Ch. MUHAMMAD SIDDIQ, J.----The learned Sessions Judge, Attock vide impugned judgment, dated 2-3-1985 held Muhammad Nawaz and Sarfraz alias Kala accused guilty under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo R.I. For 10 years plus whipping numbering 15 stripes and a fine of Rs.5,000 or in default of payment of fine further R.I. For one year. The trial Court further found both the accused guilty under section 377, P.P.C. And sentenced each of them to undergo R.I. For 10 years plus fine of Rs.3,000 or in default of payment of fine further R.I. For one year.
Both the substantive sentences of imprisonment were ordered to run concurrently. Muhammad Nawaz convict has challenged his convictions and sentences through Criminal Appeal No. 61/1 of 1985 while Sarfraz alias Kala convict has filed a separate Criminal Appeal No. 62/1 of 1985. Since both these appeals arise out of the same impugned judgment, they shall be disposed of together by this judgment.
2. In support of its case the prosecution produced 10 witnesses, Dr. Sultan Mahmood (P.W.1) on 6-6- 1984 at 5-45 a.m. Medically examined Hamid Tafseel and found the following injuries on his person:- "(1)An alleged case of sodomy on 5-5-1984, there are no stains on clothes; (2)An abrasion 1.5 x 0.75 c.m. x 0.75 c.m. On the posterior aspect of left elbow joint; (3)Two small abrasions 1.5 c.m. x .75 c.m. And 1 c.m. x .25 c.m. On the back of chest left side in the scapula region; (4)A small abrasion .5 c.m. x .25 c.m. On the posterior aspect of right elbow joint.
(5)There was no mark of any violence around the anal region; (6)The anal canal is congested and there are minute abrasions in the external anal sphincter; (7)Three anal swa bs taken from the anal region, put in the bottle sealed properly and handed over to the police for onward transmission to the office of the Chemical Examiner, Lahore for analysis and intimation of result.
"According to the report of the Chemical Examiner mark 'X' No. 3147/S, dated 1-8-1984 the above swa bs were stained with semen. Exh.P.A. Is the carbon copy of my medico-legal examination report which is in my hand and is signed by me."
3. Dr. S.M. Hussain Naqvi (P.W.2) on 7-6-1984 at 11-00 a.m. Medically examined Sarfraz accused. The doctor on examining him made the following observations:- "The examinee was a young man of about twenty years, possessed well-built physique. His testicles were well-developed. His penis was also well-developed. I observed the erection of his penis which was normal. Ejaculation was caused and collected his semen for analysis by the Chemical Examiner. Sarfraz was capable of performing sexual intercourse."
4. H.C. Afzal Khan (P.W.3) was at the relevant time posted as Muharrir Head Constable at Police Station, Saddar Attock. On 6-6-1984 Raja Abdul Khaliq, S.H.O. Gave him a sealed parcel containing Shalwar, one sealed bottle and an envelope for keeping them in his custody. On the following day the said police officer again gave him a sealed bottle and an envelope and the witness kept all these articles to the Malkhana. On 27-6-1984 he gave all these articles to F.C. Faqir Muhammad for taking them to the office of the Chemical Examiner, Lahore. According to this witness, so long as these articles remained in his custody, nobody tampered with them. F.C. Faqir Muhammad (P.W.4) on 7-6-1984 took Hamid Tafseel, P.W. To D.H.Q. Hospital, Attock for his medical examination, produced him before Dr. Sultan Mahmood who examined him. After the examination, the doctor gave him a sealed parcel containing Shalwar, one sealed bottle and an envelope which he produced before the Investigating Officer. On 27-6-1984 Muharrir Head Constable, Afzal Khan P.W.
Gave him a sealed parcel containing Shalwar, two sealed bottles and two envelopes for taking them to the office of the Chemical Examiner, Lahore which he delivered there the following day. So long as these articles remained in his custody nobody tampered with them. In cross-examination, it is admitted by this witness that Muhammad Afzal Khan, M.H.C. Gave to him other parcels of other cases also on 27-6-1984. These parcels were lying on a table in the office of M.H.C. When he gave them to the witness. F.C. Said Rasool (P.W.5) joined the investigation of this case and went to the spot alongwith the Investigating Officer who took into possession a piece of the string of the Shalwar EXh.P.1 from there, vide memo. Exh.P.C. Signed by him. In cross-examination, this witness has stated that he went to the spot at 5 p.m. He and the 'Inspector Police alone went there on a Suzuki which was driven by a driver.
