' B.G.N. KAZI, J.Nasrullah Khan son of Muhammad Hayat Shaikh and Hamidullah son of Atta Muhammad caste Pathan, Police Constables belonging to Islamabad Police were tried by the Sessions Judge, Islamabad, on charges that they had kidnapped Muhammad Ibrahim son of Mehram Khan Awan a student of First Year in the Islamabad College and otherwise resident of Haripur Hazara, District Abbottabad on 19-8-1982 at about 11.30 a.m. 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 that both of them committed sodomy upon him--an offence punishable under selction 377, P.P.C. The learned Sessions Judge, Islamabad, convicted both the appellants under section 12 of the Ordinance read with section 377, P.P.C. And sentenced them both to rigorous imprisonment for three years each and to a fine of Rs,1,000 or in default to suffer further R.I. For six months each. They were also sentenced to whipping numbering 20 stripes each. Two separate appeals by each of accused appellants have been filed against the aforesaid convictions and sentences.
2. On behalf of Muhammad Ibrahim, Criminal Revision Petition has been filed against the aforesaid judgment of the learned Sessions Judge, Islamabad, on the ground that the sentences awarded to the aforesaid appellants are inadequate and should, therefore, be enhanced. The two criminal appeals and the revision petition are being dealt with in this judgment.
3. The prosecution case against the two appellants briefly stated is as under:- Muhammad Ibrahim son of Mehram Khan Awan resident of Haripur Hazara, District Abbottabad was a student of First Year in the local college which was closed for holidays and had gone home to Haripur Hazara. On 19-8-1982 he came to Islamabad to get information about his examination result for First Year and after ascertaining the same he was going back to Haripur Hazara and for that purpose he was waiting at the Pir Wadhai Adda to catch a bus, when he was approached by the two accused pretending to be C.I.A. Employees. They asked Muhammad Ibrahim to show them his identity card and on the boy doing so they showed their dissatisfaction about the genuineness of the card and told him that they wanted to verify his identity from the college. At that time they were in civil clothes and Muhammad Ibrahim asked them about their identity. Accused Nasrullah then caught him from his shirt and forced him to smell a handkerchief, on smelling which he started feeling giddy, sat down on the ground and lost his consciousness. When he regained consciousness, he found himself in a deserted place. Both the accused were present there, and they kicked him and asked him to stand up but he was unable to stand as his legs were trembling.
Both the accused pulled out knives and asked him to accompany them. They made him to walk for a fairly long distance in the deserted place. They then asked him to remove his Shalwar. At the time it was almost afternoon, he refused to remove Shalwar whereupon both the accused twisted his hands and brought them at this back, and pulled down his Shalwar forcibly. Lie was made to lie down on the ground, and first accused Nasrullah subjected him to sodomy and thereafter the other accused Hamidullah did the same. After that again Nasrullah subjected him to sodomy followed by Hamidullah. Thereafter they brought him back to Pir Wadhai Adda and threatened him to keep quiet. He then boarded the bus and came back to Haripur where he narrated the occurrence to his brother P.W. Abdur Rehman. On next day Abdur Rehman brought him to Islamabad in the morning and he reported the matter vide his application (Exh.P.A.) Police Station Industrial Area.
4. A.5.1. Fida Hussain of the Police Station received the application of Muhammad Ibrahim on 20-8- 1982. He drafted the formal F.I.R. As Exh.P.A./1 on the basis of the said application, and after registering it started investigation. Muhammad Ibrahim took him to the place of occurrence and also the place from which he had been taken by the accused to the place of occurrence. He prepared site plan Exh.P.N. He alongwith Muhammad Ibrahim and his brother were returning after inspection of the spot, when they came across Nasrullah Khan accused near the Railway Crossing Gate at Sarin Road. On seeing the accused Muhammad Ibrahim pointed him out to A.S.I., Fida Hussain who thereupon arrested Nasrullah accused. He then sent Muhammad Ibrahim to the hospital for medical examination.
