' The facts giving rise to this revision petition briefly are that Abdul Wahab and Wali Dad petitioners were tried by Magistrate Section 30, Sargodha under section 377, P.P.C. On the charge of committing sodomy upon Muhammad Aslam P.W.3. They denied the charge and claimed to be tried.
2. To prove its case, the prosecution examined five witnesses.Muhammad Aslam P.W.3 gave the ocular account of the occurrence. He stated that he was removed from outside the house of Malik Ghulam Qadir, Advocate by Wali Dad appellant and taken in a rickshaw to railway quarters where Wali Dad and Abdul Wahab appellants committed sodomy with him. Dr. Nasir Khan P.W.1 medically examined Muhammad Aslam and found lineal laceration present on the anus. He did not give any opinion as to the commission of the sodomy. He, however, took swabs for the examination by chemical examiner. Zulfiqar, A.S.I. P.W.2 received parcel from Muhammad A.S.I. P.W.5 and sent the same to the chemical examiner through Nasarullah foot-constable (not produced). The chemical report Exh.P.B. Is to the effect that the swabs were stained with semen. Khurshid Ahmad P.W.4 stated that on the eventful day he was sitting in a hotel alongwith Qurban P.W. Where Wali Dad petitioner came and enquired the whereabouts of Muhammad Aslam and that Qurban P.W. Gave him the necessary information. Mehr Muhammad Khan, A.S.I. P.W.5 investigated the case.
3. When examined under section 342, Cr.P.C. The petitioners denied all the incriminating circumstances. They produced seven witnesses in defence. On the conclusion of the trial Court, the petitioners were convicted under section 377, P.P.C. And sentenced to four years' R.I. And a fine of Rs,2,000 in default thereof further R.I. For one year each. The appeal filed by the petitioners against this judgment was dismissed on 23-8-1984, hence this revision.
4. The learned counsel for the petitioners contended that the evidence has not been appreciated in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases. He argued that there was an unexplained delay of 16 hours in lodging the F.I.R. That Muhammad Aslam is not a dependable witness and that there is no independent corroboration of his statement. Conversely the learned counsel for the State supported the judgments of the learned Courts below.
5. 1 have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that there is a delay of about 17 hours in lodging the F.I.R. No doubt in the F.I.R. It was stated that on finding opportunity, the victim (Muhammad Aslam) escaped and ran to the police station to lodge the report but Muhammad Aslam did not state so in his statement before the Court. The narration given in the F.I.R. Not being a substantive piece of evidence, the explanation given in the F.I.R. Cannot be considered. Since at trial stage the prosecution did not care to explain pulpable delay, therefore, it can be safely said that it is a case of unexplained delay of about 17 hours. Coming to the direct evidence, I find that no doubt conviction could have been recorded on the solitary statement of Muhammad Asiam but for that the precondition was that of absolute confidence. So I proceed to examine whether Muhammad Aslam is an absolutely dependable witness or not. I find that at bail stage he had sworn affidavit that he could not identify the culprits as they had muffled their faces.
At trial stage he admitted the execution of that affidavit Exh.D.A. His explanation however was that the same was got signed by him under coercion. Furthermore, he stated that: ' Khurshid was present when he was removed from outside the house of Ghulam Qadir by Wali Dad petitioner but Wali Dad has not stated so.
' He stated that Qurban and Khurshid P.Ws. Had witnessed the commission of sodomy by the appellants upon him. Khurshid Ahmd P.W.4 has not stated to have seen the commission of sodomy. Qurban has not been produced by the prosecution. For these reasons I am of the view that it would not be in accordance with the safe administration of justice to place implicit reliance on the uncorroborated testimony of Muhammad Aslam. To disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credit of the witness that may make the entire statement doubtful. It appears that the Courts below have not properly appreciated the evidence.
' Mere absence of enmity of a witness would not stamp his statement with truth. My independent assessm ent is that the prosecution has failed to prove its case beyond reasonable doubt.
6. For what has been stated above, giving them the benefit of doubt, the petitioners are acquitted of the charge. They shall be released forthwith if not required in any other case.