5. Raja Abdul Khaliq, Inspector/S.H.O. (P.W.6) is the Investigating Officer in this case. He has deposed that on 6-6-1984 he correctly recorded F.I.R. Exh.P.D. After recording the report this police officer sent Hamid Tafseel, P.W. Under the escort of Faqir Muhammad, F.C. To D.H.Q. Hospital for his medical examination. After the examination, Faqir Muhammad, F.C. Brought to him a sealed bottle, an envelope and produced the same before him. Hamid Tafseel, P.W. Produced before this witness his Shalwar Exh.P.2 which was taken into possession, vide memo. Exh.P.E. In the presence of Muhammad Arif, P.W. Who attested it. He made it into a sealed parcel. He inspected the spot and prepared its site plan Exh.P.F. Signed by him. During the inspection of the spot he took into possession piece of string Exh.P.1 from there, vide memo. Exh.P.C. He arrested the accused on 6-6- 1984 and got Sarfraz accused medically examined from D.H.Q. Hospital, Attock on 7-6-1984. The doctor gave him a sealed bottle and an envelope after his examination. All the parcels, sealed bottles and envelopes were given to Afzal Khan, M.H.C. Keeping them in the Malkhana and for transmitting them to the office of the Chemical Examiner for analysis. During the investigation of the case, he seized wagon No. RIK-7953, vide memo. Exh.P.G. He attested all the memos. Correctly and recorded the statements of the prosecution witnesses. He prepared injury statement Exh.P.H.
Of Hamid Tafseel, P.W. In cross-examination, this police officer has stated that he seized Shalwar Exh.P.2 at 8 a.m. On 6-6-1984 and he got Hamid Tafseel medically examined on that day at about 4 a.m. He took Shalwar into possession at the police station in the presence of Muhammad Arif, P.W.
He has admitted that in memo. Exh.P.E. The words "Gawah-shud" were given against which no name was written. He denied the suggestion that the doctor sent to him Shalwar Exh.P.2. Through the F.C. He went to the spot at about 10 a.m. In the morning. F.C. Said Rasool was with him.
6. Aftab Ahmad (P.W.7) has deposed that he was carrying on his business of tailoring at City Attock at the shop of Muhammad Arif, P.W. Hamid Tafseel complainant also worked there as tailor with him. On 5-6-1984, this witness and Hamid Tafseel P.W. Broke their fast at the shop of Arif situated at Attock City and thereafter at about 7-45 p.m. They stopped doing their work. They came to the wagon stand. Hamid Tafseel, P.W. Boarded a wagon from there for his village and the witness returned. Muhammad Nawaz accused was the driver of the wagon. Sarfraz accused was sitting on the front seat of the wagon. Two or three passengers were also sitting in the wagon. The wagon did not start in the presence of this witness. In cross-examination, this witness has stated that he knew Muhammad Nawaz accused previously because he had travelled in his wagon from Mirza to Attock City previously. The witness also knew Sarfraz accused because he used to drive a tractor.
Sarfraz accused was not on friendly terms with this witness. The witness learnt about his name at the hotel where he used to sit for taking tea. Muhammad Nawaz accuses belonged to village Sanjwal. He did not know the name of his father. Sarfraz accused also belonged to village Sanjwal.
It is admitted by him that wagon continued leaving the stand for different villages till late in the night.
7. Muhammad Arif (P.W.8) is the maternal-uncle of complainant Hamid Tafseel. This witness joined the investigation of this case. The Investigating Officer took into possession Shalwar P.2 of Hamid Tafseel, P.W., vide memo. Exh.P.E. Attested by him. The Investigating Officer also seized piece of string Exh.P.1 from the spot in his presence, vide memo. Exh.P.C. Signed by him. In cross- examination, this witness has admitted his relationship with the complainant. He has further admitted that Aftab P.W. 7 is also his pupil. It is further admitted by him that Ramzan P.W. Is the husband of the niece of Muhammad Ayub, P.W. The Shalwar was taken into possession in the early hours of the night after the occurrence. He did not know if it was taken after the medical examination of the complainant or not. It was about Sehri time.
8. Muhammad Ramzan (P.W.9) has been disbelieved by the trial Court. The last witness produced by the prosecution is Hamid Tafseel, complainant. He has' deposed that he was carrying on his tailoring business at the shop of his uncle Muhammad Arif which was situated in Civil Bazar, Attock.
He used to go daily from the village in the morning and used to return to his house in the evening.