5. Accused Nasrullah then led A.S.I., Fida Hussain and the police party to the place of occurrence and pointed it out. A.S.I., Fida Hussain prepared the Fard Nishan Dahe Exh.P.F. On 21-8-1982 A.S.I., Fida Hussain obtained remand of Nasrullah and got him medically examined on 22-2-1982. On the same day he arrested Hamidullah accused from Islambabad District Courts on receiving such information about his presence there. He also obtained judicial remand of Hamidullah and on 23- 8-1982 identification parade was held in the presence of Mr. Muhammad Ali, Magistrate Second Class, in which Muhammad Ibrahim picked him out. On 24-8-1982 the Investigating Officer took accused Hamidullah who was in jail custody who on interrogation took the police to a place on the Sarain Road under a tree of Phalai from which a knife was taken into possession vide Memo.
Exh.P.G. After completing the investigation he challaned the two accused before the Court.
6. At the trial beside the evidence of Muhammad Ibrahim the young victim (P.W.2) there was the evidence of Dr. Dilpazir Malik, Medical Officer, who medically examined the victim and also accused Nasrullah Khan. There was also the evidence of Dr. Muhammad Tariq, Medical Officer, who examined accused Hamidullah. Mr. Muhammad Ali, Magistrate Second Class was examined with regard to the identification test of accused Hamidullah by the victim. Besides the evidence of A.S.I., Fida Hussain the Investigation Officer (P.W.10), Head Constable Muhammad Yunus (P.W.5) and Constable Saifullah (P.W.1) gave evidence with regard to sealed parcel containing swabs which was sent to the Chemical Examiner, Government of the Punjab, Lahore.
7. Accused Nasrullah in his statement under section 342, Cr.P.C.Took the plea that it was incorrect that the complainant had identified and pointed him out to the police party near Railway Crossing Gate Sarain Road. According to him he was present at the Police Station and was got pointed out ultimately by the A.S.I. Fida Hussain through Muhammad. Ibrahim complainant. It was his further plea that the witnesses deposing against him were doing so under the influence of A.S.I. Fida Hussain who was inimical to him as he had refused to perform his private work.
8. Hamidullah accused in his statement under section 342, Cr.P.C. Similarly took the plea that prior to the holding of identification parade he was shown to Muhammad Ibrahim at Police Station and that he had been falsely implicated by the police as they were annoyed with him and had already placed him under suspension.
9. We have heard the arguments of the learned counsel for the parties and have also gone through the record of trial proceedings. There is no doubt about the guilt of the appellants as there is nothing urged by the defence counsel which could create any doubt about it. As already stated the main defence plea taken by the appellants who undoubtedly were Police Constables, is false implication at the instance of A.S.I., Fida Hussain/the Police Authorities. The aforesaid defence is hard to believe looking to the fact that two appellants themselves were members of the police force. Further plea that A.S.I., Fida Hussain was annoyed with Nasrullah due to his refusal to do his private work is not such an important matter which could have induced the aforesaid B police official to falsely implicate his subordinate on the charge which is punishable with death or rigorous imprisonment for a term which may extend to twenty-five years. The defence plea of Hamidullah appellant about false implication by police authorities is. Not even plausible. He has not specified the reasons why his own department') got him falsely implicated in case of such serious crime.
10. Besides no reasons whatsoever have been stated for the victim a young student of college agreeing to implicate them falsely at the cost of his own ignominy and injury to his reputation. The preferring of the charges against appellants involve injury to the male ego and dignity of the victim beside making him the object of redicule and pity.
11. Mr. Tariq Azam Chaudhry the learned counsel for the two appellants has raised the following contentions:-
(1) That there was delay in filing the F.I.R.
(2) That the pointing out of Nasrullah by the complainant does not amount to proper identification as also the pointing out of appellant Hamidullah in the identification test.
(3) That the medical evidence does not corroborate the evidence of the complainant. In that it is not sufficient to prove commission of sodomy.
(4) That in any case the two appellants being young men who have already lost their jobs in the police department were rightly given lenient sentence by the Sesssions Judge.
12. With regard to contention No,1, it is clear from the evidence of the complainant that he was brought to the Adda by the two accused ' and put on the bus going to liazara. It is obvious that the accused having committed bestial offence against his wishes did not want him to be loitering in the city where he could complain. To some authority or the other and were, therefore, anxious to send him away. The silence of the victim till he reached home can well be imagined having sufferred such shock and humility specially at the hands of the alleged C.I.A. Personnel. It is, therefore, clear that no significance can be attached to the delay in filing the F.I.R. Specially as no enmity of the victim has been alleged.
