' FAZAL KARIM, J.-- This will dispose of Criminal Appeal No, 296 of 1988 by Khadim Hussain, Criminal Appeal No, 321 of 1988 by Anwar Hussain and Masood Akhtar and Criminal Appeal No, 557 of 1988 by Abdul Jabbar, appellants. They have arisen out of a judgment of the Special Court for Speedy Trials No,9, Gujranwala, dated 10-3-1988 convicting the appellants under sections 395 and 397 of the P.P.C. And sentencing them to life imprisonment, fine of Rs,25,000 and in default 2-1/2 years' R.I.
Each; under section 365 of the P.P.C. And sentencing them to R.I. For five years; and under section 377 of the P.P.C. And sentencing them to life imprisonment, fine of Rs,20,000 and in default two years' R.I. Each. The whole of the fine under section 395/397 of the P.P.C. Was directed to be paid to Muhammad Nazir and Muhammad Sarwar P.Ws. As compensation under section 544-A, Cr.P.C.
And half of the fine under section 377 of the P.P.C. Was directed to be paid to Muhammad Asjad (P.W.8) under section 544-A, Cr.P.C. All the sentences were directed to run concurrently.
2. Also tried with the appellants was Aurangzeb; he was also convicted and sentenced as the appellants were. It appears, however, that he has not appealed.
3. The prosecution story was as follows. Muhammad Nazir (P.W.9) was running an oven business in Kharian; Muhammad Asjad (P.W.8), a boy aged 13 or 14 had started working at his oven on daily wages of Rs,10 per day two days before 6-11-1987. Muhammad Sarwar (P.W.10) was a labourer. At about 6-45 p.m. On 6-11-1987, Muhammad Nazir P.W. Closed his shop and accompanied by Muhammad Asjad P.W. Started to go to his residential house. Muhammad Sarwar P.W. Joined them on the way. Muhammad Nazir P.W. Had with him the day's earnings Rs,880. Muhammad Sarwar P.W. Said that he had on his person Rs,750; Rs,700 had been given to him by his employer for purchasing potatoes and onions and Rs,50 were his own. He had spent Rs,5 on cigarettes etc. And had at the time of the incident Rs,745 with him. When they reached the ground near the shrine of Baba Latif Shah Ghazi, they saw the appellants and their co-accused Khadim Hussain and Abdul Jabbar armed with rifles, Aurangzeb and Anwar Shah armed with pistols and Masood armed with a .12 bore gun. Of them, only Khadim Hussain was known to Muhammad Nazir P.W. And he alone was named in the F.I.R. Khadim Hussain took the purse P.4 from the pocket of Muhammad Nazir P.W.
Containing Rs,880. His identity card was also in the purse. Abdul Jabbar, appellant, also removed his wrist watch P.3. Khadim Hussain, also took the purse of Muhammad Sarwar P.W. From his pocket and Masood Akhtar, appellant removed his wrist watch and woollen Chadar. The appellants and their co-accused then made Muhammad Nazir, Muhammad Sarwar and Muhammad Asjad P.Ws.
Sit for some time. They then took them across the railway line upto a distance of two Acres where Muhammad Nazir and Muhammad Sarwar P.Ws. Were allowed to go. The appellants and their co- accused however, took away Muhammad Asjad P.W. With them forcibly.
4. It was in the evidence of Muhamamd Nazir P.W. That after the dacoity, they went to Dinga Chowk, sat in a shop, took tea and seeing Muhammad Safdar S.H.O. (P.W.11) there, he went and reported the incident by his statement (Exh.P.H.) at Dinga Chowk.
