefit of doubt it is not necessary that there should be many circumstances creating doubts-- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".
13. For what has been discussed above, in my humble view the prosecution has failed to bring the guilt at home against the appellants by presenting evidence beyond shadow of doubt, therefore, I am inclined to allow this appeal and acquit the appellants-Mehdi Hassan and Ijaz of the charge in a private complaint, offences under Sections 367-A, 377, 337-L(ii) PPC, in case F.I.R. No. 346-2016, dated 05.08.2016, offence under Sections 367, 377 PPC, registered at Police Station, Rajoa, District Chiniot. The appellants-Mehdi Hassan and Ijaz are directed to be released forthwith if not required in any other case.