' Karim Bux son of Fateh Muhammad Gopang was tried by the Sessions Judge, Muzaffargarh on charges of kidnapping Kaleem Ullah son of Faiz Bux a young boy aged 13/14 years in order that he may be subjected to unnatural lust, an offence punishable under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and he was also tried on the charge of committing unnatural offence with the aforesaid boy an offence under section 377, P.P.C. He was convicted under section 12 of the Ordinance and sentenced to suffer R.I.
For seven years, to pay a fine of Rs,1,000 or in default to undergo further R.I. For four months and to ten strips of whipping. He also convicted him for offence of attempt of committing sodomy under section 377 read with section 511, P.P.C. And sentenced him to suffer R.I. For two years and to pay a fine of Rs,500 or in default to suffer further R.I. For two months. The appellant has filed this appeal against the aforesaid convictions and sentences.
2. The prosecution case against the appellant briefly stated is as under:- ' Kaleem Ullah minor son of complainant Faiz Bux was studying in 8th class in the Middle School Binda Ishaq wherein the complainant himself was also employed as teacher. Usually the father and son used to go to the school and came back home in village Mahal Khakhi on cycle belonging to the father. However, on the date of the incident i,e, on 6th June, 1981. Faiz Bux had to work overtime at the school and, therefore, told Kaleem Ullah to go home on foot. When Faiz Bux returned home in the evening of 6th June, 1981, he found the boy missing and started search for him. On the next day i,e, 7th June, he continued the search and made inquiries from his relatives at Noor Shah but in vain. In the evening of that day, however, Wali Muhammad, his neighbour, informed him that he had seen the appellant Karim Bux and the boy \Kaleem Ullah going together near Basti Nai towards Jhandewali, in the morning. The complainant continued search for the boy and on 9th June Master Hafeez Ullah who also works as teacher in the Middle School, Binda Ishaq, informed the complainant that he had seen his son with the appellant on 8th June in the morning at River Chenab Pattan. Thus, being more or less convinced that appellant had taken away his boy, he made an application to Superintendent Police, Muzaffargarh, through the Headmaster of his School which he personally took to Superintendent Police, Muzaffargarh on 10-6-1981. The aforesaid Police Officer marked it to S.H.O., Rohillanwali who on reading it asked him to take the same to Police Station, Shehar Sultan as the offence had taken place in the jurisdiction of that Police Station.
In the meantime Mehar Allah Dad, S.H.O. Police Station Rohillanwali recorded the complaint and got it signed by the complainant. The same was then sent to P.S. Shehar Sultan as the application which was endorsed to S.H.O. Rohillanwali by the Superintendent of Police, was retained at the aforesaid Police Station.
3. The complainant was summoned to Shehar Sultan Police Station on 24-6-1981 and he was given a copy of the formal F.I.R. Registered at that police station.
4. On 27-6-1981 the boy Kaleem Ullah came home alone and the complainant took him to Police Station Shehar Sultan on the same day. The Shalwar and Kamiz which the boy was wearing at that time were secured by the police under recovery memo. (Exh.P.C) and he was made to wear other clothes provided by his father. He was taken by a constable to Medical Officer, Shehar Sultan but as that functionary was not available the boy was ultimately medically examined by Medical Officer, Civil Hospital, Alipur.
5. The boy had informed his father that the appellant on the pretext to giving him pigeons of which he was found took him to Basti Nai where they stayed for the night near wheat stacks, he was then taken to Bhutawala Basti where the appellant committed sodomy with him. He was next taken to Multan and made to stay in a hotel where he again was subjected to sodomy. They stayed at the hotel where the appellant got employment and the appellant committed sodomy with him every night. Kaleem Ullah, however, slipped away on the evening of 26th June, 1981, and reached home next morning on 27th June, 1981.
6. S.I. Abdul Baig who was Incharge of Police Station, Shehar Sultan after registration of the F.I.R.
Took over investigation and recorded statement of prosecution witnesses under section 161, Cr.P.C.