5. Muhammad Asjad P.W. Stated that after allowing Muhammad Nazir and Muhammad Safdar P.Ws. To go, the appellants and their co-accused took him to the Pabbi. From there, Khadim Hussain, appeallant, went to his house for a while and then all the five accused persons committed sodomy with him one after the other in the bushes in the Pabbi. They then took him into a house in the Pabbi where they took their meals. From there, they proceeded to a place near the Civil Hospital, Kharian, but then fearing that the police might apprehend them, they went to the house of Anwar Shah, appellant, where they slept. At about 3-30 a.m. When Muhammad Sarwar and Muhammad Na7ir P.Ws. Were still with the S.H.O., information was received that the appellants and their co-accused were in the house of Anwar Shah in village Thapla. The police party, accompanied by Muhammad Na7ir and Muhammad Sarwar P.Ws. Raided the house; there was an exchange of fire shots between the police party and the appellants; taking advantage of the excahange of fire shots, Khadim Hussain, appellant, slipped away, but the remaining accused persons were apprehended. Muhammad Asjad P.W. Was also found in the house. At the time of their arrest, Abdul Jabbar, appellant, and Aurangzeb accused had rifles, Masood Akhtar, appellant, had a .12 bore gun and Anwar Hussain, appellant, had a pistol. Their persons were searched and a sum of Rs,880 was recovered from Masood Akhtar, appellant which was the money of Muhammad Nazir P.W. Rs,745 were recovered from Aurangzeb; Rs,100 were recovered from Anwar Hussain appellant.
6. Khadim Hussain, appellant, was arrested on 1411-1987; on 19-11-1987, he led to the recovery of rifle P.9; on 20-11-1987, Khadim Hussain, appellant, led to the recovery of purse P.1, photo copy of his identity card P.2 and wrist watch P3 from his residential house; they were taken into possession vide memo. Exh.P.J. Abdul Jabbar, appellant, led to the recovery of woollen Chadar P.7 from his residential house; it was taken into possession vide memo. Ex.P.M.; Masood Akhtar, appellant, led to the recovery of purse P.5 and the wrist watch from his residential house and the same was taken into possession vide memo. Exh.P.L. Anwar Hussain appellant, led to the recovery of purse P.4 from his residential house and it was taken into possession vide memo. Exh.P.K. And Aurangzeb accused led to the recovery of National Identity Card of Muhammad Nazis P.W.(P.8) from his residential house and the same was taken into possession vide memo. Exh.P.N.
' Dr. Zafar Iqbal Gondal (P.W.1) had medically examined Muhammad Asjad P.W. At 10-00 a.m. On 7- 11-1987 and had found the following injuries on his person:-
(1) There is abrasion measuring 4 c.m. x 2 c.m. On the left knee joint.
(2) Contusion mark 3-1/2 c.m. x 1 c.m. On the right knee joint.
(3) Contusion mark 3 c.m. x 1/2 c.m. On the left elbow.
(4) Contusion mark on the right cheek.
(5) Redness was present around the anal margin, complains of pain on taking of swabs.
' He took two anal swa bs and sent them for chemical examination for the detection of semen.
Exh.PA. Is the carbon copy of his medico-legal report. On receipt of medico-legal report on 22-11- 1987 which was to the effect that the swabs were stained with semen, the doctor gave his opinion that Muhammad Asjad P.W. Had been 'subjected to sodomy'.
7. The doctor also examined the appellants and their co-accused Aurangzeb and gave his opinion that they were physically fit to commit the act of sodomy.
8. In cross-examination, the doctor said that there was no blood or swelling on the anal margin of Muhammad Asjad P.W; he had reached the hospital walking and had not complained of any pain; he had also not complained of pain while walking. He was of the opinion that sphincter muscle may be loose and presence of swelling and bleeding is not must in every case of commission of sodomy. The doctor, however, did not say that 'sphincter muscle' of Muhammad Asjad P.W. Was loose nor did he give any reason how there was no swelling or bleeding.
9. All the appellants denied having had anything to do with the commission of the offences. They also gave evidence on oath in support of their innocence. In his statement under section 342, Cr.P.C. Khadim Hussain, appellant, said: ' In 1985 I paid Rs,40,000 to one Abdul Rashid for securing an employment abroad who neither made any arrangement for employment abroad nor did he return the money. At my request for the return of my money Abdul Rashid maltreated and threatened me with dire consequences. At the instance of said Abdul Rashid, the police of Police Station Kharian raided my house and misbehaved with the inmates of the house particularly my sister. When I intervened the police asked me not to demand the return of money from one Abdul Rashid failing which he will be dealt with in the same manner. My father sent telegram to al.- G., I.-G., Police and also to the President and Prime Minister of Pakistan complaining against the high-handedness of the police. Being aggrieved of the said telegram, the local police falsely implicated me in a number of cases. Since then I am an easy prey to the local police.
