Imdadally H. Agha, J.--This is an acquittal appeal filed by the State against the judgment of the learned A. C. M. No. X, Karachi (Mr. Ahmedullah) dated 5th of July 1966, whereby the respondent Juma was acquitted of an offence under section 377, P. P. C. The date of occurrence is said to be the 14th of August 1965, and the time was 2 a.m.
2. The relevant facts are these. The victim of the alleged sodomy is the boy complainant Shah Jehan (P. W. 1) aged about 14 years. On the date of occurrence at 2 a.m. the complainant Shah Jehan was attending an entertainment function of one Ghulain Hussain in connection with his marriage at Haji Ismail Road. The respondent Jumo was sitting close to him at a distance of about 2-3 paces. The complainant knew his brother. The respondent asked the complainant to bring cigarettes but he refused to go and asked his cousin to bring them. The respondent, however, asked the complainant that he should himself go as he was his neighbour and so the complainant left the function and went. The respondent had given him Re. 1 to bring Red & White Cigarettes.
When the complainant had gone at a distance of about I0O paces he was caught hold of by the respondent from the back side in the darkness and the respondent lifted him by the legs taking him to Sakina Lane by dragging. There the respondent asked the complainant to take off his pants but the latter refused to do so. The respondent then forcibly took off the pants of the complainant and laid him down on the ground and committed sodomy upon him. The complainant raised cries but since there was darkness, nobody came there. The respondent then asked the complainant to keep quite and that if he made noise he (respondent) would stab him with knife. Thereafter the complainant started coming back to the place of function and the respondent was also following behind him. When they came out of the lane the complainant met bis maternal uncle Muhammad Ismail (P. W. 4) and brother-in-law Sher Muhammad (P. W. 2) outside the lane. The complainant told these two witnesses weeping everything about the incident. Both these witnesses then caught hold of the respondent Juma and took him to Khadda Police Station. The complainant also accompanied them there. The complainant lodged his First Report Exh. P./l which was recorded by the S. I. P. Muhammad Masood Hussain (P. W. 9). The complainant also produced one-rupee note which the S. I. P. took into possession under a Mashirnama Exh. P/5. The S. I. P. then arrested the respondent. He sent both the complainant and the respondent Juma to C. M. O. in Civil Hospital and thereafter the pants of the respondent and the pants of the complainant were taken into possession and sealed under mashirnamas as per Exhs. P./3 and P./4, respectively. The S. I. P. then visited the scene of offence and in presence of mashirs inspected the same. He prepared a mashirnama regarding it as Exh. P/2. He recorded the statements of P. Ws. Muhammad Ismail and Sher Muhammad. On 16-8-1965 he sent the sealed pants for chemical analysis to the Chemical Analyser. On 9-11-1965, he received Chemical Analyser's reports which he produced as Exhs. P./6 and P./7. These reports show that the swab and two slids of rectal smear of complainant Shah Jehan were found to be stained with semen and the two slids of urathal of respondent Juma was also found to be stained with semen. The chemical report regarding the pants of the complainant and the respondent Juma was also produced by the S. I. P. as Exh. P./8 but this report is in the negative. After completing the investigation the S. I. P. challaned the respondent to the trial Court where the latter took his trial with the result already mentioned above.
3. The respondent when questioned under section 342, Cr. P. C. at the trial denied the prosecution allegations and pro* fessed innocence. He stated that all the material P. Ws. were the relatives of the complainant Shah Jehan and added that the case was false as he was implicated due to his old enmity with P. W. Ismail, the uncle of the complainant. He further stated that he did not know the complainant at all.
4. The respondent examined three witnesses in defence, namely, Taj Muhammad (D. W. 1), Wali Muhammad (D. W. 2) and Muhammad Yakoob (D. W. 3).
3. The points for determination which arise in this appeal are (i) whether sodomy was committed on the complainant Shah Jehan and (li) whether the respondent committed sodomy on him.
6. Point No. 1.--On this point there is the evidence of the victim boy complainant Shah Jehan himself who alleges that sodomy was committed on him and besides him we have also the evidence of Dr. Azam Jillani (P. W. 3), whose opinion would be conclusive on the point. The doctor says that when he examined the complainant Shah Jehan he found the following things on his person :-- "There were no injury marks on clothing and person of the complainant suggestive of struggle.
