TANZIL-UR-REHMAN, C.J.--- This Revision arises out of the judgment, dated 8-9-1990 passed by Additional Sessions Judge, Attock acquitting the two respondents Mehboob Iqbal and Mumtaz Khan from the charge of committing sodomy upon the complainant Muhammad Azam under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C.
2. By our short order, dated 24-1-1991, at the conclusion of the hearing, we accepted the revision petition and set aside the judgment in acquittal for reasons to be recorded separately. The case was remanded to the learned Sessions Judge, Attock to take the case on his own file for decision afresh.
3. I am in complete agreement with the reasons given in the judgment by my learned brother, Ibadat Yar Khan, J. I would, however, like to refer to certain submissions of the learned counsel, which are pertinent to the above case.
4. Learned counsel for the above-said two respondents, while referring to case-law, vehemently urged that the innocence of the accused becomes strong by order of acquittal and it should not be lightly interfered with by the superior Courts (State v. Noor 17zat 1985 P Cr. L J 457, Peshawar D.B.); if the accused is acquitted, the presumption of his innocence becomes double (Muhammad Ali v.
Mahmood Ali 1985 P Cr. L J 2937, Lahore S.B.); Revision Petition should not be accepted merely because another view of evidence on record is possible; (Asghar Ali v. Muhammad Ramzan 1986 P Cr. L J 2342 Lahore SB); in an appeal against acquittal, weight is to be given to findings of trial Court; Abdul Majeed v. Superintendent and Rehembrancer of Legal Affairs PLD 1964 SC 422; to challenge the acquittal by an appeal the Court would be very slow to interfere. Feroze Khan v.
Captain Ghulam Nabi Khan and another PLD 1966 SC 424, and that High Court exercises powers of revision in a markedly more restricted manner in a case of acquittal than one of conviction, Abdul Rashid Khondkar v. Chandu Matbar PLD 1964 SC 795.
5. Although the above observations have been made in criminal appeals, there can be no cavil for the propositions advanced by the learned counsel. In this respect, it may be advantageous to refer to Sheo Swarup's case AIR 1934 PC 227, which is a leading case, laying down the fundamental principles for regulating the Superior Courts' jurisdiction in the case of acquittal appeals and it will be instructive to reproduce a passage from the judgment in said case which reads as under: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal would be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to be benefit of any doubt and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."
The aforesaid,, principles were approved by the Honourable Federal Court and the Supreme Court of Pakistan in various cases.
6. The revisional jurisdiction conferred on this Court by Article 203-DD is Constitutional in nature, whereby this Court may call for and examine the record of any case decided by any Criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the `correctness, legality or propriety' of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court. This power is exercise able by this Court even if no appeal has been brought by the party, who could bring the same whereas no revision is entertain able by the High Court under section 439, Cr.P.C. If an appeal lies against the order/judgment but no such appeal has been filed by these party.
7. Thus on examining the case decided m order to satisfy itself about the correctness, legality or propriety of any finding or order if it is noticed by this Court that the order of acquittal is wrong resulting in the miscarriage of justice or I the assessment of a material part of evidence is wholly unreasonable or is wholly illogical or the evidence or any material part thereof has been misread or has not been considered at all or some evidence has been brought on record in disregard to the provisions of law, it may interfere with such finding or order, otherwise it would amount to endorsing a patently unfair order which may lead to miscarriage of justice.
