1. ' MUHAMMAD AFZAI. ZULLAH, CHAIRMAN.-This appeal through leave of this Court is directed against judgment, dated 2-4-1983 of the Federal Shariat Court; whereby on a criminal appeal the conviction of the appellant under section 377, P. P. C. With sentence of 10 years' R. I. And a fine of Rs, 1,000 was upheld, however the conviction of the appellant and one Sabir Ali under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (No, VII) of 1979, was set aside.
2. ' The prosecution case as contained in the deposition of Muhammad Sharif P. W. 6, who is the alleged victim, is as follows : "I am student of VIIth class. After school hours I used to learn Qur'an from accused Qari Hazoor Bux.
3. Accused Huzoor Bux present in Court is the same. Accused Huzoor Bux used to cut dirty jocks with me and on one night, therefore, accused Huzoor Bux took me to a public meeting. Since it became late in night therefore, accused Huzoor Bux took me to his Hujra and made me to sleep on his cot with himself and committed sodomy on me. Thereafter, he took oath from me on Holy Qur'an by keeping my hand on the Qur'an that I will not disclose this fact to anybody otherwise he will beat me harshly. Due to oath on Qur'an and fear I did not disclose this fact to my parents, family members or anybody else. After 7 or 8 days accused Huzoor Bux again called me at about 1.00 p.m.
4. Through P. Ws. Haroon, Sarfraz and Ghulam Ghaus and committed sodomy on me again in his Hujra. Accused Huzoor Bux made me lie down on the ground with my head towards `Kaba' and my feet towards the door of room. Accused Huzoor Bux put off his shalwar and my shalwar and committed sodomy on me by lying down over me. Accused Huzoor Bux committed full act of sodomy and was discharged. On my cry three boys P. Ws. Sarfraz, Haroon and Ghulam Ghaus who also learn Qur'an with me came and saw the incident. On 10-3-1982 accused Huzoor Bux sent a chit to me through P. W. Sarfraz asking me to meet him. I see a chit Exh. 6 it is the same which was delivered to me by P. W Sarfraz. On receiving this chit I went to see accused Huzoor Bux at 4 a.m. He asked me to run away with him from Korangi. I did not agree to it but accused Huzoor Bux threatened that he will disclose about my conduct to everybody and will cause disrepute to me and, therefore, due to fear of disrepute I agreed. Thereafter, accused sent me to Qasba Colony to house of his friend with accused Moulvi Sabir Ali present in Court. Accused Sabir Ali took me to Qasba Colony on a motor cycle. Accused Sabir had taken me to Qasba Colony at about 5-30 a.m. I remained for one night and one day in the house of that friend of accused Huzoor Bux. On Friday accused Huzoor Bux came to meet at about 4 p.m., he then took me away to Hyderabad in a bus.
5. We passed one night in Hyderabad in a hotel. Accused Huzoor Bux committed sodomy on me at Hyderabad. Then he took me to different places in the province of Sind and thereafter to different places in the province of Punjab. During this period he committed sodomy on me for 2/3 times. We were at Lahore when Allah Bux brother of accused Huzoor Bux met us who was in search of accused Huzoor Bux. From Lahore, Allah Bux, Huzoor Bux accused and I stayed in Madni Masjid Golimar for two days. We stayed in the Hujra of Masjid. Police raided on the Hujra of Madni Masjid and arrested accused Huzoor Bux and recovered me. Police prepared some documents at the time of my recovery and arrest of accused Huzoor Bux. Police recorded my statement."
6. ' This case as set up in the afore quoted deposition was sought to be supported by Sarfraz, Haroon and Ghulam Ghaus P. Ws. Mentioned therein as eye-witnesses of one incident of sodomy, and by the evidence of recovery of Sharif from the custody of the appellant. Evidence was also led in the statements of Muhammad Hanif the father of the victim and Sarfraz P. Ws. That chit P. 6 was sent by the appellant to summon the boy prior to his last disappearance. The medical evidence about both the accused and the victim was of not much value as according to the doctor he was unable to give a positive opinion.
