Rab Nawaz (20/22 years) son of Khuda Bakhsh. Pias Hussain (18/19 years) son of Allah Wasaya and Tanveer (17/18 years) son of Muhammad Afzal residents of D.I. Khan City were tried by the learned Sessions Judge, D.I. Khan for an offence under section 377, P.P. C. And on conviction under the said section were sentenced each to seven years R.I. And a fine of Rs.1,000 or in default to undergo further two months S.I. Each. Aggrieved by their conviction and sentences Rab Nawaz has filed independent Criminal Appeal No.1 of 1987 while Piyas Hussain and Tanveer have filed joint Appeal No.2 of 1987. Since both the appeals are the out come of the same transaction I would like to dispose them off through this judgment.
2. Facts in brief as detailed in the F.I.R. Are that on 14-9-1985 at about 9-00 p.m. Zaffar Abbas, a boy of about 13/14 years, after purchasing some sweetmeat from Jan Bakers near Topan Wala Gate, while proceeding to his house passed through the Bazar he saw Piyas Hussain accused-appellant present at his milk shop along with two others and on seeing the complainant he came down the shop, caught hold of the bicycle of the complainant and took him towards his shop. The bicycle and the bag of sweetmeat were placed in the shop and Piyas Hussain along with his two companions forcibly took him at the Balakhana of the shop of Fiyas Hussain where the complainant Was threatened with dire consequences and subjected to sodomy by force.
Thereafter, the complainant was allowed to go and asked not to disclose the affair to anybody. The complainant took the bag of sweetmeat and mounted the bicycle towards his house and when, reached near the Thalia at Mohallah Joyanwala he was caught hold of by Naeem, Ghulam Shabbir and their 3rd companion, slaped him and asked him to accompany them and at Hussania Chowk he was taken to a Balakhana where Ghulam Shabbir was residing. Ghulam Shabbir and his companions took off his Shalwar and all the three one by one rubbed their male organs in the thighs of the complainant and Naeem took his photograph as well whereafter he was let free with threat not to disclose the affair to any one. The complainants, who was residing in the house of his maternal uncle, went to the said house and slept there without making reference to the incident to anybody. In the morning as usual the complainant went to the school and after the close of the school when he returned home he found his father there and informed both his father and maternal-uncle of what had happened whereafter he was taken to the Police Station and he lodged the report. This report was recorded in the Police Station City D.I.Khan and a case under section 377, P.P,C, read with Article 12 of the Hudood Ordinance was registered vide F.I.R.No.276 dated 15-9-1985. After registration of the case the three accused namely Piyas Hussain, Muhammad Naeem and Ghulam Shabbir were arrested on different dates by the local Police and the two companions of Piyas Hussain mentioned in the F. I. R. Were subsequently identified in an identification parade by the complainant as Rab Nawaz and Tanveer and the 3rd companion of Naeem and Ghulam Shabbir, was identified to be Bashir Hussain accused who too were arrested by the Local Police, After completing the investigation a complete challan was put in the Court of Sessions Judge, D.1. Khan who on the completion of the trial acquitted all the accused of the charge under Article 12 of the Hudood Ordinance and convicted Rab Nawaz, Piyas Hussain and Tanveer under section 377, P.P.C. And sentenced them as referred to above while Muhammad Hanif, Ghulam Shabbir air:, Muhammad Naeem were acquitted altogether.
3. I have heard the arguments of the learned counsel for the appellant and the learned Assistant Advocate-General on behalf of the State respondent and have also thoroughly examined the record of ice case.
4. Zafar Abbas complainant while appearing as P.W.1 reiterated the story as given by him in the F.I.R.
In cross-examination, however, he categorically stated that the persons who had committed sodomy upon him and had taken him with them to different 'Balakhanas' were not the accused present .In Court. He further illustrated that the accused present in Court were not tide persons who had committed sodomy upon him. With regard to the identification parade he asserted that the present accused were shown to him prior to the identification parade by the Police and he was asked to Jay hand or them in the said parade. He further went on to admit it was correct that since the real culprits were not identified by him and were not known to him, therefore, he did -not lodge the report promptly. He admitted it to be correct that he lodged the report against the present accused after consultations with his father and maternal-uncle. Khuda Bakhsh father of the' complainant appeared as P. W.3 and in examination-in-chief while he did not refer to the facts of the incident in cross-examination he stayed that he had not seen the occurrence but had derived it from one Imam Bakhsh. Fida Hussain maternal uncle of the complainant was produced as P. W.5 and in his examination-in-chief tie did not reiterate a single word towards the incident and confined himself only to have witnessed the taking into possession and packing into a sealed parcel of the 'Shalwar' of the complainant. In cross-examination, however, he stated that Zafar Abbas complainant had come to him in his shop whereafter he accompanied him to the Police Station for lodging the report. He further went on to say that he was still present in the Police Station when P.W. Khuda Bakhsh i.e. Father of the complainant also arrived there. This is in nutshell the prosecution evidence on which the learned trial Judge has convicted the three accused- appellants and has acquitted the remaining three co-accused. The learned trial Judge, was of the view that the concession given by the complainant would not leave the accused free of charge because they committed an offence of sodomy with a school going boy in most cruel and insulting manner. The learned trial Judge was of the view that if they were not the real culprits their names would not have been inserted on suspicion in the F.l.R., because in the- case of Zina, according to the learned trial Judge, accused and the victim are so close to each other which leaves no room to doubt the identity ode the accused. No doubt the complainant did mention the naves of certain accused in his F.IV but as referred to 1A above at the trial he has in clear words stated that the accused present in Court were riot the real culprits and he had identified them at the behest of the Police. Be that as it may. It is well established that first information report 1s not the substantive piece of evidence and unless the prosecution is able to establish its case beyond any reasonable doubt, only on the basis of the first information report conviction cannot be recorded. In Ghulam and another v. Mureed reported asi PLD 1977 Lah. 1103 it was held that:- ---In such a situation where the eye-witnesses speak in two deferent voices in the same breath, the obvious inference would be that they are not witnesses of truth.
