Maqbool Ahmad petitioner, was tried under section 377, P.P.C. On the charge of committing sodomy with Muhammad Saleem, aged 5/6 years, by Magistrate 1st Class, Lahore. He denied the charge and claimed to be tried.
2. To prove its case, the prosecution produced seven witnesses. Muhammad Saleem appeared as P.W.4. He stated that the petitioner had committed sodomy upon him and was arrested on the spot. Mangta P.W.1 and Sabir P.W.2, the alleged eye-witnesses of the occurrence, stated that they had not seen the occurrence. They were declared hostile. Muhammad Siddiq P.W.3, the father of Muhammad Saleem, stated that Muhammad Saleem who had gone outside the house to play, was brought back by Sabir and Mangta P.Ws., alongwith Maqbool accused. He took the child and the accused to the Police Station and produced them there. At that time blood was oozing out of the anus of the child. He further stated that Sabir and Mangta P.Ws. Told him that the petitioner had committed sodomy with his son. Bashir Ahmad Constable (P.W.5) took two sealed parcel to the office of the Chemical Examiner and delivered the same there. Dr. Qamar Hussain, who had examined the child, was not available, so Allah Ditta Clerk, General Hospital, Lahore, was produced to identify the handwriting and signature of the doctor on medico-legal reports Exh. P.C. And Exh.
P.L. The Investigating Officer appeared as P.W.7.
3. When examined under section 342, Cr.P.C. The petitioner denied all the incriminating circumstances. He raised plea of false implication. In defence, he produced two witnesses.
4. On the conclusion of the trial, the petitioner was convicted under section 377, P.P.C. And sentenced to three years' R.I. On 1-7-1982. The appeal filed by him against his conviction and sentence was dismissed by the learned Additional Sessions Judge, Lahore, on 18-4-1984. Hence this revision.
5. The learned counsel for the petitioner submitted that the two eye--witnesses, namely, Mangta and Sabir have not supported the prosecution case against the petitioner; that the Medical Officer, who examined Muhammad Saleem, was not examined at the trial and instead Allah Ditta Clerk was produced to prove the medico-legal reports, that since the Foot Constable, who was deputed to serve the summons on Dr. Qamar Hussain, was not produced to prove the non-availability of the Medical Officer, so secondary evidence was not admissible in evidence; that during the trial, the parties had compromised and father of Muhammad Saleem P.W. Had riled an application before the District Magistrate for the withdrawal of the case, so no useful purpose would be served by remanding the case for recording the statement of Dr. Qamar Hussain or the statement of the Constable to whom the summons for his service was entrusted. The learned counsel for the State has supported the impugned judgments.
6. I have considered the matter carefully. I feel persuaded to accept the revision, set aside the conviction and sentence of the petitioner and remand the case for proceeding in accordance with law for the reasons that since the Foot Constable to whom the summons for the service of Dr. Qamar Hussain was entrusted and who had reported that the doctor was not available, was not examined in the trial Court, so the secondary evidence of Allah Ditta clerk to prove the medico- legal reports Ex. P.C. And Ex. P.L. Could not have been recorded by the trial Court. This being the position, the medico-legal reports, which are very much important for the just decision of the case, cannot be considered and read as legal evidence. Now the crucial question, for consideration is as to whether or not, the case should be remanded to the trial Court for fresh decision in accordance with law, I feel that, in the peculiar circumstances of the case, that the offence under section 377, P.P.C. Is not compoundable; that it is a case of heinous nature in which a child aged 5/6 years was allegedly subjected to sodomy; that the child has supported the allegation of sodomy against the petitioner; that the petitioner was arrested at the spot; that just after the occurrence, Mangta and Sabir P.Ws. Had told the father of the victim that the petitioner had committed sodomy with Muhammad Saleem and this piece of evidence was/is admissible in evidence, I feel that it would be in the fitness of things that the law should have its own course. So this revision is accepted. The conviction and sentence of the petitioner is set aside and the case is sent back to the trial Court with the direction that fresh summons for appearance of Dr. Qamar Hussain be issued. If he is not available then the statement of the concerned constable be recorded, before recording the statement of Allah Ditta Clerk and then decide the case in accordance with law. The trial Court need not to record the statements of other witnesses.