' Maqbool Ahmad, son of Nazar Muhammad, Muslim Sheikh by caste, aged 19 years, labourer, resident of Chak No, 56/SP, Tehsil and District Pakpattan Sharif, has approached this Court in appeal against the judgment of the learned Additional Sessions Judge, Pakpattan Sharif, dated the 18th March, 1992, whereby the appellant was convicted of the commission of offence of sodomy and was sentenced under section 377 of the Pakistan Penal Code to undergo rigorous imprisonment for seven years and pay a fine of Rs, 10,000 and in default of payment thereof to suffer further rigorous imprisonment for a year. He was directed to pay Rs,10,000 as compensation to the victim, Muhammad Khan, P.W.4 and in case of failure to pay the same to pass additional rigorous imprisonment for six months. He was accused of taking Muhammad Khan, P.W.4 a boy of six years of age and son of Muhammad Rafique, P.W.2, from Chak No: 56/SP, on the 23rd March, 1991 at Degarwela, to a wheat field near Darbar Saidan Shah and to have committed sodomy upon him.
Ahmad Ali, P.W.3 and Nawaz, P.W.7, were said to have witnessed the occurrence on hearing the cries of the victim. The appellant was alleged to have run away. Muhammad Khan was brought home by Ahmad All and Nawaz who narrated the incident to Muhammad Rafique, P.W.2. The matter was reported to the police next day.
2. On the 24th March, 1991 at 12-30 p.m., Muhammad Khan was examined by Doctor Sajjad Latif, Senior Medical Officer, Rural Health Centre, Malka Hans, P.W.6. The following are the observations of the Medical Officer touching examination of Muhammad Khan:--- ' On examination a child of age about 6 years wearing white dirty clothes, child was bit terrified, Shalwar was blood--stained on its posterior side i.e. against the gluteal region, multiple, small bruises on the back (10 in number) of different sizes. On local examination no lesion on buttock.
Perineal area is slightly abraded. No stain. Anus is tightly closed. No stain. Three rectal swabs have been taken, sealed and despatched to Chemicel Examiner, Multan.
' The swa bs were found by the Chemical Examiner per his report, Exh. P.C. to be stained with semen.
The Medical Officer opined that sodomy had been committed with Muhammad Khan. Exh.P.E. is the copy of the medico-legal examination report.
3. The appellant was arrested on the 1st May, 1991, by Shah Nawaz, Sub-Inspector of Police, Police Station Malka Hans, P.W.B. The same day he was examined by Doctor Sajjad Latif and was found to be fit to perform sexual act. Exh. P.F./1 is the report of the Medical Officer in this behalf.
4. The appellant denied having taken Muhammad Khan to the field and having committed sodomy with him. In his examination under section 342 of the Code of Criminal Procedure he explained his position and that of the victim in the following words:--- "Muhammad Khan victim fell from my cycle and was injured when we were passing in the Chowk of the village. The father of Muhammad Khan came to our house for complaining against me for the injuries of his son where he had a quarrel and exchange of abuses with my parents. He felt annoyed and contacted the Lambardar of the village who manoeuvred with the police and falsely involved me in this case. The prosecution story is totally fabricated and fictitious. P.Ws. Muhammad Rafiq, Ahmad All and Nawaz the alleged eye-witnesses of the occurrence and the complainant who is the real father of the victim have not supported the prosecution version. Muhammad Khan P.W. minor has deposed against me on the pressure of the prosecution and as tutored by the police."
' He did not like to examine himself on oath nor he gave any evidence in defence.
5. Muhammad Rafique, P.W.2, Ahmad Ali, P.W.3 and Nawaz, P.W.7 did I not support the prosecution version of the case. Actually they had been allowed to be cross-examined by the prosecution.
However, nothing tangible could be extracted by the prosecution in cross-examination. Nawaz P.W.7, supported the A version of the case given by the appellant. Though Muhammad Khan, in examination-in-chief, said that the appellant had committed carnal intercourse with him in his cross-examination he sided with the appellant. The following statement appearing in his cross- examination is reproduced below verbatim:--- "The accused carried me on a cycle. When we went on cycle the accused made me to fall from the cycle and I received injuries. The blood also oozed out from my nose. It is correct that my father then went to complain at the house of accused where they had a quarrel. It is correct that then my father went to Lambardar and Lambardar took him to police station. The Lambardar then tutored us to say before the Police Inspector that the accused had committed carnal intercourse with me."
6. In view of the above, it is difficult to hold that the charge of commission of sodomy against the appellant could be said to have been established beyond doubt. The conviction of the appellant recorded by the learned trial Court cannot, therefore, be upheld. The appeal is consequently accepted, the conviction of the appellant recorded and the sentence awarded to him by the learned trial Court are set aside and he is acquitted. He shall be set at liberty forthwith if his detention is not required in connection with any other case.