7. ' The appellant in his statement gave details of the enmity and previous cases on account of which he asserted that he had been falsely implicated. It reads as follows :--- "I have remained Khateeb for five years in Jamia Masjid Darus Salam Korangi. After 1 year of my employment religious differences arose. Thereafter an attack was made on me with Churris during last Ramzan due to reciting of Slat-ed-Salam in the Mosque. I lodged F I. R. Of the incident at Korangi Police Station which was recorded by S. H.
0. Abdul Hafiz Qadri. Thereafter, 3 to 4 constables used to keep guard at my house for my security.
8. About 5 months ago from today a public meeting took place at Korangi No, 5 and during my speech in the meeting an attack was made on me. Police arrived in the meeting and the meeting was dispersed. Police left me at my house. Jama Masjid Darus Salam where I was Khateeb is the Mosque of Ahle. Sunnat Baralvi Sect. There are three other Mosques in the Mohalla, one is of Shia Sect, other is of Deubandi Sect and third one is of Ahle-e-Hadis Sect. Last year I went to perform Umra before Hajj. The Masjid Management Committee granted leave to me for one month. I came with delay of few days and on my return differences arose between me and the Management of Mosque. The Management demanded my resignation but the persons offering prayers in Mosque took stand that they will not leave me. I thereafter formed a parallel Managing Committee, and named that committee as `Anjuman-e-Thafuz-e-Muqame Mustafa'. I was patron-i-nchief of the Anjuman. After forming parallel Committee and `Anjuman we started meetings of Meelad-un-Nabi' in the Mohalla for 2 to 4 times in a week. My opponents from the other sects used to dislike these activities but I continued with my programme. P. Ws. Abdur Rehman, Abdur Rashid, Muhammad Bashir, Ghulam Hussain and Ghulam Sarwar were members of First Managing Committee of the Mosque, P. W. Abdul Rasheed was President of the Madrasa and Managing Committee. P. W.
9. Ghulam Hussain was Secretary of the. First Managing Committee. The difference between me and the First Managing Committee became very serious and they tried very much to oust me. During the Ramzan in the year 1981 they did not allow me to lead Travih Prayers. From Ramzan in the year 1981 they started throwing stone and filth in my house. They got theft committed twice in my house.
10. One day I had gone to Darbar of Ghazi Abdullah with my children at 9-00 a.m. I reached back at 2- 30 p.m. When I reached my house 1 found the lock of my door broken. I called the acting Imam Muhammad Shafi and Khadim of Mosque Ghulam Murtaza and asked from them and Manzoor Hussain Moazin of Mosque. They informed me that they saw P. Ws. Muhammad Sharif, Umar Draz and Sarfraz breaking lock of my house. I entered my house and saw that my Tape-record was missing, locks of two boxes were broken and some other articles of my family members were also missing. I complained the , matter to parents of these witnesses and told to them that if my property was returned I will not lodge F. I. R. With police on which they agreed for compromise and kept me on promises for two days. They did nothing and, therefore, I lodged F. I. R. At police station against P. Ws. Abdul Rehman, Haji Hanif, Sarfraz, Sharif, Abdul Rasheed and Ghulam Hussain.
11. Thereafter, police came and arrested all of them. It was Tuesday. After Maghrib prayers they returned from police station. On Wednesday P. W. Muhammad Sharif suddenly disappeared. About 2 weeks before his disappearance the parents of P. W. Muhammad Sharif had dis-continued his learning of Qur'an with me, because I had beaten him. He was student of School also and he was irregular in attendance at the school and Madrasa both. The parents of P. W. Muhammad Sharif made announcement in the Mosque also about disappearance of Muhammad Sharif. They continuously searched Muhammad Sharif and due to differences with me extended threats to me also and I always showed my ignorance. P. Ws. Abdul Rashid, Ghulam Hussain, Ghulam Sarwar and Abdul Rehman attacked me after Isha Prayers. I told them that I have implicated them on the saying of Imam, Moazin and Khadim of Mosque and I was prepared for compromise with them.
12. Thereafter, they prepared a Drama. They told to me that either I should stop disreputing them or they will level such allegation against me which I will remember for whole of my life. One day before my arrest I and Mohallah people heard that P. W. Muhammad Sharif was present at police station.
13. We heard that someone produced P. W. Muhammad Sharif before Nanney Khan president Jamat Ahle Sunnat and Zakat Ushr Committee who produced the boy before Abdul Hafiz Qadri S. H.