8. In the instant case, it is true that C.Ws.1 to 5 have not supported the prosecution case apparently for the reasons discussed by my learned brother Ibadat Yar Khan, J., but the conclusions arrived at by the learned trial Judge on the facts as borne out of the evidence of the complainant/victim and the Medical Officer are not supported by balanced statement of fact and law and the established principles laid down by the Superior Courts for appreciation of the evidence. Furthermore,, the School Leaving Certificate Exh DA. Has not been brought on record in accordance with law. Besides, trial Judge has completely ignored the report of the Chemical Examiner Exh. P.G, which is an important piece of evidence. Keeping it outside the consideration has resulted in injustice to the complainant. The submission of the learned counsel that even if the said report is taken into consideration it will not make any difference, as according to the opinions of Modi and Taylor, the maximum period to retain traces of semen in anus is 24 hours. (Reference was made to Taylor's Principles and Practice of Medical Jurisprudence thirteenth Edition page 95 and Modi's Medical Jurisprudence and Toxicology, Pakistan Edition, page 338). It is well settled that such opinions are not conclusive. For example, the presence of spermatozoa in the vagina after intercourse was earlier opined upto seven days whereas according to the latest researches the presence of spermatozoa in the vagina after intercourse has been reported to exist upto 17 days. Likewise, the possibility of the report being positive on rectal swabs cannot be ruled out absolutely, simply because it is beyond 24 hours. There may be a case that due to constipation or some other cause the stool does not pass and the trace of semen may retain for longer time. Muhammad Azam the complainant/victim (P.W.5) in cross--examination stated before the trial Court that as he was very much upset, "during the period of occurrence and before lodging of the report, I did not take food due to grievance and as such did not pass stool during the time. I also did not take bath." It is apparent that the complainant, a village boy of about 16 years of age had not read Taylor or Modi.
His statement before the Court, prima facie, seems to be quite natural and convincing. Since we are remanding this case we are under a restraint and it would be improper on our part to make any further comments on it.
9. Before parting with the case it may be observed that the above observations have been made to justify the setting aside of the judgment in acquittal passed by the learned trial Judge. But since we are remanding the case following the judgment of the Honourable Supreme Court in Criminal Appeal No.16(S) of 1987, the learned District Judge while re-assessing the evidentiary value of the statement of the complainant, Medical Officer, Chemical Examiner's Report and the School Leaving Certificate, referred to above, will come to his own conclusions.
IBADAT YAR KHAN, J.-This Revision Petition has been filed against the judgment of Additional Sessions Judge, Attock, dated 9-8-1990, whereby respondents Mehboob lqbal and Mumtaz Khan have been acquitted of the charges under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C.
2. Petitioner Muhammad Azam, aged about 15/17 years, is the son of a Pesh-Imam Muhammad Aslam. During the period of occurrence he had obtained leave from his employer and was staying with his father in village Basal. On 24-4-1988 the boy went out for a pleasure walk with three other teen-ager boys. It was about 10-30 p.m. The three other companions were Tasawar, Wajid and Tariq. After walking for some distance the three companions went ahead leaving the boy "behind.
During the walk the boy had noticed that two men were also following the boys. They were, however, taken to be innocent and unconcerned passers-by. When the three young boys had gone ahead and the petitioner (e.i), left alone, the two followers reached the boy, caught hold of him, wrapped has face, gagged his mouth and forcibly dragged him of the metalled road in the `kutcha'. Mumtaz Khan respondent in this petition, untied his Shalwar and forcibly secured him.
Mehboob lqbal, the other respondent, first committed sodomy upon the boy. After Mehboob lqbal had finished, he caught hold of the victim allowing Mumtaz Khan to satisfy his lust. When both had finished and their grip was released the boy started crying and raising alarm. It is alleged that Jahandad and Khan Malik, who happened to be in the vicinity rushed to the place and it is alleged that they witnessed the occurrence. Perhaps the situation was such that Jahandad and Khan Malik were not in a position to catch and overpower the two accused and they conveniently escaped from the place of occurrence. The boy returned home. It appears that by the time he reached the house all alone it would be sometime in the mid-night. The police station was at a distance of about a mile from the place of occurrence. 1t is better to reproduce the remaining part of the story in his own words: "I did not go to lodge the report during the night as I did not know how to lodge the report. My grandfather Mian Sikandar is alive whereas Yaqub and Ghafoor are my uncles. They are alive and live at the same dhoke. My mother is also alive. I have no cider brother. The aforesaid two persons are not my real uncles. My grandfather was not available at the house at that night. Even on the next day nobody was available in whose company I could lodge the report. As the stay of my father at Pindigheb was not known to us therefore no one could be sent to call him on the next clay. I had stated in the F.I.R. That my father had gone to Pindigheb as such I could not lodge the report earlier.