Aftab Ahmad, P.W was also working there as tailor with him. On 5-6-1984, he closed his business in order to return to his house at Sanjwal. At about 8 p.m after Aftari, he came to wagon stand. Aftab Ahmad, P.W. Was with him and had come there to see him of. The complainant boarded wagon 'him RIK-7953 which was driven by Muhammad Nawaz accused and Sarfraz accused was sitting at its front seat. No other person was sitting in the wagon at that time. Three passengers came there and boarded the wagon. When the wagon started both the accused talked to each other which the complainant did not follow. On reaching near the village Sanjwal the complainant requested the driver to stop the wagon but he told him that he would return thereafter visiting the other village and would then let him get down from the Wagon. One passenger alighted near the Kass whereas the two other passengers got down in village Kawwa and thereafter they returned. When the wagon reached near Dhok Tarbethi, Muhammad' Nawaz accused stopped the wagon and told the witness that he would not go to village Sanjwal as he had to go to Dhok. Despite his request the driver did not agree to take the complainant to village Sanjwal on his wagon. The complainant got down from the wagon. Sarfraz accused also got down from the wagon and started following him.
Muhammad Nawaz accused called out of him that he should do his work on that day. After a little while Sarfraz accused joined him and requested the complainant to allow him to commit sodomy with him. The complainant refused. He then held out threats to the complainant and forcibly committed sodomy with him after felling him on the ground. He broke open the string of his Shalwar and after committing sodomy the accused ran away leaving the complainant there.
Muhammad Ramzan, P.W. Met the complainant on his way to the village and lie told him about the occurrence. He took him to the house where he narrated the story to Muhammad Ayub P.W. His father took him to the police station where he lodged the report Exh.P.D. Signed by him. The Thanedar sent the complainant to hospital for medical examination where he was examined.
Thereafter, he produced his Shalwar P.2 before the Thanedar who took it into possession vide memo. Exh.P.E. His broken string of Shalwar dropped at the spot which was EXh.P.1. In cross- examination, he was confronted with his police statement Exh.P.D. Where he had not mentioned certain things which he had deposed before the trial Court. In cross-examination, this witness has stated that the place of occurrence was at a distance of 200 yards from the wagon stand. Sarfraz accused committed the offence with the complainant at a slope situated at a distance of 4/5 feet from the metalled road. A Behk was situated near the place of occurrence about 400 yards. The complainant already knew both the accused as they belonged to his village. He denied the suggestion that he accompanied the accused in the wagon beyond the village with his consent.
He did not raise any alarm when the accused did not allow him to get down from the wagon near his village. He has denied that he was immoral and had falsely involved the accused in this case. It is further denied by him that he was habitual victim of the alleged offence.
9. Sarfraz alias Kala accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. When asked why this case was made against him, he stated as under:-- "My house and that of the parents of Hamid Tafseel P.W. Are situated in one and the same street in village Sanjwal. Generally there is a dispute between the families due to struggle between our children. The parents of Hamid Tafseel P.W. Were, therefore, annoyed with me and other members of my family. The father of Hamid Tafseel P.W. Is a hot tempered person. On the night of occurrence Hamid Tafseel P.W. Came to the house late. When his father admonished him he falsely attributed the allegation of sodomy against me."
Muhammad Nawaz accused also in his statement denied the prosecution allegations and stated that he had been falsely involved in the case for the reason given by his co-accused Sarfraz and with a view to strengthen the case. The accused persons produced no evidence in defence:
10. The trial Court, vide impugned judgment, dated 2-3-1985 convicted and sentenced both the accused persons as mentioned above.
11. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record.
12. It is vehemently contended by Mr. M. Bilal the learned counsel for the appellants that the charge as framed does not make out any case against Muhammad Nawaz- accused under section 377, P.P.C. To appreciate this point, it is necessary to reproduce below the charge framed by the learned trial Court:- "CHARGE I, Mian Habib-ur-Rehman's, Sessions Judge, Attock hereby charge you (1) Sarfraz alias' Kala son of Misrey Khan, (2) Muhammad Nawaz son of Sher Khan, both Awans by caste resident of Sanjwal, P.S. Hazro, as under:-- (a)That on 5-6-1984 at 8 p. m. When Hamid Tafseel son of Sub. Muhammad Ayyub boarded wagon No. RIK-7953 for his village Sanjwal you both Muhammad Nawaz and Sarfraz alias Kala accused in collusion with each other did not allow him to get down from it at the place of his destination and took him ahead towards Dhok Tarbethi and thus committed an offence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is within cognizance of this Court.
(b)That during the same night when Hamid Tafseel son of Muhammad Ayyub P.W. Got down from the wagon near Dhok Tarbethi you Sarfraz alias Kala accused accompanied him for some distance end thereafter forcibly, committed sodomy with him under threats and thus committed an offence under section 377, P.P.C. Which within cognizance of this Court.
And I hereby direct that you both be tried by me on the aforesaid charges."
After the perusal of the above charge, the learned State counsel frankly admits that no case has been made out against Muhammad Nawaz under section 377, P.P.C.
