Complainant- Mahmood Ahmad was employed as Health Inspector in the Health Department and was posted in Dispensary of Township Lahore. His wife Mst. Asmat Sultana was also employed as '
Dai' in the Health Department. On 13-7-1992 when the complainant went to his house in official quarter after performing his duty, he was informed by his wife Mst. Asmat Sultana that on 9-7-1992 both the appellants herein, Imtiaz dhmad and Shabbir Ahmad, had taken their son Iqbal aged about 10 years to the adjoining quarter and had subjected him to sodomy. The complainant submitted written complaint in Police Station Mustafa Abad, Lahore where F.I.R. No.236 of 1992 was recorded. The complainant also mentioned in the written complaint that on account of Muharram duty he had not gone to the house till 13-7-1992 and that was the reason for delay in the report.
2. The alleged victim Iqbal was medically examined on 13-7-1992 by P. W.4 Dr. Shahzad Hussain, according to which there were two scabbed abrasions in front of left side of chest and right side of upper part of neck of the alleged victim and lacerations on the anal margins. The doctor also took anal swa bs which were found stained with semen by the Chemical Examiner. Both the appellants were sent up for trial before the Additional Sessions Judge, Kasur who charged both of them under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C.
Both the appellants pleaded not guilty to the charges and claimed trial.
3. Ten prosecution witnesses were examined during the trial whereas both the appellants made deposition under section 342, Cr.P.C. However, they neither produced any defence nor made any deposition on oath.
4. After conclusion of the trial the learned Additional Sessions Judge convicted both the appellants under section 377, P.P.C. And sentenced each of them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 1-1/2 years.
Both the convicts have challenged their conviction and sentence by the appeal in hand.
5. I have heard learned counsel for the parties at length and have also gone through the entire record of the case.
6. The alleged victim Iqbal appeared as P.W.8 during the trial. Although he charged both the appellants for subjecting him to sodomy in his examination---in-chief yet during cross- examination it transpired that the boy was somewhat abnormal. His reply to many questions was that "I do not know" but he time and again insisted that both the accused had subjected him to sodomy on 9-7-1992. It can be gathered that he was a tutored witness. He had also stated that nobody had seen the accused committing sodomy with him. As such he excluded the testimony of his own mother P.W.7 Mst. Asmat Sultana as an eye--witness.
7. It is very strange that although the anal swabs were taken 4 days after the alleged occurrence yet those were found stained with semen which is impossible because semen is invariably washed away by the passing of stools within 24 hours.
8. The defence of both the appellants was that they all were employed in the Health Department and one of them had complained against the mother of the alleged victim as she indulged in the practice of abortion and used to charge heavy fees for that. Since the parents of the alleged victim were also employed in the Health Department, they appeared to have manoeuvred to obtain a false medical report. Although semen cannot remain in the anus beyond 24 hours, yet the doctor falsely stated that it could be detected even after 8-9 days of the occurrence which is next to impossible.
9. The delay in making the F.I.R. Has also not been fully justified. If the father of the boy was not present, the mother could have very conveniently I recorded the F.I.R.
10. No cogent and convincing evidence had been produced in support of the allegation of the complainant party. On the contrary various investigations showed that the appellants were innocent and had been falsely implicated.
11. Consequently the appeal is accepted. The conviction and sentence of the appellants recorded on 31-8-1994 by the learned Additional Sessions Judge, Kasur are set aside and they are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.