Confronted with. Exh. P.D. Where there is no mention of the father of complainant having gone to Pindighcb. 1 did not state that my father had gone to Rawalpindi in connection with certain piece of work. I did not request anybody case to accompany me to lodge the report. My mother also did not offer to accompany me. During the period of occurrence and before lodging of report I did not take food due to grievance and as such I did not pass stool during this time. I also did not lake bath. My mother however persuaded me to take meal but I did not do so. 1 did not disclose the face of commission of sodomy with me to my mother. 1 also did not disclose this fact even to anybody else before the arrival of my father. My father had returned to house on the morning of the registration of the case. He had returned at about 10 or 11 A.M. And set out to police station at about 12 noon. We had reached the P.S. Within about an hour. I myself had lodged the report. The report was not registered at evening time."
3. As indicated above the F.I.R. Was lodged on 26-4-1988. The victim was examined by Dr. Muhammad Ejaz, Incharge Medical Officer, Basic Health Unit Ghorghushti. Dr. Ejaz has been examined as P.W. And has issued a detailed medical report- of the victim noting marks of violence and bruises on both shoulder joints posteriorly. Also noting triangular laceration on the mucous membrane. Relevant portion of the report may be reproduced below: "Sirens of strums.-- (i) Abrasions and bruises on both the arms and fore--arm posterior as well as interiorly particularly at the elbows posterior.
(ii) Abrasions and bruises were present at both the knees interiorly.
(i.e) Abrasions were present on both the legs interiorly.
(7) Gomorra discharge was absent.
(8) Prolapsed of anus was absent.
(9) Faecal matter around the anus was present.
(10) Signs of habitual passive agent:--absent.
4.In addition to the medical report, the report of the Chemical Examiner, which has been produced in Court by the D.DA. Shows that semen was present on the rectal swabs and also on the Shalwar and Qameez of the boy. 1t is a pity that the semen was not matched, which if it had been done, would have been very' helpful for a proper decision of the case. It is pertinent to note here that in the F.I.R. The names of the three boy companions, who had set out with the victim boy for a walk on that night, were clearly mentioned as Tasawar son of Fazal Dad, Wajid Ali son of Amir Khan and Tariq Mehmood son of Munawar Khan. The names of the two witnesses, who had reached the place of occurrence in response to the shouts and alarm of the boy, were also mentioned. But none of the live were mentioned in the calendar of witnesses in the challan. As such none was examined,, by the prosecution. Adverse comments against the 10 for his failure to show these important witnesses in the challan have been made before us. It appears that at some stage the investigation of the case was taken over by the Deputy Superintendent of Police but it is not clear how and for whose benefit this unusual exorcise was undertaken by the superior police hierarchy. It is to be further noted that Jahandad,, and Khan Malik, the two brothers, were examined by the Court on its own initiative as C.W.1 and C.W.2 and their statements in Court reveal that they had appeared before the D.S.P. So much so that they have riled affidavits that they had not seen the accused persons committing sodomy with Muhammad Azam. It is rather unusual behaviour of Jahandad and Khan Malik in appearing before the D.S.P. And filing affidavits and it shows their being overzealous in providing a shield to the accused. The conduct of the D.S.P. And the other members of the investigating agency in entertaining such evidence and then dropping them from the calendar of the witnesses although they were named in the F.I.R. Raises many questions about their impartiality. Be that as it may, after having filed the affidavits they were pinned down to a specific position and it was difficult for them to take any other position in Court while- making a statement as Court witness. The three teen-aged companions, whose names were also mentioned in the F.1.R. And had been dropped from the calendar of witnesses by the police were also called by the learned trial Judge and examined as C.W.3, C.W.4 and C.W.5. They have also pleaded complete ignorance from the incident. They have actually gone to the extent of saying that they have never given any company to Muhammad Azam on the walk on that night. Incidentally it may be mentioned that these three boys were also examined by the D.S.P. The treatment given to the five witnesses during the investigation by obtaining their affidavits at the D.S.P. Level pinpointing them to a certain position leaves an impression that these are all devices to reinforce the protective shields around the accused when they appear in Court to face the charge.