' On 28-7-1987, I was arrested by the present S.H.O. My father filed two writ petitions against the S.H.O., before the Lahore High Court, Lahore. Upon this, the present S.H.O. Was annoyed and implicated me in the present case along with other cases after the filing of the said writ petitions.
He is, also annoyed because my father filed a petition for contempt of Court against the present S.H.O., before the Lahore High Court, Lahore. The P.Ws. Of this case have deposed against me at the behest of Malik Muhammad Safdar, S.H.O. Police Station, Kharian."
10. He tendered in evidence copies of Writ Petition No, 4282 of 1987, Writ Petition No, 476 of 1987 and Criminal Original No, 46 of 1988, Exhs. D.C., D.D. And D.E. Respectively.
11. It will be sufficient to refer to one of the writ petitions dated 23-9-1987. That was instituted by Muhammad Sharif, father of Khadim Hussain, appellant. By that writ petition, grievance was made that Khadim Hussain, appellant, had been, on account of his dispute with the above-mentioned Abdul Rashid, involved in a number of false cases; that he was illegally detained by the S.H.O. And a prayer was made that he should be directed to be produced before the Illaqa Magistrate. It was also prayed that the detenu Khadim Hussain should be produced before the High Court.
12. In short, the defence of Khadim Hussain, appellant, was that on account of his dispute with Abdul Rashid, he had fallen foul of the S.H.O. And therefore, he had been falsely implicated in a number of cases.
13. In the view of the learned trial Judge, the three witnesses Muhammad Asjad, Muhammad Nazir and Muhammad Sarwar had 'rendered consistent, cogent and natural version in respect of the occurrence in question', it was proved by the testimony of Muhammad Asjad P.W. And the evidence of Dr. Zafar Iqbal Gonda! That Muhammad Asjad P.W. Was the victim of sodomy. The learned trial Judge also believed the recovery of articles from the appellants.
14. As has been seen above, the only culprit, named in the F.I.R. Was Khadim Hussain, appellant. The remaining four accused persons were admittedly not known to the P.Ws. Muhammad Asjad, Muhammad Sarwar and Muhammad Nazir before the day of occurrence. Muhammad Nazir P.W.
Admitted that he had not known the father's name of Khadim Hussain, appellant, but in the FIR., not only was his father's name mentioned but his full address was given. Muhammad Nazir P.W. Was frank enough to admit that he did not know his father's name even at the time of his statement in Court. It is in this context that the writ petitions mentioned above, assume importance. On account of the cases against him and the writ petitions instituted by the father of Khadim Hussain, appellant, he was fully known to the police and the inevitable inference is that so far as the description of Khadim Hussain, appellant, was concerned, the S.H.O. Imported his own knowledge into the F.I.R. Khadim Hussain, appellant, was not arrested till 14-11-1987 and in the circumstances of the case, the fair course to adopt for the police would have been to have an identification parade held. In these circumstances, learned counsel appearing for the State found it extremely difficult to support the conviction of Khadim Hussain, appellant. In this behalf, it is also pertinent to refer to some very significant admissions made by Muhammad Sarwar P.W. In his cross-examination. He was a laborer by profession and originally belonged to Bhalwal, District Sargodha. He said that Muhammad Nazir P.W. Was his neighbour. He admitted that on the day of his evidence, he had come from his house and gone to the police station and from there he had travelled by the police van to the Court premises. He added that he had been attending the Court by Police vehicle.
