MUHAMMAD SIDDIQ J.--The Additional Sessions Judge, Gujranwala, vide impugned judgment, dated 24-6-1984 found guilty Azhar alias Kadu and Zika Ullah accused under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of the accused to undergo R.I. For 10 years plus whipping numbering 5 stripes. Azhar alias Kadu accused challenged his conviction and sentences through Criminal Appeal No. 117/L of 1984. According to the information supplied by the Office, co-convict Zika Ullah had not challenged his conviction and sentences through direct appeal or through Jail.
However, after hearing the counsel for the parties at some considerable length, we came to the conclusion that the case of co-convict Zika Ullah was identical and not in any manner distinguishable from that of the appellant. In the larger interest of justice and in exercise of our revisional jurisdiction under Article 203-DD, we issued notice to the State which was accepted by Mian Nusrat Ullah, the learned counsel for the State. This judgment will dispose of the criminal appeal as well as suo mots revision petition of Zika Ullah convict.
2. In support of its case the prosecution produced 5 witnesses. Dr. Khalid Mahmood P.W.1. On 2-5- 1983 at 3-40 p.m. Medically examined Abdul Hameed victim aged about 16 years and made the following observations:-- (1)No mark of any violence or fresh injuries on his person.
(2)Gait was normal.
(3)No laceration around the anal orifice.
(4)No laceration on the anal mucosa.
However, three anal swa bs taken and sent to the Chemical Examiner, Punjab, Lahore.
Final report will be given after report f nom the Chemical. Examiner received.
Vide Chemical Examiner Report No. 1256/P, dated 18-5-1983 the above swabs are not stained with semen. In view of the examination and the Chemical Examiner's report, no anal penetration has been done.
3. The same doctor on the same day at about 3-30 p.m. Medically examined Zika Ullah accused and found nothing to suggest that he was not capable of sexual intercourse. To a Court question the doctor replied that even if the semen was not found, nothing can be said with certainty whether the penetration was done or not.
4. The same doctor, on 7-5-1983 at 7-30 p.m. Medically examined Azhar alias Kadu accused and opined that he was fit for sexual intercourse.
5. Abdul Majeed (P.W. 2) is the real uncle of the victim Abdul Hameed. He has deposed that on the day of occurrence he had gone to do his labour in Mohalla Siraj Pura. While he was coming back in between Siraj Pura and Sharif Pura there were fields and Shetala was sown in those fields. He heard the cries from the said fields. After hearing the said noise he went to that side and saw that Zika Ullah accused had caught hold of Abdul Hameed victim and Azhar alias Kadu accused was committing unnatural offence with him. On seeing this witness both the accused ran away. In cross-examination this witness admitted his relationship with the victim Abdul Hameed. He stated that the, distance between Alam Chowk and the place of occurrence was about one mile to 1i miles. He was at a distance of about 10 to 20 yards from the place of occurrence when he heard noise. The occurrence took place immediately after the sunset. The passage by which he was coming was thoroughfare but at the time of occurrence no body else was passing through that passage. When the accused started running on seeing the witness, he followed them and tried to catch hold of them but after about two acres distance he fell down on the ground and he could not succeed in catching hold of the accused. Hameed P.W. Was also running with him to catch hold of the accused. While they were running some people who were also present there inquired from them as to what the matter was. He admitted that thereafter they came to their houses. He admitted that they had a meeting of their relatives about the occurrence but this meeting took only 10 minutes and then they decided to report the matter to the police. According to this witness the distance between police station and place of occurrence was approximately 1 and 1 -- or 2 miles. The reached tile police station at about 11-12 noon. After the police station, he alongwith, victim Abdul Hameed and the police constable went to the hospital. He denied the defence suggestion that since the victim was his nephew, therefore, he was giving false evidence. He further dented the suggestion that near. Model School, there was a tonga stand. According to him the tongs in which victim Hameed was taken to the place of occurrence was owned by Zika Ullah accused. He stated that the height of Shatala at the place of occurrence was approximately one foot and 1 -- feet. He denied the defence suggestion that because of elections wilt, the accused he was giving false evidence.
6. Abdul Hameed victim was examined as P.W.3. At the relevant time his age was about 16 years. He has deposed that on the day of occurrence he went to see his Phuphi. When he was coming back at about 4-30 p.m. And reached near Chowk Goray Shah both the accused namely, Zika Ullah and Azhar alias Kadu forcibly and against his wishes got him into tongs. They took him to a Sheller near the bypass and both the accused committed unnatural offence with him. After about 2 hours his uncle Abdul Majeed P.W. Reached the spot and on seeing his uncle both the accused ran away.