There were found two abraded contusions one at twelve o'clock position extending from anal margin to about 3/4' into the anal canal and 1/6' in width. The other wound was abraded contusion at eleven o'clock position extending from anal margin to about 1/4* to the anal canal and 1/4' in width. The tone of the splinciter was normal. Rectal smear was preserved and sealed.''
7. The swa b and two slids of rectal smears of the complainant Shah Jehan were sent to the Chemical Analyser, whose report Exh. P./6 shows that these articles were stained with semen. The doctor's opinion is that the examination of the complainant showed that the alleged act of sodomy was committed on him and the final opinion depended upon the chemical examination of the rectal smear which as already said has been found in the positive by the Chemical Analyser. The doctor also stated that the complainant Shah Jehan is not a habitual catamite.
8. There is no reason not to believe the doctor's evidence and the Chemical Analyser's report Exh.
P./6 and these pieces of evidence clearly show that sodomy was committed on the complainant Shah Jehan hence we find this point in the affirmative.
9. Point No. 2.--In this case the main evidence against the respondent is that of the victim boy complainant Shah Jehan as supported by his brother-in-law Sher Muhammad (P. W. 2), his cousin Muhammad Ismail (P. W. 4) and his another cousin Mushtaq Ahmed (P. W. 5). There is, of course the other corroborative evidence available on the record which is the medical evidence and the reports of the Chemical Analyser Exhs. P. 6 and P./7.
10. The complainant boy has implicated the respondent fully and to repeat what he has said is that he was attending the marriage function of Ghulain Hussain (P. W. 7) when the respondent was sitting beside him. At 2 a.m. the respondent asked him to br ng cigarettes for him and offered him a rupee but he refused to go. The complainant asked his cousin to go and fetch the cigarettes but the respondent again insisted on the complainant that as he was his neighbour he should go. The complainant then agreed and taking one-rupee note from the respondent proceeded towards the shop to purchase the cigarettes. When he had hardly gone about I0O paces from the marriage function the respondent following him over-reached him and in the darkness at that place asked him to allow him (respondent) to have carnal intercourse with him against the order of nature but the complainant refused. Thereupon the respondent lifted the complainant by his two legs and took; him into the nearby lane where also there was darkness and forcibly opening his pants he committed sodomy upon him. The complainant cried out at that time but no one came near as there was complete darkness. The complainant then was returning to the marriage function followed by the respondent when P. Ws. Sher Muhammad and Muhammad Ismail who had come out in his search met him. He told them about the 'incident- weeping and both these witnesses caught bold of the respondent who was following the complainant at that time. These witnesses along- with the complainant then took the respondent to the police station where the complainant lodged his report Exh. P./l at 3 a.m. Thus, the complainant has fully implicated the respondent for the charge levelled against him. TJtie- complainant appears to be a disinterested witness as he has no previous enmity or grudge against the respondent so that his word may be doubted. I find no reason on the record why the complainant should falsely implicate the respondent unless what he states against the respondent is true. The medical evidence which has come through Dr. Azim Jillani (P. W. 3) on record also supports the complainant. The doctor has stated that he had medically examined the victim boy, i.e. the complainant, and the respondent and had taken rectal smears of the complainant and the urathal smears of the respondent. Both these were sent for chemical analysis and the chemical analyser's reports Exhs. P./6 and P./7 show that both these smears were found to be stained with semen. The medical evidence against the respondent, therefore, strongly corroborates the allegation of the complainant against him that he committed sodomy upon him (the complainant). AM. A.-G. The learned counsel for the respondent has argued that the complainant should not be relied upon because although he_________ raised cries at the time of the incident from a place which was imdadally I0O paces away from the marriage function at which many people H. Agha, J had attended but no independent witness, according to him, appears as such the complainant was not a reliable witness. This argument does not impress me as obviously at the function perhaps the cries were not heard by any one or even if some one had heard it, it would make no difference because there was no one interested in the complainant so that he should go for his help or at any rate nobody else who is nol^ related to the complainant would like to embroil himself into the affairs of the others. It is, therefore, that no one had reached on the cries of the complainant at the scene of offence at the time of occurrence.
