' ABDUL WAHEED SIDDIQUI, J.--- Complainant Muhammad Faisal (P.W.4) a student of ninth Class of 15 years of age of village Hassal, District Chakwal appeared at Police Station Neela on 17-11-1994 at 4-30 p.m. And lodged F.I.R. Alleging therein that while he was on way to Chakwal accompanied by co-villagers Sher Baz and Arshad Mehmood (P.W.6) on 13-11-1994 around 11 a.m., for a purpose of seeing a tournament, they were intercepted by the appellants in Criminal Appeal No,19/I of 1996 (respondents Nos.1 to 3 in Criminal Appeal No,31/I of 1996). Appellant Faisal Mehmood caught hold of him from his collar, appellants Azhar Iqbal and Muhammad Iqbal made the accompanying co- villager two boys to flee away after giving them fist blows and kicks and then he was dragged into a nearby pit where all the three subjected him to carnal intercourse against the order of nature. He remained crying due to pain and became semi-unconscious. The appellants ran away after satisfying their lust. There then the two co-villager boys, who were seeing the entire incident from hiding, appeared and helped him to reach his house. The appellants remained trying for compromise, but the mother of the complainant victim boy did not agree and brought him to police station to lodge F.I.R. That was the reason for delay in lodging F.I.R.
2. The alleged victim complainant Muhammad Faisal was medically examined on the date of report at 11-30 p.m. By Dr. Munir Ahmed Langham (P.W.1) who found scabbed. Multiple abrasions on both elbows and fore-arms (backside) of the victim and also tears within sphincter at 6 and 11 O'clock position. Two anal and one perianal swabs were sent to the Chemical Examiner who reported vide Exh.P.B. That the same were stained with semen and blood. The doctor opined that the victim was subjected to unnatural sexual intercourse.
3. Prosecution examined eight P.Ws. Dr. Munir Ahmed (P.W.1) gave his opinion as aforesaid.
Muhammad Duraiz, Head Constable (P.W2) deposed about recording F.I.R., sending the victim through Muhammad Ejaz P.C. (P.W.3) for medical examination, receiving and keeping in safe custody the sealed phials and a sealed envelope on 18-11-1994 at 9 a.m. From S.-I. Rehmat Khan and handing over the same on 20-11-1994 to P.C. Muhammad Ejaz (P.W.3) for delivery to the Chemical Examiner, Rawalpindi, P.W.3 has corroborated P.W.2 with an addition that on 17-11-1994 night he handed over a carbon copy of M.L.R., a sealed phial containing swabs and a sealed envelope to S.-I. Rehmat Khan. Muhammad Faisal (P.W.4) is the victim boy who has deposed confirming the F.I.R. Dr. Muhammad Iqbal (P.W.5) examined all the three appellants and found them medically fit to perform the sexual act. Arshad Mehmood (P.W.6) is one of the two ocular witnesses and has corroborated the victim in all the material particulars. Rehmat Khan, (P.W.7) is the first Investigation Officer who reached the spot on 17-11-1994, prepared rough sketch of the spot (Exh.P.J.), took statements of witnesses under section 161, Cr.P.C. Received from Muhammad Ejaz (P.W.3), the sealed bottle containing swabs etc. At 2-40 a.m. On 18-11-1994 vide possession Memo.
Exh.P.E. And handed over the property to the Moharrir intact. Abdul Saleem, Inspector Police, second Investigation Officer (P.W.8) initiated investigation on 2-12-1994, reached the spot, arrested Azhar Iqbal and Muhammad Iqbal on 13-12-1994 and got them medically examined for the purposes of potency. He challaned the appellants in the Court.
' Appellants gave statements under section 342, Cr.P.C. And an affidavit of Sher Baz (Exh.D.B.) in their defence who was originally one of the two ocular witnesses for the prosecution but was given up for having been won-over by the appellants.
3. Appellants, were charged by the Court of Additional S'ssions Judge, Chakwal under sections 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 377, P.P.C. And after the trial the same Court acquitted them under first charge whereas convicted them under section 377, P.P.C.
And sentenced each of them to 10 years with a fine of Rs,5,000 the default in payment of which called for further R.I. For six months. Half of the amount, if recovered, was adjusted to be paid to the victim as compensation. Benefit of section 382-B, Cr.P.C. Was also given.
' This judgment, dated 17-1-1996 is impugned before us by the appellants/accused in Criminal Appeal No,19/I of 1996 with prayer for acquittal and by the complainant/victim with prayer for conviction under seciton 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and award of maximum punishment under the said section and enhancement of sentence under section 377, P.P.C. We propose to dispose of both these appeals by this judgment.
4. The learned counsel for convicted appellants has vehemently contended that the only corroboration of victim's deposition is, admittedly, the deposition of Dr. Munir Ahmed (P.W.1) who has himself deposed that the final opinion about the alleged offence will be given on receipt of the report of Chemical Examiner and then in the light of the report that all swabs were stained with semen and blood he concluded that the examinee was subjected to unnatural sexual intercourse.