Taken on their own words, these witnesses have themselves demonstrated to be unreliable and have made their veracity doubtful. In any case strong corroboration from independent source would be necessary before acting upon one part of such statements and rejecting the other.".
These observations were based on the remarks of their Lordship of the Supreme Court in Sairan's case reported as PLD 1970 SC 56 which are to the following effect:- "The learned Judges of the High Court were not right in maintaining the conviction and sentence merely relying on the statements made by the witnesses in their examination-in-chief. Their failure to consider the evidence of each witness in its entirety and. The pertinent facts elicited by cross- examination, in fact, amounted to misreading of the evidence and this caused miscarriage of justice."
Even if for the sake of arguments. The story given by the complainant in his examination-in-chief and in the first information report is believed to be true it is full of infirmities. The complainant in his first information report and in his statement in examination-in-chief at the trial stated that after returning from his school on the following day of the occurrence he found his father along with his maternal-uncle present in the house of -the latter to whom he narrated the incident who took him to the Police Station w here he lodged the report. Khuda Bakhsh father of the complainant however averred that he derived the knowledge from one Imam Bakhsh on the following day of the occurrence and that by that tine he was not informed by his son. Fida Hussain maternal-uncle of the complainant gave altogether a different version by saying that Zafar Abbas complainant had come to his shop and from there he accompanied him to the Police Station for lodging the report.
He went on to say -that he along with Zafar Abbas were still present in the Police Station when.
Father of the complainant also arrived there. Thus, on material particulars the complainant is contradicted by the other prosecution witnesses who were contradicted inter se as well and thus, the prosecution case as given in the F.I.R. Which prevailed upon the trial Court to base conviction is not corroborated. In Abdul Wahab and another v. The State reported as 1985 P Cr. L J 771 it was held that:- "For these reasons I am of the view that it would not be in accordance with the safe administration of justice to place implicit reliance on the uncorroborated testimony of Muhammad Aslam. To disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credit of the witness that may make the entire statement doubtful."
The charge, levelled by the complainant against the accused-appellant is not even corroborated by the medical evidence because if six persons are charged ford committing sodomy upon a boy of 13/14 'years and that too perforce the natural presumption arises that he must receive at least slight grazing marks on his elbows and knees or on some part of his body -but, the medical evidence reveals that no marks on the elbows and knees were found by the Doctor. It, therefore, goes a long, way to suggest that the statement of the complainant goes totally uncorroborated.
5. The occurrence has been alleged to have taken place at 9-00 p.m. On 14-9-1985 while the report was lodged on the following day at 2-00 p.m. No explanation whatsoever has been given to prevent the complainant to lodge the report at the earliest opportunity. In a case of such nature it often happens that to protect the honour of the family people do lodge report after due consultations with the relations of the victim but in this case even that possibility is not available because Fida Hussain maternal-uncle of the complainant in clear words stated that it was 1-00 or 1-30 p.m. On the following day of occurrence that the complainant for the first time apprised him of the incident. One fails to understand that if the complainant was apprehensive of the threats by the accused party not to disclose the affairs to anybody and he did act upon that advice how suddenly the fears in his mind disappeared and after about 17 hours of the occurrence he was mentally prepared to narrate the incident to his maternal-uncle and thereafter to lodge the report.
The delay in lodging the F.I.R. Also casts doubt on the prosecution case because the chances of substitution of, the real culprits for the accused appellants or to entangle as many people as possible after due deliberations and consultations cannot altogether be excluded from consideration.
6. For these reasons I feel unable to maintain the convictions of the accused-appellants and accordingly accepting both the criminal appeals I set aside the convictions and sentences of all the three accused-appellants. And direct that they should be set free forthwith if not required in any other case.