The present criminal appeal is directed against the judgment, dated 18-7-1990, passed by Mr. Ala- ud-Din Arshad Nagi, Additional Sessions Judge, Mianwali, whereby the appellant was convicted under section 377, P.P.C. And sentenced to four years' rigorous imprisonment with a fine of Rs.2,000 or in default thereof to further one year's rigorous imprisonment.
2. Initially the appellant was charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. But was convicted and sentenced as stated above.
3. The facts leading to the present appeal are that Allah Ditta son of Sher Muhammad, caste Awan, resident of Colony Textile Mills, Ismailabad, Police Station Muzaffarabad, District Multan, reported to Muhammad Ashraf S.I. Of Police Station Kamarmashani on 22-12-1989 at 12-00 noon at Baroch Wahn in the area of village Allah Khel when he was on patrol duty that Tariq Khan accused, had subjected him to carnal intercourse. The said Muhammad Ashraf S.I. Had recorded his statement in detail as Exh. PA. He stated that he originally belonged to Mianwali but during those days he was residing at Colony Textile Mills, Multan. On. 21-12-1989 he was present at Adda at Chowk Munda, District Layyah. He happened to meet Tariq Khan, accused, who owns Truck No.8571/PRG and Sher D.1 resident of Wandha Sultan Khel Wala Dakhli Sultan Khel, his Driver of the said truck. Both offered him posting as Conductor of that truck. He accepted the employment and then he accompanied them in the said truck. Next day, early in the morning the truck reached Kamarmashani and then it proceeded towards Sultan Khel. When the truck arrived at Baroch Wahn in the area of Allah Khel, the Truck Driver Sher D.1 stopped the truck and he asked Allah Ditta, complainant, to accompany him. He felt suspicion of their bad intention. He refused to accompany Tariq Khan, accused. On his refusal both Tariq Khan and Sher D.1 forcibly got him down from the truck. Sher D.1 guarded the truck whereas Tariq Khan, accused, forcibly dragged him inside Sarkandas and he there forcibly got his Shalwar stripped of and then he started committing carnal intercourse with him. He raised, alarm but there was no Abadi near about. Anyhow, police party arrived there and then he made statement to Muhammad Ashraf S.I. Of the said police party. The complainant had alleged that Tariq Khan, accused, with the connivance and assistance of Sher D.1, Driver, had committed sodomy upon him. The Police Officer recorded his statement and obtained his thumb-impression and thus a case under section 12 of the Offence of Zina (Enforcement of Hudpod) Ordinance, 1979, and under section 377/109, P.P.C. Was registered against both the accused vide F.I.R. Exh.P.A./1.
Hence, after investigation Tariq Khan, accused, was placed under column No.3 whereas Sher D.1, co-accused was placed in column No.2 of the challan. The challan was sent up by the Illaqa Magistrate to the Court of Session and ultimately it was allocated to Mr. Ala-ud-Din Arshad Nagi, Additional Sessions Judge for disposal. The accused Tariq Khan faced trial under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. Since Sher D.1, accused, was found innocent during the investigation, therefore, he was not summoned as an accused in this case.
3. At the trial, formal charge under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, and under section 377, P.P.C. Was framed against Tariq Khan, accused. Charge was read over and explained to the accused in the language he understands. The accused Tariq Khan pleaded not guilty and claimed trial.
4. Evidence of the prosecution was recorded. Allah Ditta, complainant, was examined as P.W.1.
Nawar Khan Constable P.W.2, Muhammad Khan A.S.I. P.W.3 and Muhammad Ashraf S.I. P.W.7, who were the eye-witnesses of the occurrence, also made statements before the trial Court. Last mentioned Muhammad Ashraf P.W.7 had also investigated the case. Nawab Khan Constable P.W.5 had received one sealed parcel from Faiz Ullah Head Constable which he had delivered at the office of the Chemical Examiner, Rawalpindi. After securing his medical examination he received semen stained clothes of Allah Ditta and handed over the same to the Investigating Officer who took them into possession vide recovery memo. Exh.P.B. Dr. Aal-e-Rasool P.W.6 had examined Allah Ditta and had submitted report of medico-legal examination Exh.P.E. Tariq Khan, accused, on 30-6- 1990 deposed that he is physically potent. In view of this the evidence of the Medical Officer who had examined him for potency was dispensed with. The learned S.P.P. Had given up Dr. Abdur Rauf in view of that statement and closed the prosecution evidence.
5. Statement of the accused Tariq Khan under section 342, Cr.P.C. Was recorded. He denied having committed sodomy upon Allah Ditta P.W. He, however, stated--- "Allah Ditta P.W. While standing nearby the road was weeping and he told me that some unknown person had committed sodomy with him. I took him for the police station and there an altercation took place between me and the police officials and on that account the police have falsely implicated me. I never committed sodomy with Allah Ditta."
He did not produce any evidence in defence. He was given opportunity to appear as his own witness in defence of allegations against him but he opted not to appear as a witness on oath.
6. The Medical Officer had examined Allah Ditta and had reported as follows:-- "(1)Body examined. No scratches, cut mark or wounds present on body.
(2)Anal examination done.
(i)External examination of anus done. No laceration or congestion at anal margin seen. Perianal hair not meted together.
(ii)On digital examination no tenderness present and finger stall was not stained.
(i.e)On protoscopy nothing was detected.
Note: Thick stain present at Shalwar Qamiz. Two anal swabs were taken for chemical examination from Lahore."