It means that the locus stand of the final opinion of the only corroboratory evidence in favour of the deposition of Muhammad Faisal (P.W.4), the victim, is the positive report of Chemical Exminer Exh.P.B. In the circumstances of the case, the swabs sent to the Chemical Examiner were obtained on 17-11-1994 at 11-30 p.m. Whereas the alleged act of sodomy was performed on 13-11-1994 at about 11-00 a.m. According to the learned counsel the anal swabs etc. Taken 4-1/2 days after the occurrence could not result into a positive report of Chemical Examiner in the natural course.
Muhammad Faisal (P.W.4), the victim has admitted during cross that on the preceding night (of occurrence) he had taken meals at midnight, and on the day of occurrence he left his house after taking tea, but then he did not take meals for about 4/5 days after the occurrence and only took water. The counsel for defence is insistent that during all this period the victim must have eased himself much before his medical examination Qpecially when he had taken meals at midnight and tea in the morning before the occurrence. If so, then as observed in ruling of this Court at placentium B of 1996 M LD 457 that the swa bs taken 4 days after the alleged occurrence found stained with semen was impossible because semen is invariably washed away by the passing of stools within 24 hours. Therefore, in the present case the victim must have eased and consequently the report of Chemical Examiner is a procured one. Factual position is totally different in this case and the two are distinguishable in each and every detail. In the present case no suggestion is made to the victim (P.W.4) as to whether he had eased himself between taking meals at midnight of the preceding night of occurrence and the approximate time of occurrence around 11 a.m. After the occurrence, whether the victim was in a position to ease himself or not has been replied by the victim himself in the following words, "I did not take meal for about 4/5 days of the occurrence and took only water". Coupled with this is a circumstance which has been declared by Dr. Munir Ahmad (P.W.1) in the following words of his examination-in-chief, "On local examination I found that a larger tear at 6 O'clock and smaller tear 11 O'clock." Naturally then a victim in the pain of tears within ani-sphincter of rectum coupled with mental condition of shame might have avoided to take meals for 4/5 days or might not have felt appetite at all and resultantly must not have eased for all this time. In special circumstances it is possible even to live without eating and easing for months what to say of 4/5 days. Violate fasting unto death is seen commonly in the modern times in political spheres and people have lived for months under such conditions. Again in the cited case of this Court and the present one there are other clear points of distinction. For example in the present case medical examination is indicating multiple abrasions on both elbows and fore-arms (back side) of the examinee. These are the abrasions caused in the case of coerced victim of sodomy in the natural course. In the cited case it was not so. There were two scabbed abrasions in front of left side of chest and right side of upper part of neck of the alleged victim. Forced sodomy, if not coupled with beating, do not result in abrasions at the parts of the body as shown. Then in the cited case the victim's reply to many questions was, "I do not know". He apepared to be somewhat abnormal and was gathered to be a tutored one. He had also stated that nobody had seen the accused committing sodomy with him. The present case is on different footings. Consequently this contention is repelled.
5. The impugned judgment has also been assailed by the convicted appellants on the point that it has not considered an inordinate unexplained delay in reporting. We have pondered upon this contention from the point of view as to whether this delay of four days and some hours generates doubts in the story of prosecution. Firstly we find in F.I.R. An explanation for delay that accused A appellants were requesting for not lodging complaint for all these days, but then the complainant was finally brought by his mother for report at police station. Column No,1 of F.I.R. Is indicative that there existed some earlier report No,11 on the record of police and with its reference this F.I.R. Was lodged at 4-30 p.m. On 17-11-1994. In his examination-in-chief, Muhammad Faisal (P.W.4) has explained this situation in the following words: "For about three/four days, the parents of accused persons requested us for a compromise". Delay in rape cases is a universal phenomenon. It cannot be brushed aside unless the very commission of offence itself is clearly dubious. Quoting from the book "Understanding the Rape Victim", written by experts like Sedelle Katz and Marry Ann Mazur of the Department of Psychiatry, University of Washington, U.S.A. (Publication 1979 by John Willey & Sons, New York, page 191):-- "Whereas most crimes permit complaints years later without undermining credibility, for rape the statute of limitations is 30 days in Colorado, three months in Connecticut, six months in New Hampshire, 12 months in Massachusetts, and 18 months in Towa. The majority of rape victims decided not to report at all. Instead of penalizing the victim who delays in reporting the case, she should be rewarded by kindness and consideration for her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being."
' This observation is equally applicable upon male victims of rape as well. After all their male-ego and family honour is involved and in the social fabric of Pakistan Nekmards of the area do make efforts for compromise specially when the parties belong to the same village and/or tribe. This creates double mindedness of the young victim and his guardians ultimately resulting into such delays. We find that in the present case both the parties are all the sundry residents of the same village Hasil and all of them are Bhatti by caste. Police record itself is indicative that dozens of Nekmards on both the sides were indulging into hectic efforts for compromise which resulted into this delay. Medical and other evidence is clearly suggesting that the victim has been molested severely and the existence of animus with the examining doctor has not even been suggested.