0. Korangi. I led Asr prayers on Saturday and thereafter Sub-Inspector Akbar Ali came to me with two constables and told that I was being called by S. H.
0. Abdul Hafiz Qadri. I was taken to police station where P. Ws. Abdur Rehman, Abdur Rasheed, Ghulam Hussain, Ghulam Sarwar, Muhammad Bashir, Haji Hanif and P. W. Sharif were also present. I was detained in police lock-up, where co-accused Moulvi Sabir Ali was already detained. After Maghrib prayers I was taken out of lock-up. Sub-Inspector Akbar Ali took me in his room and started interrogating me. He insulted me. He gave me beating and told as to why I levelled allegation against P. Ws. Abdul Rehman and others. He further told me as to why I did not leave the Mosque on their demand. I told him that since Mohalla people wanted me there, therefore, he should not insist for my leaving the Mosque. Thereafter, Sub-Inspector Akbar Ali started religious discussion with me. I told him to perform his own duty and not to indulge in religious discussion. P.
14. W. Akbar Ali Sub-Inspector told me that he was Ahle-Hadis and further told me that why I recite Slat-o-Salam by standing and why I kiss nails of my thumbs and if I have to do so I should keep some stool on the nail of thumbs and kiss them. On hearing this I admonished him. Thereafter, he detained me in lock-up for three days. Thereafter, he called me again in his room and told that he has taken some bribe from the other party however he would prepare a report under section 109, Cr. P. C. And would release me if I pay Rs, 5,000 to him as bribe. I refused to give bribe to him. He then informed me that he has turned out my brother and my family from my house and has put his own lock. My family then went to house of another Moulvi Sahib who is from my native place Dera Ghazi Khan. I was thereafter again detained at police station for 10 days more. Thereafter. Sub- Inspector Akbar recorded F. I. R. Against me. Thereafter, Sub-Inspector Akbar Ali obtained my signature on a paper. Thereafter I was sent to Civil Hospital for medical examination. I am innocent."
15. ' Elaborate defence evidence was .Produced to prove the plea reproduced above. It included amongst others the Pesh Imam Abdul Karim of Madni Mosque from where the police allegedly recovered the victim from the custody of the appellant. He contradicted the prosecution story.
16. ' The learned trial Court could not decide whether the chit Exh. P. 6 was in the handwriting of the appellant. However, it was found to be a case of enough evidence both on question of kidnapping and sodomy. The defence plea and defence evidence were rejected and the appellant and his co- accused were convicted and sentenced as noticed earlier.
17. ' On appeal it was found by the Federal Shariat Court that the charge of kidnapping and abduction was not established. Sabir Ali's conviction was set aside and appellant's conviction and sentence under section 377, P. P. C. Only were maintained.
18. ' Leave to appeal was granted to re-examine the evidence "so as to see whether the conviction in this case is based on accepted principles of appreciation of evidence".
19. ' We have gone through the record and have heard arguments addressed at the bar.
20. ' The F. I. R. Was lodged by Hanif P. W. The father of the boy, on 7th day of his disappearance. He was a grown up boy of about 15 years of age. It was not an ordinary disappearance. Search was made for him everywhere. So much so that Sarfraz P. W. Had also been contacted. He had before that stage allegedly seen the act of sodomy being forcibly committed by the appellant on the boy. He had also heard shrieks. He was then accompanied by Haroon and Ghulam Hussain. It is strange that for 7 days their friend was missing. They knew about the previous act of sodomy. Despite that they did not inform the complainant about sodomy nor of those witnesses having seen any such act. The bizarre explanation at the trial that the appellant had threatened them on 'the next' day not to disclose his conduct and also that they were made to say on the Qur'an that they would not disclose it, is unacceptable. Why did not they disclose it for 24 hours before the threat, is also not explained. This one day as also seven days on the second occasion make inordinate delay in the disclosure of the alleged offence. They are propped up witnesses. It is evident from their statements that they were made into eye-witnesses to corroborate Sharif's story after his so-called recovery. He had explained his long absence for some weeks by foisting it on the appellant. Further these boys, admittedly his friends, made the disclosure also weeks after his disappearance. It was not safe to rely on their statements nor the chit Exh. P. 6 around which they built an equally bizarre story. If these three witnesses are discarded then the chit Exh. P. 6 would lose any significance, because, as held by the Federal Shariat Court it was with the help of their testimony that the chit could be utilised.