11. The evidence of P. W. Mushtaq Ahmed also supports the complainant in that P. W. Mushtaq Ahmed says that he was sitting alongwith the complainant at the marriage function and the respondent was sitting behind them. The latter asked the complainant to bring cigarettes for him so the complainant had left to bring the cigarettes. 1 find that this witness is also reliable and he cannot be dubbed as an interested witness merely because he is related to the complainant, lt is by now made quite clear by our own Supreme Court that a witness can be called interested only if he has motive to falsely implicate the accused. Obviously, in this case P. W. Mushtaq Ahmed, nor the other P. Ws. for that matter, had any motive to falsely implicate the respondent as they had no grudge against him whatever. l2. P. Ws. Sher Muhammad and Muhammad Ismail also support the complainant in that they both say that they had come from their houses in search of the complainant who was reported to them to be missing from the marriage function and they met the complainant in the lane as he was coming and the latter weeping told them about the incident implicating the respondent for it who was following him. These witnesses then caught hold of the respondent and took him to the police station where the complainant also went and lodged his report. P. Ws. Sher Muhammad and Muhammad Ismail are also closely related to the complainant but I have to say once again that they cannot be described as interested witnesses because these two persons also had no enmity or any grudge against the respondent so as to falsely implicate him. Thus, considering the entire evidence on record in my opinion the guilt against the respondent has been brought home to him.
The respondent is obviously guilty of the offence under section 377, P. P. C. and he has been wrongly acquitted of it by the lower Court. The lower Court while assessing the evidence of the complainant and P. Ws. Sher Muhammad and'Muhammad Ismail gave a finding that the complainant and these witnesses were all related inter se, therefore, they were interested witnesses as such they were unworthy of reliance. This finding obviously, although the witnesses are related inter se, would not stand because they could be only described as interested witnesses if they had some motive to falsely implicate the respondent for the offence with which he has been charged. The learned lower Court has been oblivious of the ruling of the Supreme Court whereby definition of an interested witness has been given. The lower Court then has reached the finding that none from amongst the attendants of the marriage function has been produced to testify to the preliminary data of the prosecution story, therefore, the prosecution story is unreliable. In my opinion this finding again is unsustainable because what the Court has to consider is the evidence already available on record and not that what has not and could not be brought on record of the evidence. Thereafter, the learned trial Court has held that there are substantial material improbabilities spread over the entire proceedings. By referring to these improbabilities it has been pointed out that P. W. Sher Muhammad has stated that when he was awakened by P. W. Mushtaq Ahmed, they all went in search of the complainant and P. W.
Muhammad Ismail met them on the way while P. W. Muhammad Ismail in his evidence says that he was awakened by P. W. Sher Muhammad and not that he met P. W. Sher Muhammad on the way.
This contradiction in my opinion is not material as such contradictions are likely to be found in the evidence even of truthful witnesses. If the main prosecution witnesses gave evidence parrot like it would then be inferred by the Court that the witnesses had remembered the facts by their pre- concert and some tutoring was also done to them. This finding also, therefore, is of no avail to the defence.
13. Next the lower Court has said that the complainant has stated that he was beaten by the respondent but no external injury was noticed on his person, but this finding also does not impress me as obviously the complainant does not say that he was caused injuries. He merely says that be was beaten and the respondent forcibly committed sodomy on him. The absence of any injury on the complainant, in my opinion, would not strengthen the defence case at all as no injury was caused to the complainant which could have been medically noticed.
14. Next, the lower Court has also reached the conclusion that although uratbal smear of the respondent and rectal smears of the respondent were preserved and sent to the Chemical Examiner, who opined that the two slids preserving the same were stained with semen but this according to the lower Court itself fades to insignificance in the absence of fixed liability to a specific individual which is imperative in a case under section 377, P. P. C. This finding by itself when read is to be rejected. The liability of the respondent has been established by the medical evidence as already discussed above and the allegations of the complainant against him. There can be no manner of doubt that the respondent was the person who committed the sodomy on the complainant forcibly. The learned lower Court next has given a finding that the pants of the respondent and the complainant although submitted to the Chemical Analyser were not found to be stained with semen, therefore, this factor went in favour of the defence but once again I have to say that this finding is to be rejected when read in itself. The fact that there was absence of semen on the pants of the respondent and that of the complainant would not by itself render the prosecution story unreliable in any way. The learned lower Court then has referred to three authorities which are reported as AIR 1930 Lah. 311, AIR 1947 All. 97 and AIR 1944 Nag. 245. But 1 find that none of these three authorities goes in favour of the defence as wrongly assumed by the lower Court. In the Lahore case there is nothing said about a case of sodomy, therefore, this ruling has no bearing upon the facts of the present case at all. In the Allahabad case it has been held that when the offence under section 377, P. P. C. was alleged to be complete medical evidence should be definite againit the accused and existence of semen marks on the accused's dhoti is not a decisive factor.