13. With regard to the contention No,2, the learned counsel has relied upon decisions reported in AIR 1925 Lah. 19 and PLD 1978 Kar.
593. Before discussing the aforesaid decisions on the point, it is necessary to refer to the facts of the instant case. The appellants indulged in impersonation, made the victim unconscious, took him to a far-off place in the Jungle, where he regained his senses, ordered him to take off his Shalwar while threatening him with knives with which would they were armed and one after the other committed the offence of sodomy upon him not once but twice. All these facts which have been brought on the record indicate that the victim had been in the clutches of the appellants for long time and in such proximity that he must have noticed their persons and faces very thoroughly. The further fact that while going with the Investigating Officer he pointed out accused Nasrullah also indicates that he very easily and definitely recognized one of the culprits and did not make any delay in pointing him out to the police. In Lal Sing v. Emperor, decision of Lahore High Court reported in A I it 1925 Lah. 19, F. Forde, J. Observed as under:- "The mere fact that a witness is able to pick out an accused person from amongst crowd does not prove the accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person."
14. This observation, however, cannot support the plea taken on behalf of the appellants by their counsel, inasmuch as there is the further observation explaining the first one which reads as under:- "The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused persons by sight."
15. It is apparent from the facts of the instant case already discussed that there is evidence of victim Muhammad Ibrahim about that about the crime committed by the two accused which is more than sufficient to show that he had fully opportunity to observe the accused persons from close quarters and, therefore, the further evidence with regard to pointing out of accused Nasrullah to the Investigating Officer and the picking out of the accused Hamidullah in the identification test is only corroborative of his evidence about the commission of the crime by the two appellants.
16. In Usman v. The State, a decision of the Sind High Court reported in PLD 1978 Kar. 593, similarly it was observed that in case where identification of culprits is doubtful for reasons of darkness or such other like situations, it facilitates to hold identification test to ensure that no innocent person is dragged in for reasons of previous enmity, hostility or ill-will between the parties. In the instant case however, offence took place in broad daylight and there is nothing in the evidence on record to show that the victim namely Muhammad Ibrahi had any ill-will or hostility against two appellants before the commission of the crime. We are, therefore, fully convinced that there has been no mistake of identity and further that the appellants had committed a heinous crime like carnal intercourse with the young boy who was the student in a local college.
17. With regard to contention No,3 'there is evidence on record of Dr. Dilpazir Malik (P.W.3) that the complainant had difficulty in walking and defaecation and that he had marks of violence around the anus on the right side of which was an abrasion. He further observed that anal canal was red and congested. There was triangular shaped laceration on mucous membrane. The Doctor after the examination collected the swa bs from anal canal and sent the same to the Chemical Examiner for report, which was positive as the swabs were found stained with semen.
18. The aforesaid opinion of the Medical Officer is definitely corroborative of the evidence of the victim and the only contention of the learned counsel for the appellant is that in Modi Medical Jurisprudence and Toxicology (14th Edition) at pages 348 and 349 eight signs have been mentioned in case of sodomy if the passive agent is not accustomed to it. In the aforesaid book sign No,1 mentions abrasions on the skin near the anus with pain in walking and on defaecation, as well as during examination. As already stated the aforesaid signs were observed by the Medical Officer. Sign No,2 in the Book is concerning the fact that owing to the strong contraction of the sphincter, the penis rarely penetrates beyond an inch and consequently the laceration produced on the mucous membrane within the anus with more or less effusion of blood which is according to the learned author triangular in nature. As already stated the aforesaid laceration was also pointed out by the Medical Officer. The third sign which is that blood may be found around the anus on the perinaeum or thighs, and also on the clothes is not of much importance in this case as the medical examination took place after a period of 26 hours. Sign No, 4 in the Book mentions that semen may be found in or at the anus, on the perinaeum or on the garments of the boy too young to have seminal emissions. This sign was very much present as the anal swabs sent to the Chemical Examiner were found stained with semen. Sign No,5 is about signs of a struggle such as bruises, scratches, etc. On his person. With regard to the aforesaid sign it is observed that in the instant case the boy as indicated in the evidence on record is thin and weak whereas the two appellants who dealt with him were hefty young persons of ages between 25 to 28 years armed with knives.