On 27th June, 1981, he got Kaleem Ullah medically examined by Medical Officer, Civil Hospital, Alipur, namely Dr. Muhammad Afzal. He had taken two anal swabs, which he sealed in a phial and handed over the same to constable for delivery to Chemical Examiner for detection of semen.
7. On the same date S.1. Abdul Baig arrested the appellant from Kallarwali and got him medically examined by Dr. Syed Muhammad Ramzan Shah. After completion of investigation he sent up the appellant for trial.
8. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the allegations and took plea that he had been falsely involved in the case due to enmity as son of P.W. Wali Muhammad who had taken the appellant to Sargodha to work for him did not pay him proper wages for the same. He further stated that P.W. Kaleem Ullah was in the habit of leaving his house and loitering about and had left his house on the occasion himself and returned on his own. He further added that he had a fall from a palm tree and was injured and his left leg had been amputated by a doctor about 5/6 years before the incident. He, therefore, walks on one foot with difficulty and with the support of stick, and therefore, he further pleaded that he could not possibly cover long distance on foot, as alleged by the prosecution. He examined witnesses Wahid Bakhsh and Muhammad Ramzan in his defence.
9. After hearing the arguments of the learned counsel for the parties which were concluded on 4- 10-1983 and after going through the record, it was found that the evidence against the appellant was of interested witnesses and in view of the enmity of the complainant alleged by the appellant, the evidence against him was not free from doubt, specially as the version as given by the alleged victim namely, Kaleem Ullah was not corroborated by the evidence of Dr. Muhammad Afzal, who had examined him. As the Court time was over, the decision was announced by recording short order and the following are the reasons for the same:- ' Besides Faiz Bux complainant the prosecution Kaleem Ullah, the victim, and prosecution witnesses Wali Muhammad (P.W.6), Master Hafeez Ullah (P.W.7) and Nazar Hussain (P.W.8). There was also evidence of Dr. Muhammad Afzal, who had examined the victim, Dr. Syed Muhammad Ramzan Shah, who had examined the appellant. S.I. Abdul Baig, the Investigating Officer, and formal evidence of Police Constables Mumtaz Hussain, Rab Nawaz and Zaffar Hussain.
10. There is no doubt about the fact that the appellant was already known to complainant; Faiz Bux who is his distant relative. It is also apparent from the evidence of complainant himself that he is not at all well-disposed towards the appellant. The complainant Faiz Bux for obvious reasons was even reluctant to admit that the P.W. Wali Muhammad son of Haji Qadir Bux of his village who had informed him in the evening that he had seen Karim Bux taking away his son Kaleem Ullah was related to him and in his cross-examination he stated that Wali Muhammad is resident of his village but he is not related to him. However, he reluctantly admitted that Mst. Nemat daughter of his uncle Khan Muhammad is the wife of Wali Muhammad (P.W.6). Wali Muhammad (P.W.6) admitted in his cross-examination that he is related to Faiz Bux, complainant, as Khan Muhammad uncle of Faiz Bux is his father-in-law. Again witness Wali Muhammad admitted that the appellant is distantly related to the complainant and, therefore, he did not suspect foul play when he saw Kaleem Ullah going with the appellant. The complainant in his deposition stated about the appellant as under:- "I already knew that the accused is of bad character because in connection with abduction of a woman he was detected but he had sworn falsely about his innocence and then he was punished by nature by a fall from a palm tree and the tree itself fell upon him as a result of which his leg was broken. The accused is now with one leg as the other leg has been chopped off. He had broken his leg approximately 8 or 10 years before the present occurrence. The accused had general reputation of committing sodomy with the boys. I do not know if any sodomy case had earlier been registered against the accused or not."