In this case obviously there is the medical evidence which is definite against the respondent and no semen marks were detected on the pants of the respondent. Therefore, this ruling is also of no avail to the defence and it has wrongly been given weight by the lower Court. The third case of the Nagpur High Court has also no bearing upon the facts and the circumstances of the present case as it merely says that in case of an offence under section 376 medical examination of the accused is desirable, and in this case the respondent/accused was medically examined as such I find that this ruling is also of no avail to the defence as wrongly assumed to be so by the lower Court. The learned lower Court then remarked in its judgment that there is no ocular evidence with the prosecution which has to rely on the circumstantial evidence only. But this finding obviously is contrary to the evidence brought on record by the prosecution particularly of the complainant which consists of the ocular testimony of the offence as the complainant is the victim boy himself and that is the most important piece of evidence against the respondent. It will, therefore, be seen that all the findings of the lower Court are unreasonable and manifestly wrong. When such is the case obviously the Appellate Court is duty bond to correct this error and reach a finding of guilty against an accused in an acquittal appeal vide Ahmed v. Crown (1).
15. Before I conclude I would like to refer to the defence evidence examined by the respondent consisting of three witnesses, namely, Taj Muhammad, Wali Muhammad and Muhammad Yakoob.
These three witnesses have tried to show in their evidence that the respondent was with them near about the time of the occurrence as such he could not be present at the scene of offence but obviously as will be discussed just now their evidence does not help the respondent at all. D. W. Taj Muhammad has said that on the night of the occurrence at about 11-30 a.m. he was having tea at Mama Hotel, Nawabad and the respondent was already sitting there. This witness has not given the distance of Mama Hotel from the scene of offence, therefore, although he stated the time to be 11- 30 p.m. when the respondent was with him the offence has been committed at about (2 a.m., when obviously the respondent could be present at the scene of offence. The next witness D. W. Wali Muhammad says that he did not know anything about the incident. The last defence witness Muhammad Yakoob has stated that about 10 months previously he was sitting in a hotel and it was about l2 o'clock in the night when the respondent was also sitting with him. Ismail came in and called him and took the respondent with him. Obviously this evidence also is of no help to the respondent as the time given is l2 o'clock and the date on which this occurred has hot been given too. The incident took place at about 2 a.m. and therefore, it is quite likely that the respondent had reached the function of marriage and the scene of offence at 2 a.m. easily. The defence evidence, therefore, is of no avail to the respondent at all. His learned counsel has also not pressed the defence evidence altogether in support of his arguments. lb. The respondent in his statement has alleged enmity with P. W. Muhammad Ismail, the relation of the complainant but he has not stated what enmity there existed between them nor P.W.
Muhammad Ismail has been questioned on this aspect at all. There is no defence evidence also to substantiate this allegation of the respondent as such his oral assertion only is of no help to him.
His other allegation that he did not know the complainant and has no knowledge at all about the sodomy committed upon him is only a natural statement which will come from him in support of his defence when he denies the prosecution case. His oral denial therefore, is of no consequence in the absence of any evidence to support it. The statement of the respondent, therefore, cannot be believed.
17. For the foregoing reasons it will be seen that the respondent is clearly guilty of the offence with which he was charged and he was wrongly acquitted of it. I, therefore, convict the respondent under section 377, P. P. C. and sentence him to two years' R. I. The respondent is on bail and his bail is cancelled and a non-bailable warrant shall issue against him remanding him to custody to serve out the sentence now imposed upon him. This acquittal appeal consequently is accepted and the respondent convicted as stated above. .