5. The learned counsel for the respondents has vehemently argued that the story narrated by the petitioner is improbable and he contends that the five witnesses mentioned by him in the F.I.R. As well as in the statement have not supported the story of the petitioner. In our opinion some times circumstances speak louder than the witnesses and in this case the manner in which the investigation was conducted and behaviour and conduct of these five witnesses creates an impression that the rive have made obliging statements and have not spoken the truth.
6. Reverting to the positive evidence we have on record the clean and detailed statement of the petitioner, which is fully corroborated by the findings of the doctor, who examined him. Not only the bruises and abrasions on the posterior and interior of the forearm, knees and the legs shown in the report as signs of struggle coupled with his clean finding that "in my opinion sodomy was done with the examinee and as such unnatural sexual offence was committed" during the past 50 hours, go to show that the outrage committed on the boy has been fully proved. It is further supported by the report of the Chemical Examiner. Who has detected semen not only on the swabs taken from the anal canal of the boy but also on the Shalwar and Qameez of the victim. No explanation is forthcoming why this poor boy bearing no grudge against any one should involve innocent persons in such a heinous crime. Nor, indeed, the unsubstantiated suggestion that the father Muhammad Aslam had litigation with one of accused in relation to some consolidation proceedings of some land is convincing. The articulated manner in which the accused have replied to the questions put to them by the Court during their statements under section 342, Cr.P.C., also shows the frame of mind of the two accused persons. The idea that the father would put his 15 years boy to such a physical torture and stake the reputation of the boy, himself and of the family merely for the sake of some bickering or acrimony with some members of the family of the accused is not easy to swa llow.
7. Faced with the situation stated above the learned counsel appearing for the respondents then turned to the judgment of the learned trial Court and drew our attention to comments in para 7 of the judgment. The learned Judge has observed, that "on the solitary statement of the victim if that is corroborated by the medical evidence the conviction can be made". After stating this proposition of law the learned Judge hastened to add "but in the present case the statement of the complainant is not inspiring one and is full of additions and contradictions with his previous statement which was made in the F.I.R." In our opinion there is no contradiction and no addition or omission worth the name, which could cause a dent in big broad facts of the story or create a shadow on the main feature of the case. Equally unconvincing are the reasons for outright rejection of the medical evidence when the learned Judge observes that "the learned counsel for the accused has vehemently and forcefully stated that during the last 10 years no person was produced for medico-legal report to Medical Officer, Basic Health Unit and if it is proved the learned counsel contended that the accused may be convicted." The learned Judge has failed to appreciate that a Medical Officer may not have examined any other victim of the same nature but that does not mean that he is disqualified from forming an opinion after examining the subject. The opinion would be subjected to scientific analysis and its merit would be determined on that basis.
Moreover, most of the findings of the Medical Officer are clinical examination of the victim for which no specialised degree or experience is required. Bruises and abrasions on knees and shoulder blades are to be correlated with the crime and results are to be derived. This medical report cannot be rejected because the Police Inspector has not noted the injuries. It should not be overlooked that Muhammad Khan being a police officer could easily ignore noting of such in injuries because from his point of view recording of statements and drawing the site plan were more important than looking to the anal region or other parts of the body. We are constrained to say that discussion in para 7 of the judgment, which is the pith and substance of the assessment of the evidence` by the learned Judge. Is not only contradiction in terms but reflects lack of appreciation of the broad and important features of the case. Failure on the part of the learned Judge to appreciate that in the situation of the case the spontaneous and frank manner in which the story was coming from the victim's own mouth was the real worth of the prosecution case.