11. With regard to the plea of the appellant that he was not paid wages by the son of Wali Muhammad whom he had given a beating resulting in the enmity, the complainant Faiz Bux admitted in hi cross examination that Abdullah is son of wali Muhammad but he denied that the case against the appellant had been registered due to enmity between him and Wali Muhammad.
12. Having observed the background of the relations of the complainant Faiz Bux with the appellant, it may here be stated that the evidence against the appellant is mainly that of boy Kaleem Ullah the alleged victim about the actual commission of the offence, the only other evidence is that of Wali Muhammad and Hafeez Ullah who had seen the appellant with the boy at one time or the other. For reasons already given Wali Muhammad is an interested witness as he is undoubtedly related to Faiz Bux and the plea of the appellant is that the case has been filed against him at his instance. Wali Muhammad in his deposition stated that he had seen the appellant and Kaleem Ullah going near Basti Nai Wali. He has not given the exact date on which he saw the appellant with the boy and has himself admitted that since the appellant is distantly related to Faiz Bux he did not suspect any foul play. Master Hafeez Ullah (P.W.7) who is admittedly colleague of complainant Faiz Bux stated that on 8-6-1981 he had seen the appellant and the boy going together towards river when he was returning from the house of his in-laws to his village. He has given his place of residence as village Shakar Bela, he stated that he was on leave and came back to the school on 9-6-1981, and on hearing about disappearance of the boy he has informed his father that he had seen the boy going with the appellant.
13. The testimony of these two persons who are admittedly interested witnesses does not directly connect the appellant with the commission of the alleged offence. The evidence against the appellant, therefore, mainly consists of the evidence of Kaleem Ullah, the alleged victim. At the outset it may be stated that Kaleem Ullah according to his own version and version of prosecution returned home alone on 27-6-1981 after his disappearance on 6-6-1981 which means that his return was after a period of 20 days or so. According to Kaleem Ullah this one-legged person took him along Suraj Mukhi crops of Basti Nai on the promise that he would fetch pigeons from across the river. According to Kaleem Ullah the appellant did not commit sodomy with him during that night and the next day he was going with the appellant to his relatives when P.W. Wali Muhammad met them in the morning at the time of Azan for morning prayer which was being given. From there the appellant took him to Jandewali and reached Faizpur at noon time, after they crossed river and reached Shaker Bela. That night too no sodomy was committed and in the morning at Patten P.W.
Hafeez Ullah saw them. They then crossed the river on a boat and reached Bhutta Basti where the sister of the appellant resides. They slept in the open ground outside and it is the allegation of the boy that the appellant committed sodomy with him that night. The evidence of Kaleem Ullah (sic) in some detail mentioned as it was plea of the appellant before the trial Court that a person in his condition cannot cover long distances as alleged. However, the statement of Kaleem Ullah that later on he was taken to Multan where he remained with the appellant for 15-20 days at a hotel where every night the appellant committed sodomy with him, is not only uncorroborated by the evidence of Dr. Muhammad Afzal but makes the version altogether absurd. According to Dr. Muhammad Afzal (P.W.10) Kaleem Ullah was sent to him for examination and he issued a certificate on 27-6-1981 i,e, after 21 days of the alleged taking away of the boy and he found only two injuries as under:-
(1) An abrasion 1" long at 11 o'clock position of anus.
(2) An abrasion 1/5" long at 6 o'clock position.
14. According to the doctor the aforesaid injuries on the anus could be caused by rubbing a stone on the anus and the duration of the injuries was only 2/3 days. It was further stated by the doctor that the injuries around the anus were superficial and minor and the anus was not patulous. The aforesaid evidence indicates that Kaleem Ullah was not a habitual catamite and in the opinion of the doctor penetration had not been completed but was if at all attempted.