21. ' Realizing the inherent weakness in the statements of the three eyewitnesses of sodomy, the Federal Shariat Court observed that even if it is excluded from consideration the testimony of Sharif P. W., the victim boy, was enough for conviction. It was ignored that he had all the qualities of a dishonest witness. He did not disclose his so-called liaison with the appellant for a long time prior to his disappearance. On his own showing he went around with the appellant to far off places in the provinces of Punjab and Sind. Nowhere did he disclose to anybody the fact that he was being kept as a victim by the appellant. It is only after he came in the hands of the police and his relatives, who had obvious animus against the appellant, that he came out with an unbelievable cock and bull story. This fact is demonstrated from an episode recorded in the judgment of the learned trial Judge.
22. This witness (Sharif P. W.) after recording his statement at the trial against the appellant went away with the brother of the appellant (who was then in custody). He stayed away from home for some time and one day appeared in Court with the defence counsel to support a deposition made by him in a duly sworn affidavit disowning the entire prosecution version and making a statement favourable to the appellant. The learned trial Judge instead of acting under section 540, Cr. P. C.
23. (Second part) and examining the boy straightaway, as it was an important development, started unnecessary argumentative clash with the lawyer on the assumption that the boy might have been coerced by the lawyer or his clients. Even if this were so he should have removed the boy to a neutral custody for some days before examining him. Instead he was again handed over to his parents to be brought again in Court. When he re-appeared he had by then changed his position for the third time, by making an other volta face. On that the defence offered that the boy be handed over to any neutral agency and then examined under section 540, Cr. P. C. (second part) but the learned Judge refused it-presumably, unfortunately though, on account of annoyance with the lawyer. A mandatory provision of law in second part of section 540, Cr. P. C. Was contravened without any justifiable cause. The decision of this Court in Muhammad Azam v. Muhammad lqbal and others (1), is clear in that behalf.
24. Coming to the effect of what is stated above, it is obvious that noncompliance with mandatory provision in section 540, Cr. P. C. Has in thisc case caused very serious prejudice to the accused. If Sharif would have been examined again as Court witness and cross-examined by both sides some more corners of his character might have been revealed. Be that as it may, the three positions changed by this witness during the same trial make him an unreliable person, particularly when as discussed earlier the conviction has mainly been based on his statement. The law regarding D such like witness was laid down in Qutba v. The Crown (2) and Adalat and another v. The Crown (3), to the following effect : "PLD 1954 FC 197 : ' The law requires that the benefit of such doubts should go to the accused persons. They cannot be resolved by mere assumptions regarding the motives by which witnesses might have been guided in making variant statements. Any indication that a witness has adapted his testimony in relation to any motive other than a desire to disclose the truth so far as is known to him throws a doubt on the statement which must go to the benefit of the accused, unless resolution of the doubt be possible with reference to other credible evidence or established circumstances."
25. "PLD 1956 FC 171 : ' A witness who had indulged in self-contradictions, saying in examination-in-chief that he had seen the accused clearly but adding in cross-examination that the accused had muffled their faces and it was by their stature that he had recognised them, whose version as to the weapon used in the murder and the situation of the gunshot injury conflicted with the medical evidence, was a basically dishonest witness and was giving evidence, with a motive other than stating the truth. Such a witness's version in the examination-in-chief was not necessarily wholly true. The doubt attaching to his evidence could not be satisfactorily resolved by the bare suggestion that he was won over."
26. In this case the infirmity in the testimony of Sharif P. W. Cannot be overcome by reference to any other reliable evidence. Accordingly besides the kidnapping and abduction the charge of sodomy also fails. The appellant is entitled to acquittal. This appeal is allowed and it is ordered accordingly.
27. The appellant shall be released forthwith unless ordered to be detained in any other matter.
28. Before closing this judgment it needs to be observed that in view of the finding recorded in this judgment, it is not possible to hold that the defence plea in this case was totally false. The order for the prosecution of the defence witnesses is therefore set aside.
29. (1)PLD 1984 SC 95 (2) PLD 1954 FC 197
(3) PLD 1956 FC 171