8. The other leg of the argument of the learned counsel was that the Court of appeal exercising powers in revision should not convert acquittal into one of conviction if the evidence is found balanced. According to the learned counsel even if the statement of the victim is confidence inspiring and it is also corroborated,, by the medical evidence nevertheless it is clouded by the statements of five witnesses who were examined as Court witnesses. The contention is that those very persons who were mentioned as prosecution witnesses have turned up to *disown the version advanced in the prosecution case. There may be many reasons for the two chance witnesses making obliging statements but the very fact that they were mentioned in the F.I.R, shows that they had reached the place of occurrence and were not quoted at random without any reason. Their going to the police and filing the affidavits exonerating the respondents speaks volumes about them.
9. The learned counsel for the respondents has relied on a number of cases to show that the Courts sitting in revision have not been inclined to interfere in revision under section 439, Cr.P.C.
10. The argument may be there so far as it goes, but we cannot overlook the fact that power given to the Court under section 439, Cr.P.C. Should be exercised in such a manner that its interpretation is not reduced- to mere academic dialogue and the section is reduced to ornamental carving of the statute book. Reference was made to the following cases: 1985 P Cr. L J 457;1987 P Cr. L J 2179; 1985 P. Cr. L J 2937; PLD 1986 SC (AJ&K) 35; PLD 1979 SC 956; 1986 P Cr. L J 2342; PLD 1964 SC 422; PLD 1966 SC 424; 1985 P Cr. L J 2937 PLD 1964 SC 795 and 1986 SCMR 512.
We have carefully examined these cases but none of them is applicable to the facts of this case.
11. The expression in section 435, Cr.P.C. "satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court" in our opinion is were enough to Justify interference where injustice is being done. The beneficial effect of the power under this section should not be confined to narrow perimeters on the basis of quotations from some decisions rendered by the Courts in the peculiar situation of each case. The interpretation, according to us, should be inspired with a feeling that an), order bound to be tainted with miscarriage of justice should be knocked out. A hair splitting exercise by rushing to the case law and ignoring the spirit of the law would be defeating the purpose for which the power has been given. In the present case we have no hesitation in coming to the conclusion that an erroneous and unbalanced approach has been brought to bear in appreciating and evaluating the prosecution evidence. Quality of evidence seems to have been ignored and quantity seems to have impressed the learned Judge. The judgment may not suffer from any illegality, in technical terms but the findings surely suffer from impropriety and an incorrect, improper and if we may say so a shallow approach resulting in miscarriage of justice.
13. For the above reasons we allow the revision, set aside the judgment. Sitting in revision we have to follow the dictum laid down by the Supreme Court in Criminal Appeal No.l6 (S)/1987. We cannot award any sentence to the respondents. Relevant portion of the judgment of the Supreme Court is reproduced below: "There is no controversy that the High Court does not have the power to convert a finding of acquittal into one of a conviction. If we accept the contention that "and" has been used as conjunctive and the purpose of it is to provide an opportunity of hearing to the accused then first part of the proviso would become redundant. Under section 203-DD, the Court is empowered to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed as to the irregularity of any proceedings and after examining the record the Court may pass such order as it may deem fit and may enhance the sentence. The enhancement of the sentence relates to the accused whose sentence is under examination before the Court. It further provides that it may pass such order as it may deem fit but this is qualified by the proviso that "nothing in this Article shall be deemed to authorise the Court to convert a finding of acquittal into one of conviction". The second part of the proviso requires that "no order to the prejudice of the accused shall be made unless he has an opportunity of being heard in his own defence".
It means that in case the sentence is proposed to be enhanced or the order of acquittal is to be interfered with the accused must be heard before a final order is passed but it does not mean that after hearing an accused the accused can be convicted once his acquittal is set aside. The case has I to be remanded to the trial Court."
We would, therefore, remand the case to the learned Sessions Judge, Attock, to re-assess and re- evaluate the merits of the evidence alongwith the medical report, the report of the Chemical Examiner and pass a fresh judgment according to law.
14. The petitioner and the respondents through their counsel Malik Rab Nawaz Noon, Advocate, are directed to appear before the learned Sessions Judge, Attock on -1991.