15. It is obvious from the judgment of the learned Sessions Judge, Muzaffargarh that it was due to the aforesaid medical evidence that he convicted the appellant for the attempt to commit unnatural offence-. However, even with regard to the attempt there was further opinion of the doctor that injuries could have been caused by rubbing stone on the anus. If the evidence of the P.W. Kaleem Ullah, the alleged victim, is accepted about committing sodomy on him during several nights, the same is not at all corroborated by the testimony of the doctor. Added to this, it is apparent from the evidence of the boy that he cannot be considered as truthful witness. In the cross-examination his earlier statement before the police was used to contradict his statements in his deposition. Although he stated that he had mentioned before the police that he had informed the accused that he would accompany him after getting permission from his father, the Court on referring to his statement under section 161, Cr.P.C. Found that he had not so stated. Again although he stated that he had mentioned before the police that the accused kept guard over him during the night, his assertion was found to be wrong. Many such contradictions were proved from the record which make it apparent that he had been adding to the earlier statement made by him. For instance his further statement that he had informed the police that the accused had asked him to call him as uncle, was found to be incorrect. Again, the details about his having mentioned to the police that he slept in the open outside the house of the sister of the accused, was also not correct.
He had also not mentioned in the statement made before the police that he removed Rs,10 from the shirt of the owner of the hotel, although before the Court in cross-examination he stated that he had said so. In view of the aforesaid contradictions and inconsistencies the evidence of Kaleem Ullah cannot be considered as trustworthy, specially in view of the further circumstances that his version about the commission of the offence is not supported by the medical evidence.
16. In view of the plea of the appellant that he IS implicated due to enmity, the obvious delay in lodging of the F.I.R. Could not be overlooked. After the disappearance of the boy on 6-6-1981, the prosecution case is that Wali Muhammad (P.W.6) informed the complainant about seeing the boy in company of the appellant on 7-6-1981 and similarly it is prosecution case that P.W. Hafeez Ullah so informed him on 9-6-1981. An attempt was made to inform the police and an application (Exh.P.B.) was addressed to the Superintendent of Police, Muzaffargarh, dated 10-6-1981 which does not mention that information had already been given to the complainant by Wali Muhammad and Hafeez Ullah about the boy being seen in company of the appellant. The statement of the complainant (Exh.P.A.) was recorded after a delay of 14 days on 26-6-1981, for the first time. It is also observed that although the complainant, Faiz Bux has stated that S.I. Abdul Baig had secured the Shalwar and shirt of the boy and had sealed the same for being sent to the Chemical Examiner, there is no mention about securing of the clothes of the victim by the aforesaid witness, namely S.I.
Abdul Baig nor is there any evidence as to how the aforesaid clothes were received by the Chemical Examiner. However, there is a mention in the deposition of Dr. Muhammad Afzal (P.W.10) that the report of the Chemical Examiner (Exh.P.E.) showed that Shalwar and shirt were stained with semen. In the absence of evidence about the securing the Shalwar and shirt by the Investigating Officer and the chain of evidence regarding proper receipt of the items by the Chemical Examiner, report has no value.
17. The judgment of the conviction was recorded on 24th October, 1982, and the instant appeal was received on 25th May, 1983, which shows that the appeal is time-barred by 146 days. It is contended by Mr. Javaid Nawaz Chaudhry, the learned counsel for the appellant that the appellant was in jail and had given thumb-impression on the application for the appeal but had been sent late by the jail authorities. However, for the reason already stated the ocular evidence is not corroborated by the medical evidence and, therefore, it does not furnish the requisite corroboration for conviction for the offence alleged to have been committed by the appellant. In Bashir Ahmad v.
The State a decision of the Supreme Court reported in NLR 1981 (SC) Cr. 1, under similar circumstances delay of 159 days in filing jail appeal was condoned and leave to appeal was granted. The delay in the filing of the instant appeal is, therefore, condoned. The appeal is allowed and the conviction of the appellant Karim Bux son of Fateh Muhammad Gopang on the two charges is hereby set aside and he is given benefit of doubt and acquitted of charges. He should be released immediately if there is no other case pending against him.