He had further deposed that anal swabs were taken and sent to the Chemical Examiner, Rawalpindi. The report of the Chemical Examiner indicated the same as having been stained with semen. Qamiz and Shalwar of Allah Ditta also were found stained with semen. The report of the Chemical Examiner is placed on record as Exh.P.G. In view of the record of the Chemical Examiner the Medical Officer recorded the report Exh.P.E./1, which reads as under:-- "As per report of the Chemical Examiner, Rawalpindi, the anal swabs were stained with semen which depicts the definite proof of sodomy."
7. Allah Ditta P.W.1 deposed that about four months ago at about 11-00 a.m. He was present at Mehr Shah Wali where his paternal-aunt resides. He was proceeding to Mela Mandi and on the way some unknown person had committed sodomy upon him and then he went away. He came at the metalled road and started weeping while standing on the roadside. Tariq Khan, accused, came there and he took him to the police station. There Tariq Khan, accused, and the local police exchanged some hot words. Tariq Khan, accused, however, had not committed sodomy upon him.
He, however, admitted his thumb-impression on complaint Exh.P.A. But according to him, police after having recorded it, had not read it over to him. In this manner the witness had turned hostile.
The learned S.P.P. Requested that said P.W. Had suppressed the truth and therefore, he may ' be allowed to cross-examine him. This request being genuine, the witness was I declared hostile and was subjected to cross-examination by the S.P.P. He, however, denied having made statement before the police that Tariq Khan, accused, had committed sodomy upon him. He also denied that due to compromise having been effected he had exonerated the accused. In nutshell, the complainant admitted having been subjected to sodomy but according to his statement before the Court the accused was some unknown person and it was not Tariq Khan, accused, about whom reference is made in the F.I.R. He, however, admitted that Tariq. Khan, accused was present at the roadside where he was present after the occurrence.
8. Muhammad Ashraf S.I. P.W.7 has deposed that he alongwith other police officials was on patrol duty for checking illicit arms and intoxicants and that police party was going towards Sultan Khel.
When they reached Baruch Wahn, they heard noise. They went to the spot and saw that Tariq Khan, accused, was busy in committing carnal intercourse with Allah Ditta. He, therefore, recorded statement of Allah Ditta vide Exh. PA. And sent to the police station for formal registration of the F.I.R.
He inspected the spot and prepared site plan Exh. P.J. He also took into possession Truck No.6571- PRG alongwith its papers vide memo. Exh. P.B. And Exh. P.C. Respectively. He got Allah Ditta medically examined through Nawab Khan Constable. He also got two sealed parcels containing semen stained clothes of Allah Ditta, complainant/victim and the other parcel contained swabs. He took the same into possession vide memo. Exh. P.D. He recorded statements of eye-witnesses and had challaned the accused under section 377, P.P.C. And under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
9. The learned trial Court, placing reliance upon the evidence of the prosecution witnesses, and ignoring the testimony of P.W.1 Allah Ditta, complainant/victim, on the ground that he being a minor may have been influenced by his elders as a result of a compromise with the accused not to support the case of the prosecution, convicted and sentenced the appellant as stated above.
10. Learned counsel for the appellant and the State have been heard at length and the record of the case perused with their assistance.
11. The learned counsel for the appellant submitted that the star witness of the prosecution, namely, the complainant/victim, P.W.1 Allah Ditta, has not supported the case of the prosecution. Further submitted in this respect that although the said witness was subjected to cross-examination after having been declared hostile yet the prosecution failed to elicit anything thereby to its advantage.
Further submitted that the medico-legal report does not support the version of the prosecution in any manner, for, according to the medico-legal report, it is not established that any penetration has taken place which is essential requirement for the offence charged to be established in accordance with the explanation stated in the relevant section 377, P.P.C. Further submitted that the clothes of the accused were never taken into possession to support the version of the prosecution. Further submitted that it shall not be in keeping with the safe administration of criminal justice to place reliance entirely upon the evidence of officials to bring in a verdict of conviction under the facts and circumstances of the case as Stated above. Further submitted that there are material contradictions in the testimony of the P.W.2 Nawar Khan Constable and P.W.3 Muhammad Khan A.S.I. In respect of the place of occurrence. In this respect, the learned counsel pointed out that whereas P.W.2 Nawar Khan stated that the place of occurrence was the pacca road, but P.W.3 Muhammad Khan deposed that the place of occurrence was the Katcha road.
Therefore, further argued that such a contradiction in respect of the place of occurrence cannot be termed as minor discrepancy and that the only inference that can be drawn under such circumstances is that the said P.W.2 and P.W.3 had not witnessed the occurrence.
11. The learned counsel for the State opposed the present criminal appeal but fairly conceded that according to the medico-legal report it cannot be said that penetration had taken place and further confirmed, after consulting the record that the contradiction pointed out in the testimony of P.W.2 and P.W.3 stated above, is borne out from the evidence on the record.
12. In view of what has been stated above, as the complainant/victim had not supported the case of the prosecution and in spite of having been subjected to lengthy cross-examination, after having been declared hostile by the prosecution, the said P.W.1 Allah Ditta stood by his testimony before the trial Court, and as the medico-legal report does not establish, in any manner, that penetration had taken place, the same being sine qua non for the offence charged to be established, and as there was material discrepancy in respect of the place of occurrence in the testimony of P.W.2 and P.W.3, as stated above, therefore, it is hereby held that the prosecution has failed to bring the guilt home to the appellant beyond reasonable doubt.
13. Therefore, in pursuance to the above discussion, allowing benefit of doubt to the appellant, the present appeal is accepted and the impugned judgment is hereby set aside. The appellant is hereby acquitted of the offence charged. He shall be set at liberty forthwith, if not required to be detained in any other case. '