1. SHAFIUR RAHMAN, J.-- Two separate appeals by leave of the Court against the judgment of acquittal recorded by the Federal Shariat Court on 22nd of April, 1985 have come up for reappraisal of the evidence.
2. Hamid Tafazul (P.W.10) a young man of 18 years resided in Village Sanjwal, Tehsil and District Attock.
3. He was working at his maternal-uncle's (Muhammad Arif) (P.W.8) shop and was engaged, like him, in tailoring business. As was his routine, on the 5th of June, 1984 at the close of the business at about 8-00 p.m. After Iftari as it was the month of Ramazan, he boarded a Wagon No. RIK-7953 drived by Muhammad Nawaz, respondent in Criminal Appeal No. 3(S) of 1986. Sarfraz, respondent in other Criminal Appeal No.4 (S) of 1986 was also traveling in the same wagon. On reaching the bus-stand of his village Sanjwal, Hamid Tafazul requested Nawaz to stop the wagon. He did not do so but told him that he would drop him on the return journey which was soon to follow. After emptying the wagon of its passengers at village Kawwa the wagon started on its journey back and not at the bus-stand of village Sanjwal but somewhat earlier to it the driver stopped the wagon and told him to walk the distance to the village as he had some business there. Hamid Tafazul left the wagon under protest. Sarfraz respondent followed him and after forcibly opening the Shalwar committed sodomy with him by the roadside in the darkness of the night. Ramzan '(P.W.9) also happened to pass nearby and saw Sarfraz going away, identified him and was told by Hamid Tafazul about what Sarfraz had done. Hamid Tafazul walked to his house and in the company of his father Naib-Subedar Muhammad Ayub, now the appellant before us in the two appeals, he went to the Police Station, Sadar, Attock, at a distance of about ten Kilometers and lodged a report about the occurrence at 3-15 a.m. The medical report showed that sodomy had been committed on him and according to the doctor (Dr. Sultan Mahmood, P.W.1) there was no mark of violence around the anal region to suggest that it was committed by force or in spite of resistance. Anal swabs showed presence of semen.
4. The trial Court held that sodomy was committed but did not place reliance on the statement /identification of Ramzan (P.W.9.) or the recovery of Shalwar and its broken string. On the statement of Hamid Tafazul supported by the medical evidence and the Chemical Examiner's report, offence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and under section 377, P.P.C. Was held establised. For the first offence both the respondents were convicted and sentenced to 10 years' R.I., 15 stripes and a fine of Rs.5,000. For their conviction, under section 377, P . P. C . They were both sentenced to 10 years' R.I. And a fine of Rs.5,000.
5. On their appeal, the Federal Shariat Court held that none of the charges on which the two respondents were convicted was proved beyond reasonable doubt and giving them the benefit of doubt acquitted both of them.
6. Syed Muhammad Ayub Bukhari, Advocate, the learned counsel for the appellant contended that an apparent misreading of evidence by the learned Federal Shariat Court . Has resulted in serious miscarriage of justice. The misreading, according to the learned counsel for the appellant, is to be found in para. 14 of the judgment of the Federal Shariat Court wherein as regards Sarfraz alias Kala respondent, it was observed that "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". In fact, the complainant had at every stage of the proceedings stated that Sarfraz had committed sodomy on him. Ramzan also claimed to have seen this respondent while going away from the spot and to have been told immediately after the occurrence that he had committed sodomy on the complainant.
7. The other objection of the learned counsel for the appellant is to the so-called discrepancy noted in the date of the receipt of the sealed parcel containing anal swabs and the statement of Faqir Muhammad (P. W.4) who claimed to have delivered it in the Chemical Examiner's office on 28-6- 1984. The objection is that the identity of the sealed parcel was established. Faqir Muhammad (P.W.4) was not questioned about this discrepancy. From merely the date of the receipt of the parcel conclusions adverse to the prosecution were drawn.
8. Mr. M. Bilal, the learned counsel for the respondent on the other hand contended that as the record showed that the complainant was a consenting party, his testimony independently was not sufficient to make out the offence without independent corroboration. The evidence of the recovery of the Shalwar and the Chemical Examiner's report suffer from serious infirmities. The respondents were not questioned about the report and its evidentiary value against them. They were not examined on oath either as required under section 340, Cr.P.C. After its amendment. According to the learned counsel, the principles well-recognised for interfering with acquittal recorded do not justify interference with the judgment of the Federal Shariat Court.