Muhammad Asjad and Muhammad Nazir P.Ws. Had also been travelling to the Court premises by police vehicle. He said that a day before his evidence, Muhammad Nazir and Muhammad Asjad P.Ws. Had come from their houses early in the morning; he had met them on the bus-stand and from there they had travelled to the Court premises in the police pickup. According to Muhammad Nazir P.W., Muhammad Asjad had left his service after the occurrence but he admitted that since the commencement of the trial, uhammad Asjad had been staying with him. All this must leave one with the impression that these witnesses were hands in gloves with the police and if the fact be that the S.H.O. Had been annoyed with Khadim Hussain, appellant, on account of the writ petitions, mentioned above, then this close association of the P.Ws. With the police must necessarily raise doubts about their honesty and impartiality. Muhammad Asjad P.W. Would have us believe that five full grown up men had carnal intercourse against the order of nature with him one after the other and this took them about one hour. According to him, in order to force him to submit to their unnatural lust, the appellants and their co-accused had given him beating with a plass. He did not mention the seat of the plass injuries. As to sodomy, the doctor found redness round the anal margin; he complained of pain when swabs were taken. The doctor did not notice any internal injuries; nor did he find any bleeding or swelling on the anal margin. In this connection, reference may be made to Modi's Medical Jurisprudence, twenty first Edition at page 337. According to it, there should have been laceration produced on the mucous membranes within the anus more or less offusion of blood extending horizontally inwards into the rectum. Thus, if as many as five men had the carnal knowledge of Muhammad Asjad P.W., the injuries should have been extensive. The doctor did say that sphincter muscle may be loose in some individuals and hence presence of swelling and bleeding may not be the necessary result of sodomy; but he did not say that the sphincter muscle of Muhammad Asjad P.W. Was loose. In our opinion, therefore, if Muhammad Asjad P.W. Had been the victim of sodomy by the five accused persons, the doctor should have been able, by examining his internal and external injuries to say on 7-11-1987 that he had been the victim of sodomy. Instead, he postponed his opinion till after the receipt of the Chemical Examiner's report.Then swa bs were kept in the police station till 14-11-1987; they were sent back with an objection and then again sent on 21-11-1987 and there was no explanation why they were not sent to the Chemical Examiner immediately. As to the recoveries, it has been seen above, that the appellants Abdul Jabbar, Masood Akhtar and Anwar Hussain were, according to the prosecution, arrested on 7-11-1987 when at about 3-30 a.m. They were in the house of Anwar Hussain, appellant.
At that time, besides the fire-arms, a sum of Rs,1,000 was recovered from Abdul Jabbar; Rs,180 from Masood Akhtar; Rs,70 from Anwar Hussain and Rs,745 from Auragnzeb, accused. Yet the Identity Card P.2, wrist watch P.3 from Khadim Hussain, appellant, woollen Chaddar P.7 from Abdul Jabbar, appellant; purse P.5 and wrist watch P.5 from Masood Akhtar appellant and an Identity Card of Muhammad Nazir P.W. From Aurangzeb accused were said to have been recovered on 20-11-1987.
As has been seen above, at the time of their arrest on 7-11-1987, the persons of Abdul Jabbar, Masood Akhtar, Anwar Hussain and Aurangzeb were searched and according to the prosecution, the robbed money was recovered from them. The evidence of Muhammad Asjad P.W. Tends to show that except Khadim Hussain, appellant, the remaining appellants and Aurangzeb had remained together till their arrest and had not gone to their residential houses. The recovery of these articles from the appellants on 20-11-1987, therefore, makes it demonstrably clear that these articles were planted upon the appellants in an attempt to connect them with the crime. The only public witness to the recoveries was Fateh Muhammad and he was a resident of a place five miles from Kharian. At the time of arrest of the appellants, Abdul Jabbar, Masood Akhtar, Anwar Hussain and the accused Aurangzeb, no person from that locality was joined; in fact, it was said that though there had been exchange of fire shots, yet no resident of the locality had been attracted. All these circumstances, in our view, combine to make the prosecution case extremely doubtful. We wouldk, therefore, accept the appeal set aside the convictions and sentences of the appellants and acquit them. They shall be released forthwith unless required in any other case.