Next day he gave an application Ex. P.C. To the police officer near Chowk Goray Shah. In cross- examination it is admitted by this witness that the place wherefrom the accused got him into tonga forcibly was a thoroughfare and most of the time many tongas were there. The witness volunteered that the accused getting- him into a tongs had threatened him. They reached the place of occurrence (Sheller) at about 5 p.m. Although he met many people on the way yet since the accused had threatened him to murder him, he kept quiet. The distance between the Sheller and the road was approximately half mile. There was one passage near the place of occurrence which was coming from bypass direction. The accused took him to a place where Shatala crop was present at about 5 p.m. He has stated that his uncle Abdul Majeed reached the spot at about 7-00 o'clock and they reached their house at about 11-00 o'clock at night, They went to the police station at about 10-00 a.m. In the morning. The distance between the Sheller and the police station was about half a mile. He went to the hospital on the same day for examination. He denied the defence suggestion that he had some difference with the accused because of last elections and, therefore, he had falsely implicated the present accused. It is further denied by him that because of old enmity, he was giving false evidence and implicating the accused Zika Ullah and Azhar alias Kadu accused.
7. H.C. Munir Ahmad (P.W. 4) is formal witness who on receipt of application Exh. P.C. Registered formal F.I.R. Exh. P.C /1.
8. A.S.I. Munir Ahmad (P.W. 5) is the Investigating Officer in this case. On the day of occurrence Hameed complainant submitted before him an application Exh. P.C. For registration, of the case against the accused. This Police Officer was on patrol duty at Chowk Goray Shah. He sent the same to the police station through constable for the registration of the criminal case which was Exh.
P.C./1. He recorded the statements of the witnesses under section 161, Cr.P.C. He visited the place of occurrence and prepared the rough site plan Exh. P. D He got the complainant and the accused medically examined. After the completion of the investigation he challaned the accused. In cross-- -examination he denied the defence suggestion that no incident had taken place and the present case had been registered against the accused at the instance of the complainant party. He has further deposed that he did not see any mark of resistance on the person of Abdul Hameed complainant.
9. Zika Ullah accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. According to him, the present case had been registered against him on account of enmity a result of election campaign. Azhar accused also in his statement denied the prosecution allegations and stated that the present case had been registered against him on account of enmity as a result of election campaign. The accused persons produced no evidence in defence.
10. The trial Court, vide impugned judgment convicted and sentence both the accused persons as mentioned above.
11. We have heard at length the counsel for the parties who hall, also taken us through the entire material available on the record.
12. Certain facts in this case are not disputed. The occurrence according to the prosecution took place at 4-00 p.m. On that day the, sunset time was 6-40 p.m. Chowk Goray Shah is a crowded place where there is great rush of passengers and tongas. According to the complainant although he met many people on the way yet he made no effort whatever to raise any alarm or protest against his forcibly taking by the accused in the tonga, because, according to him, he was threatened by the accused to keep quiet otherwise he would be murdered According to him, his uncle Abdul Majeed (P.W.2) reached the spot after about 2 hours. According to Abdul Majeed P.W.
Himself, the occurrence took place immediately after the 'sunset. No independent witness from the locality was associated with the investigation although many such people were available at the relevant time. The clothes of accused persons or of the complainant were not taken into possession to detect semen or the sign of greenness could be visible on the clothes of the accused and victim if rubbed against Shatala. The medical examination of the victim and the report of the chemical examiner does not advance the case of the prosecution. Abdul Majeed uncle of the complainant Abdul Hameed is not an eye-witness of the occurrence as he reached much later.
13. It is in the above circumstances that we have to see whether the prosecution has established the guilt of the accused persons beyond reasonable doubt. Mian Nusrat Ullah, the learned counsel for the State realising the weakness of the prosecution case, has contended that the testimony of the victim Hameed alone is sufficient to maintain the conviction of the accused persons. He further relied upon the inspection note Exh. P.D. Of the Investigating Officer to show that the Shatala crop was damaged at the place of occurrence. He, however, admits that this circumstance was not put to the accused under section 342, Cr.P.C. And, therefore, cannot be used against them. No doubt, in certain circumstances solitary statement of the victim can be made the basis of the conviction of the accused but each case depends on its own merits and it is the quality not the quantity of the witnesses which matters. Generalization in criminal cases is not possible. Each case is to be decided on its own facts. In the instant case we have to see whether the solitary statement of Hameed complainant is of that quality or standard which could justify the conviction of the accused persons. We have scrutinized this statement more than once and every time we entertain doubts about its bona fides. It does not inspire that amount of confidence which is required to maintain the conviction of serious case like the present one. His own conduct is also doubtful. He did not raise any alarm or protest in any manner although he had ample opportunity to do so.
Many people were available in. The vicinity but he does not convey his grievance to any one of them. We feel that it is not safe to base the conviction of the accused on his solitary statement without strong independent corroboration. We repeatedly asked the learned State counsel to point out any corroborative evidence from the record but he failed to do so. He could rely upon .The medical evidence and the report of the chemical examiner but in the instant case they do not help the prosecution. The result is that there is no other piece of evidence available on the record which could provide independent corroboration of the statement of the complainant. The prosecution has not been able to establish the guilt of the accused beyond reasonable doubt. We feel that the accused persons can legitimately claim the benefit of doubt in this case. Accordingly while giving the benefit of doubt to Azhar alias Kadu and Zika Ullah appellants we accept this appeal and the suo motu revision petition and set aside their conviction and sentences and acquit them of the charges. They shall be released forthwith if not required in any other case.