13. It is further argued by the learned defence counsel that section 12 of the Ordinance is not attracted in the circumstances of the case as the ingredients of kidnapping or abduction have not been established in the case. Again the learned State counsel could not satisfy us how the charge of kidnapping under section 12 of the Ordinance has been established against the accused persons because the complainant himself boarded the wagon and no restraint or force was used against him when he wanted to get down from the wagon. The defence counsel has cited several authorities of this Court in support of his argument that in similar circumstances section 12 of the Ordinance could not be attracted. The learned State counsel could not cite any authority to the contrary--rather he half-heartedly admitted the argument of the learned defence counsel.
14. Another argument advanced on behalf of the appellants is that the conviction of Sarfraz alias Kala under section 377, P.P.C. Was not maintainable. According to the defence counsel, neither the complainant nor any other witness has alleged that this accused either committed sodomy upon him or abetted the co-accused in the commission of that offence. The learned State counsel has not been able to point out any evidence--oral or documentary to substantiate the conviction of Sarfraz B alias Kala accused under section 377, P.P.C. It is rather surprising how this accused has been found guilty under the said section in the absence of any material on the record.
15. The learned counsel has pointed out that there is direct conflict between the ocular evidence and the medical evidence. Dr. Sultan Mahmood (P.W.1) has clearly stated that in view of statement of injury No. 5 in Exh.P.A. He could say that the act of sodomy was not committed on the examinee by force. The complainant on the other hand has alleged to the contrary.
16. It is argued by the learned State counsel that in the circumstances of the case, the testimony of the complainant Hamid Tafseel is sufficient to maintain the conviction of the appellants and the said testimony is corroborated by the medical evidence and the reports of the Chemical Examiner.
No doubt, in certain circumstances the solitary statement of the victim can be made the basis of conviction but each case depends upon its own facts. In the instant case, the statement of the complainant is rather belied by the medical evidence and the reports of the Chemical Examiner do not help the prosecution and do not provide the required independent corroboration. The medical evidence of Dr. Sultan Mahmood as mentioned above directly conflicts with the testimony of the complainant. As regards the reports of the Chemical Examiner Exh.P.J., Exh.P.K. And Exh. P.L. They have rather made the prosecution case highly doubtful. According to H.C. Afzal Khan (P.W.3) on 6- 6-1984 Raja Abdul Khaliq, S.H.O. Gave him a sealed parcel containing Shalwar, one sealed bottle and an envelope for keeping them in his custody. On the following day, the S.H.O. Again gave him a sealed bottle and an envelope and he kept all these articles in the Malkhana. On 27-6-1984 H.C.
Afzal Khan. P.W. Gave all these articles to F.C. Faqir Muhammad for taking them to the office of the Chemical Examiner, Lahore. According to F.C. Faqir Muhammad (P.W.41 on 27-6-1984 Afzal Khan, M.H.C. Gave him sealed parcel containing Shalwar two sealed bottles and two envelopes for taking them to the office of the Chemical Examiner, Lahore which he delivered there the following day.
Now let us see the reports of the Chemical Examiner. A perusal of Exh.P.J. Shows that the packet was received in the office of the Chemical Examiner on 12th of July, 1984 while according to Faqir Muhammad, F.C. (P.W.4) he delivered this packet in the office of the Chemical Examiner on 28-6- 1984. The learned State counsel is not in a position to explain this mistake about the receipt of the parcel in the office of the Chemical Examiner. It is suggested by the defence counsel that the possibility that this might be a different parcel of some other case cannot be ruled out. In any case, the prosecution cannot claim any benefit of such doubt or fusion. Similarity in Exh.P.K. The date of despatch is shown as 7 June, 1984 instead of, 27th June, 1984.
17. According to the medical evidence of Dr. Sultan Mahmood (P.W.1) there were no marks of any violence around the anal region of the complainant and accordingly the doctor opined that the act of sodomy was not committed on the examinee by force. In other words the defence counsel infers that the complainant can be presumed to be a consenting party in the commission of this offence, and, therefore, his testimony would require strong independent corroboration before any conviction is maintained on his testimony but admittedly no such independent corroboration is available on the record.
18. After taking into consideration the relevant facts and circumstances of the case, the cumulative effect created on our minds is that the prosecution case is highly doubtful and the guilt-of the accused persons has not been proved beyond reasonable doubt. It is not disputed that according to Islamic Jurisprudence benefit of doubt must go to the accused. We feel that in the circumstances of the case, H the appellants can legitimately claim the benefit of doubt in this case. Accordingly while giving benefit of doubt to Muhammad Nawaz and Sarfraz alias Kala appellants, we accept these appeals, set aside their I convictions and sentences and acquit them of the charge. They shall be released forthwith if not required in any other case.