' MUHAMMAD YUNUS SURAKHVI, J.- Appellant, Azhar Aziz, having been tried and convicted to 15 years' imprisonment along with 30 stripes for committing the offence under section 12 of Zina (Enforcement of Hudood) Act of 1985 (hereinafter to be referred as Zina Act) and the imprisonment for 10 years with fine of Rs.10,000 for the offence under section 377, A.P.C. And in case of default in payment of fine to undergo further imprisonment for one year by District Criminal Court, Mirpur, vide its order, dated September 29, 1994, preferred an appeal before the Sha.Riat Court which vide its order, dated December 20, 1995, upheld the conviction. However, under section 12 of Zina Act the sentence was reduced to 6 years and 30 stripes, and under section 377, A.P.C. To 4 years and a fine of Rs.10,000. The aforesaid order of the Shariat Court has been assailed through this appeal.
2. The brief facts of the case of the prosecution, as disclosed in the F.I.R. Lodged by Muhammad Ayub, first informant, the father of victim, at Police Station, Mirpur on December 26, 1990, at 4-00 p.m. Are that he was serving as a Senior Clerk in the Office of District Education Officer (Female), Mirpur. He was residing in Quarter No,E-5, situate in Staff Colony, Mirpur. On December 26, 1990, after leaving his office when he reached Staff Colony at about 3-30 p.m., he heard the cries of his son, Munib Ayub, from Quarter No,E-7. Upon this he was attracted to the scene of occurrence and entered in Quarter No,E-7 wherein, he found that appellant-convict, Azhar Aziz, was committing unnatural offence with his son Munib Ayub aged 3-1/2 years at the relevant time. The first informant intervened and saved the victim from the clutches of the appellant but he managed to run away from the place of occurrence. He tried to chase him but could not succeed in apprehending the appellant-convict. Upon this report a case was registered under section 12 of the Zina Act and after completion of the investigation police submitted a challan before the District Criminal Court, Mirpur, and the accused-appellant was forwarded to face the trial under section 12 of Zina Act and section 377, A.P.C.
3. The accused-appellant in his statement under section 242, Cr.P.C. Denied the allegation levelled by the prosecution.
4. The prosecution in support of its case examined Muhammad Ayub, first informant, Munib Ayub, minor victim, Abdul Ghafoor, Tanweerul Hassan, Imdad Hussain, Constable, Nazir Hussain, Constable, Dr. Arshad Mehmood, Dr. Sardar Muhammad Daud, Hassan Askari, Sub-Inspector and Abdul Razzaq, D.S.P. (Headquarter). Out of these witnesses Muhammad Ayub, first informant, and Munib Ayub are the eye-witnesses of the occurrence. Abdul Ghafoor is stated to have reached soon after the occurrence and the prosecution story was narrated to him by Muhammad Ayub.
Tanweerul Hassan has resiled from his statement made before the police under section 161, Cr.P.C.
Imdad Hussain and Nazir Hussain, Constables, are the marginal witnesses of the recovery of clothes both from the victim and the accused-appellant. Dr. Arshad Mehmood examined the victim of offence, Munib Ayub, soon after the occurrence and submitted his report Exh.P.G. In the opinion of doctor unnatural offence was possible to have been committed with the minor boy. Dr. Sardar Muhammad Daud medically examined the accused-appellant and submitted his report Exh.P.K. After forming the opinion that accused-appellant was capable of performing the sexual act. Hassan Askari, Sub-Inspector conducted the investigation, recorded the statements of witnesses under section 161, Cr.P.C., took into possession the clothes of Munib Ayub, victim, as well as that of the convict-appellant, which were allegedly stained with semen and blood, in presence of marginal witnesses Imdad Hussain and Nazir Hussain, Police Constables. Raja Abdul Razzaq, D.S.P. Completed the challan and submitted it before the Court.