9. So far as the appeal against Muhammad Nawaz, the driver of the wagon is concerned, we find that on the facts' stated no offence at all is made out. The first act attributed to him is of not stopping the wagon at the bus-stand of village Sanjwal though the complainant wanted to get down there from the wagon. It is the case of the complainant also that when he expressed his desire to get down from the wagon there, the driver told him that he would do so on his return journey which was soon to follow. This remark by itself suggests no criminality. The other is that he stopped the wagon on its return journey but stopped it earlier to that of village Sanjwal and asked the complainant to get down as he had some work there. This stop happened to be not far from village Sanjwal. This also would not suggest any restraint used by the accused respondent Sarfraz or criminal intent on his part. Finally, a remark is attributed to Nawaz calling upon Sarfraz to accomplish his purpose implying thereby the carnal intercourse which he had with the complainant. This is an inference which does not necessarily follow from the remark attributed to Nawaz. Apart from these three acts there is none else attributed to Nawaz to implicate him in the crime. For this reason, the appeal against his acquittal fails and is hereby dismissed.
10. As regards the other appeal, the Federal Shariat Court in para. 14 made the following observations:- "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 sustainable the conviction of Sarfraz alias Kala accused under section 377, P.P.C. It is rather surprising that this accused has been found guilty under the said section in the absence of any material on the record."
11. It is this observation of the Federal Shariat Court which is based on an obvious misreading of the record. Not only in the First Information Report but also as a witness at the trial, the complainant stated that it was Sarfraz who had forcibly opened his Shalwar, broken its string and committed sodomy on him. Muhammad Ramzan (P.W.9) supported this though he was not believed with regard to the identity of Sarfraz. It is, therefore, clear that there has been a misreading and it has indeed occasioned failure in the correct appraisal of the evidence on record.
12. The complainant was, as it appears from the statement of Dr.Sultan Mahmood (P.W.1) subjected to carnal intercouse against the order of nature. Sarfraz in his statement under section 342, Cr.P.C.
13. Attributed an enmity accounting for false charge. It was in the following words:- "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 our 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 attributed the allegation of sodomy against me."
14. None of the Courts has believed the correctness of this statement and we do not consider it as sufficient to prompt false implication or a substitution of the respondent Sarfraz for the real culprit.
15. Faqir Muhammad (P.W.) and Dr. Sultan Mahmood established the identity of the sealed parcel containing anal swa bs about which the Chemical Examiner's Report (Ex.P.J.) was positive. Faqir Muhammad (P.W.) claimed to have taken it from the Malkhana of the police station on 27-6-1984.
16. The typed entries of the report form show that it was received in the office of Chemical Examiner on 12-7-1984. Faqir Muhammad (P.W.) would have been competent person to explain this discrepancy but no question was put to him and he was not afforded an opportunity to explain it. Clerical mistakes of a serious type can take place in filling up the entries on the report form will be clear from another report (Ex.P.L.) relating to Shalwar wherein the Shalwar is reported to have been received in as sealed bottle with eight seals intact. As the identity of the sealed parcel was established through the doctor and Faqir Muhammad (P.W.4) there was no occasion to doubt it.
17. The accused had full notice that this was the evidence of these two witnesses and the report was on record and he was presented by a counsel. In this background, the omission to draw his attention to the Chemical Examiner's Report while examining him under section 342, Cr.P.C. Is not of serious consequence.
18. As regards examination of the accused on oath, we find that such an examination was provided for by substituted subsection (2) of section 340, Cr.P.C. By amending Ordinance XII of 1985 enforced on 21-2-1985. The record of the trial Court shows that the accused were examined in this case on 17-2- 1985 and arguments also concluded on that date. The judgment was reserved which was announced on 2-3-1985. The case having concluded before the introduction of the provision relied upon by the learned counsel for the respondent such an examination was not necessary and the omission is not of any consequence.
19. For the reasons stated while considering the case of Nawaz we consider that no case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance is made out against Sarfraz either because except for the allegation of having forcibly committed sodomy on the complainant there is no other evidence which may establish that the complainant was forcibly taken away anywhere.
20. As regards the offence under section 377, P.P.C., we consider that but for the misreading of the evidence and the exclusion of the Chemical Examiner's Report it would have not taken place. We accept the appeal, set aside the acquittal of respondent Sarfraz under section 377, P.P.C., convict him and sentence him to 5 years' R.I. And a fine of Rs.5,000 or in default R.I. For two years. The respondent who is on bail shall surrender and should be taken into custody and required to undergo the remainder period of his sentence. The respondent shall be given the benefit of section 382-B, Cr.P.C.