The question of his offering further resistance by way of struggle, therefore, does not arise in the instant case. The other signs mentioned at numbers 6, 7 and 8 have no significance in the instant case.
19. The learned counsel has made submission that the statement of the Doctor that it is possible that the congestion of the mucous membrane may be due to chronic dysentery, but in the circumstnaces stated there is no doubt about the fact that the medical evidence fully corroborates the assertion of the victim about the two appellants committing sodomy on him. The doctor was also put the question whether if the neck of a bottle is inserted in the anal canal then a triangular laceration can be suffered. However, in view of the fact that no enmity of the victim is at all alleged or made out, the question of causing the laceration only to implicate the accused does not arise.
As a matter of fact such questions which appears to have been put in cross-examination at the suggestions of the accused persons amount to adding insult to injury. To another question, put to the doctor, he stated that it is incorrect to suggest that if two grown up persons commit sodomy upon a slim person without applying lubricant repeatedly then the extent of damage would be more than shown in his report.
20. With regard to the only other contention raised on behalf of the appellants which is also plea raised against the Revision Application filed with regard to inadequacy of sentences, it may be observed that the sentences prescribed in section 12 of the Ordinance are death, or rigorous imprisonment for a term which may extend to 25 years and the section further prescribes the liability of fine and whipping not exceeding 30 stripes. In the instant case whipping numbering 20 stripes has been given but the learned Sessions Judge, Islamabad considered in circumstances that both the accused persons are in their youth and further they were bound to loose their employment in the police force after their convictions.
21. Mr. Kowkab lqbal the learned counsel for Muhammad Ibrahim petitioner however, while pressing the Revision Petition has pointed out that the learned Sessions Judge himself observed that both the accused were working in Police force at the time of occurrence and it was their duty to see that the people are protected against violence and crime but on the contrary they themselves outraged the chastity of a young boy and that due to this aspect of the case the accused deserve examplary punishment. The record of the case indicates that while accused Nasrullah was about 27 years of age, accused Hamidullah was 28 years old. This information is mentioned in the statements of the accused under section 342, Cr.P.C. which were recorded on 13-6-1984 and, therefore, even according to their own version they were aged about 25 and 26 years at the time of the commission of the offence.I Under the circumstances they were no longer entitled to any benefit even in the matter of grant of bail, having been charged with non-bailable offence punishable with death and not being under the age of 16 years. The age of the accused appellants, therefore, cannot be considered as the factor for showing leniency in the matter of sentences.
22. The only other point of their loosing jobs, in the Police Force could not have been considered if the sentences are of death but even otherwise looking to the circumstance that they were the members of the police force, a law enforcing agency exemplary punishment was indicated.
23. It may be observed that the learned Sessions Judge, in para. 10 of the judgment stated that he convicted both the accused under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, read with section 37.7, P.P.C. but in view of the fact section 12 aforesaid only provides for sentence for kidnapping or abducting any person in order that such person may be subjected or may be so disposed of as to but put in danger of being subjected to the unnatural lust of any person, there is no further provision that if actually sodomy is committed it could be punished under that section. For that reasons convictions under section 377, P.P.C. Which obviously still applies to punishment for sodomy, the section not having been repealed, sentence should have been separately awarded which has not been done in the instant case. We, therefore, dismissed the two appeals and maintaining the conviction modify the same by directing that the two appellants are convicted under section 12 of the Ordinance and sentenced to rigorous imprisonment each for 10 years and to pay a fine of Rs,1,000 or in default to suffer further R.I. For six months. The sentence of whipping numbering 20 stripes is also maintained. Fifty per cent of the fine, if realised will be paid to the victim namely Muhammad' Ibrahim. The appellants are further convicted under section 377, P.P.C. And sentenced to rigorous imprisonment for 10 years each. The sentences on two counts to run concurrently. In awarding the sentences of imprisonment the provisions of section 382-B have been kept in mind and considered.
24. The Revision Petition is accepted to that extent.
Appeal dismissed.