5. The District Criminal Court as well as the Shariat Court found the appellant guilty of offences under section 12 of the Zina Act and section 377 of A.P.C. Both the Courts placed explicit reliance on the evidence of eyewitnesses, namely Muhammad Ayub, first informant, and Munib. Ayub, the victim of the offence. According to both the trial Court and the Shariat Court the statements of eye-witnesses were sufficiently corroborated by the evidence of Dr. Arshad Mehmood, who examined the victim. The Shariat Court discarded the evidence of Abdul Ghafoor, Rakshaw Driver, who reached the scene of occurrence soon after the incident on the ground that according to the statement of this witness the prosecution story was narrated to him by Muhammad Ayub, first informant, but Muhammad Ayub when appeared as a witness denied the occurrence having told to the witness.
6. Mr. Muhammad Riaz Alam, the learned counsel for the appellant-convict, vehemently contended that the trial Court as well as the Shariat Court have fallen in grave error in relying upon the uncorroborated testimony of the eye-witnesses. The learned counsel submitted that Dr. Arshad Mehmood, who examined Munib Ayub, the victim of offence, on the day of occurrence, simply submitted a provisional report and opined that unnatural act may be possible. It was strenuously contended by Mr. Riaz Alam that even the doctor was not sure with regard to the commission of unnatural offence on the person of victim. While elaborating his point of view, the learned counsel maintained that it was specifically mentioned by the doctor in report Exh.P.G. That pieces of Shalwar were sent to the Chemical Examiner, Lahore, for report and the final report would be given on the receipt of Chemical Examiner's report. Subsequently the prosecution failed to produce the report of Chemical Examiner. Had the report of the Chemical Examiner been produced by the prosecution, it would have gone against the version of the prosecution. The learned counsel has also argued that according to the site plan, the alleged act of sodomy was committed in a room whereas in his statement it is stated by Muhammad Ayub, the first informant, that act of sodomy was being committed in the corridor of Quarter No,E-7. According to the learned counsel this was a material contradiction casting a serious doubt on the story of the prosecution. Alternatively, it was argued by the learned counsel that ingredients of offence under section 12 of the Zina Act have not been fully established by the prosecution. It was the duty of the prosecution to prove that the intention of the accused-appellant was to kidnap the victim for the purpose of committing the unnatural offence. Mere removal of the victim for a few paces would not amount to kidnapping but the intention from the attending circumstances appears to be that of committing sodomy. In this view of the matter section 12 of Zina Act has no application, keeping in view the facts and circumstances of the case, submitted the learned counsel. The learned counsel in support of his contention relied on reported cases Muhammad Akhtar v. Muhammad Shafique and another 1986 SCM R 533 and Shamas Saeed Ahmad Khan v. Shafaullah and another 1985 SCM R 1822. Lastly the learned counsel for the defence submitted that it was always unsafe to rely on the testimony of a child witness for the simple reason that he could be easily tutored by the interested persons. To substantiate his contention, he cited Sultan and another v.
' The State PLD 1965 Kar. 615 and Sona Miah v. The State PLD 1960 Dacca 396.
7. Controverting the arguments raised by the learned counsel for the appellant, Mr. Muhammad Akram Mughal, the learned Additional Advocate-General, fully supported the impugned judgment recorded by the Shariat Court. According to the learned Additional Advocate-General the prosecution case stood fully established from the testimony of Muhammad Ayub, first informant and Munib Ayub, the victim of unnatural offence. The ocular testimony of these witnesses was corroborated according to the learned Additional Advocate-General by Dr. Arshad Mehmood. The mere fact that the report of the Chemical Examiner was not produced by the prosecution no adverse inference could be drawn against the prosecution. The learned Additional Advocate- General submitted that minor boy was removed by the appellant-convict in the first instance and was then taken to the corridor of the quarter of the appellant, wherein, the unnatural act was committed on him. The minor boy fully corroborated the statement of his father Muhammad Ayub and there was sufficient material on the record justifying the conviction recorded by the trial Court and the Shariat Court.
8. We have given our passionate thought to the arguments addressed at the bar by the learned counsel for the parties and perused the record including the impugned judgment with care. At the very outset it may be pointed out that the prosecution evidencc has been appraised both by the trial Court as well as by the Shariat Court and both the Courts have upheld the conviction. We have also examined the evidence. Muhammad Ayub, first informant, and Munib Ayub, the victim, have narrated the necessary details of the occurrence. Muhammad Ayub, first informant, on hearing the cries of his son Munih Ayub went to the scene of occurrence and saw that the appellant-convict was performing the act of unnatural offence with his son whose Shalwar was put off by the convict.
Munib Ayub, the victim of offence, though, a kid of about 6 years at the time he appeared in the Court for getting his statement recorded also corroborated the prosecution version in material particulars. The statements of these witnesses in our view are corroborated by the evidence of Dr. Arshad Mehmood, who stated in the Court as a witness that on the basis of report Exh.P.G., submitted by him it was found that unnatural offence was committed upon the victim but the fact remains that in the report it has been opined by the doctor that unnatural act may be possible. In our view the mere fact that doctor has mentioned in his report that unnatural act may be possible does not cast any doubt on the report submitted by him, especially so when on the examination of the anal region it was opined by the doctor that it was stained with blood and there was tenderness and laceration on it so despite the fact that there is a growing demonstration of inefficiency on the part of Medical Officers nowadays who prepare the medico-legal reports. But keeping in view the overall facts and reading the medico-legal report as a whole we have reached the conclusion that the unnatural offence was committed upon the victim. So in our view trial Court as well as the Shariat Court committed no error in relying upon the medical report as a corroborative piece of evidence.
9. The contention raised by the learned counsel for the appellant-convict that in the statement before the Court it was deposed by Muhammad Ayub, first informant, that offence was committed in the corridor of the quarter whereas in the site plan point No,1, the place of occurrence, is shown, as the room of the quarter, merits no consideration. Firstly the witness has explained in his statement before the Court that in the corridor of the quarter a room has also been built and secondly this contradiction, if at all, appearing in the statement of witness was not put to the witness so that he could have given an explanation of it. If a witness is not confronted with his previous statement and no explanation is sought from the witness that contradiction cannot be taken into consideration. Even otherwise, we are of the opinion that such like minor contradictions which do not substantially affect the material particulars of the prosecution story cannot be taken into consideration.
10. The evidence of Abdul Ghafoor who is stated to have reached the place of occurrence soon after the incident has rightly been discarded by the Shariat Court on the ground that this witness deposed in his statement before the Court in unambiguous terms that the incident was narrated to him by the first informant, whereas Muhammad Ayub, has denied the narration of any incident to this witness. Similarly the evidence of Imdad Hussain, Constable, and Nazir Hussain. Constable, the marginal recovery witnesses of the clothes of victim and the appellant-convict, stated to be stained with the blood and semen, is also ruled out of consideration for two-fold reasons:--
(i) The clothes, according to the witnesses were taken into possession at the police station, whereas the fact of the matter was that recovery took place in the hospital; and
(ii) that the clothes were stained with the blood and semen and the same were sent to Chemical Examiner for his report but the report was not produced by the prosecution.
As we have held earlier that the testimony of eye-witnesses has been sufficiently corroborated by the evidence of Dr. Arshad Mehmood, the mere fact that report of Chemical Examiner has not been produced by the prosecution does not detract from the other incriminating evidence against the accused connecting him with the commission of the offence, nor an adverse inference could be drawn against the prosecution for non-production of the report of Chemical Examiner. Reliance in this regard is placed on the case of Gul Muhammad v. State 1976 SCM R 367, wherein it was held as under:-- "It has been contended before us that although the Shalwar of the victim was sent by the police for examination, no report was produced by the prosecution. It is true that the prosecution has not produced such a report nor appears to have given any reason for such non-production. Under the facts and circumstances of the case however, we do not think that any inference adverse to the prosecution should be made in this case."
11. Another significant reason for relying on the evidence of eye-witnesses is that they have no animus or grudge against the accused-appellant to enrope or implicate him in the offence and let off the real culprit. No such animosity has been suggested to the witnesses in the cross- examination. The dispute over some quarter seems to be a concocted and afterthought defence which has no real basis or any legs to stand upon. From the evidence on the record it transpires that there was no enmity of the accused-appellant with the first informant, the father of the victim.
The victim at the time of commission of offence was admittedly of the age of 3-1/2 years. Obviously there seems to be no earthly reason of the enmity of the boy of this tender age with the appellant.
So far as the question of substitution is concerned that is very rare and it may arise under exceptional circumstance. No respectabfe family could take the risk of disrepute and humility at the cost of family honour by implicating an innocent person and letting off the real culprit.
12. The plea raised by the learned counsel for the appellant, that keeping in view the circumstances of the case and the fact that it was deposed by Munib Ayub that the appellant-convict had removed him from his quarter to the quarter of appellant-convict and committed the unnatural offence, the case does not fall within the purview of section 12, Zina Act, is not found to be without any substance, on careful consideration. In the case referred by the learned counsel for the appellant Muhammad Akhtar v. Muhammad Shafique and another 1986 SCM R 533. It was opined by the Supreme Court of Pakistan at page 536:- "It was borne out from the evidence and has been held by both the Courts that the removal of Nadeem Akhtar was of only a few paces and that its object and purpose was to commit sodomy and not at all to remove or take away the child from the lawful guardianship. It was removal from the lane to the Baithak a matter of few paces. We have in a recent decision Shams Saeed Ahmad v.
Shafaullah and another Criminal Appeal No,17(S) of 1983 dealt with this legal issue in the following words:- ' As regards the other charge, criminal liability under section 12 of the Ordinance, like other offences of the category, depends on the existence of the intention or reasonable knowledge of the person accused of the crime. If the intention be to kidnap or abduct for the specified purpose, or kidnapping or abduction is coupled with the reasonable knowledge of the likelihood of the specified purpose then the offence will definitely fall under section 12 of the Ordinance. If, however, the intention be to commit the very act indicated as the purpose with no intention to commit kidnapping or abduction then merely because the victim was moved a few paces in terrorism or shoved along, for safe and unobtrusive achievement of the intended purpose will not make an additional offence under section 12 of the Ordinance' ."
In the other case Shamas Saeed Ahmad Khan v. Shafaullah and another 1985 SCM R 1822, the same principle was reiterated. Respectfully following the above-referred judgments of Supreme Court of Pakistan and applying the aforesaid principle the evidence in this case indicates that the removal of minor Munib Ayub from his quarter to the quarter of appellant-convict, even if it is said to be an abduction, it was neither intended nor was the object of the crime. The intention appears to be to commit sodomy and sodomy alone. In such a situation the basic ingredients of section 12 of Zina Act are lacking and the offence under section 12 of Zina Act is not made out. We, therefore, set aside the conviction of the appellant recorded by the trial Court and the Shariat Court under section 12 of Zina Act and acquit him of the offence under section 12. As regards the conviction of the appellant under section 377, A.P.C. It is based on evidence. The conviction has been upheld by both the Courts. Keeping in view the younger age of the appellant and also the fact that he was the first offender the Shariat Court has awarded him the sentence of 4 years' imprisonment under section 377 and a fine of Rs.10,000 and on his failure to pay the fine he will undergo further imprisonment of one year is a legal sentence and all the material factors have been considered by the Shariat Court. Thus, we do not see any cogent reason to interfere in the sentence awarded to him under section 377, A . P . C .
12. The last contention raised by the learned counsel for the appellant that conviction based on the testimony of child witness is always dangerous because child is capable of being easily tutored merits no consideration for the simple reason that in the cases cited by the learned counsel for the appellant the principle laid down is that conviction on the solitary statement of child witness who makes improvements cannot be based. This principle has no relevancy in the instant case. The argument is therefore, repelled.
14. For the foretasted reasons we partly accept the appeal in the terms indicated above and set aside the conviction and sentence of the appellant under section 12 of Zina Act and acquit him of the offence. However, his conviction recorded by trial Court and Shariat Court under section 377, A.P.C. Is upheld. The fine, if realised, from the appellant-convict shall be paid to the victim of the offence. To this extent the appeal merits no. Consideration which is hereby dismissed.