Consequently we consider this delay to be a natural result of the socio-ethnic situations coupled with painful mental condition of the victim and his close relatives. The contention is rejected accordingly.
6. Now we turn to the ground that there are substantial contradictions among P.Ws.4, 6 and 8 which generate doubt in the story of prosecution. Muhammad Faisal (P.W.4) is deposing during cross: "Master Irfan is not known to me ... It is incorrect to suggest that Mr. Han is also attached with my school. I do not knoW any Han of my village". Abdul Saleem (P.W.8), Investigating Officer of the case, deposes: "The mother of victrim and one Irfan alongwith so many others appeared from the complainant's side. Irfan aforesaid stated before me that he took the victim to the S.P., Chakwal and got registered the case". Arshad Mehmood (P.W.6) deposes: "Master Irfan is present outside the Court. Master Irfan and I reached Chakwal yesterday and had a night in the house of Zulfiqar, a maternal uncle of the victim. Faisal, P.W. Was also with us". In this situation it has been vehemently argued that Muhammad Faisal (P.W.4), the victim, is an absolute liar, in spite of the fact that he not only knew Master Irfan but was also in the knowledge that the said person was actively purusing his cause against the appellant yet he was so cleverly maneuvering his falsity to the extent that when it was suggested to him during cross as to whether Master Irfan was present outside the Court his reply was in negative. But in response to call by the Court, Master Irfan put in his appearance and informed the Court that he was attached with Hassal High School as a Science Teacher.
' Indeed it is evident that on this point the victim boy is clearly false. But it does not mean that his whole story is to be discarded. The maxim "falsus in uno falsus in omnibus" was long ago discarded by the superior Courts of Pakistan and the established principle of law is that chaff is to be sifted from the grain. We hereby discard this piece of evidence, but it does not create any impact on the prosecution story specially when the victim is completely corroborated by the medical evidence and then on this point of active participation of Master Irfan in pursuing the case the deposition of Arshad Mehmood (P.W.6), one of the two ocular witnesses of the commission of offence, is inspiring confidence.
' Another contradiction which has been relied upon is that Muhammad Faisal (P.W.4) is deposing that he and his two helpers returned home from the spot of occurrence at about 5/6-00 p.m.
Arshad Mehmood (P.W.6) is deposing that the village is about two miles away from the spot and they reached there within two hours. Consequently the victim must have reached his home by 2 or 3 p.m., but he is stating that they reached around 5/6 p.m. In the presence of preponderance of evidence favouring the story of prosecution this is considered by us to be the result of natural forgetfulness of details of events and is not substantial at all to discard the prosecution.
7. It has been contended that enmity between the parties is established. Appellants who have not examined themselves on oath under section 340(2), Cr.P.C. Have all and sundry replied to question No,8 in statement under section 342, Cr.P.C. As under:-- "On the day of occurrence myself and my co-accused persons were going towards the vilalge with a goat. Muhammad Faisal, Arshad Mehmood and Sherbaz P.Ws. Met us on the way and on our inquiry disclosed that they were going to Chakwal. We asked the P.Ws. Not to go to Chakwal at the cost of their studies. Arshad and Sherbaz P.Ws. Accepted our piece of advice and returned to their village whereas Muhammad Faisal P.W. Got annoyed which gave rise to an altercation. Myself and my companions gave minor beatings to him when he refused to accept their advice. After this incident Muhammad Faisal P.W. Went to Chakwal and returned home in the evening after seeing the tournament in a pick-up. No,396 driven by Muhammad Shafi. Aslam and Lal were the co- passengers of Muhammad Faisal P.W. Before the return of Muhammad Faisal P.W. His two companions Arshad and Sher Baz had informed his mother about the altercation which took place between him and ourselves. After coming to know about that incident the mother of Faisal P.W.
Reached village Ranjha in search of him. With the intervention of the respectables of the locality the said incident of altercation was patched up. Later on Master Irfan, who is inimical to us reshaped the actual incident and got us involved in this false case in connivance with the Medical Officer and the police."
' From this reply two questions are raised for proper appreciation. First is as to whether really minor beatings were given to the complainant. Second is as to whether Master Irfan reshaped the incident due to enmity with the appellant party. First question is negated by the medico-legal evidence. How could minor beatings in a minor altercation cause tears inside the sphincter and abrasions on elbows and back sides of forearms of the victim? No such suggestion even has been made to Doctor Munir Ahmed (P.W.1). On the contrary the suggestions made are about the duration of tears and the cause of abrasions being dragging. The appellants in their abovementioned reply have not made reference to dragging the victim to prove that the abrasion on elbows etc. Were caused as such. The conclusion about the first question naturally shall be that this story of minor beatings is an afterthought. So far as reshaping by Master Irfan is concerned, firstly his enmity with the appellants is not proved, secondly he was not in a position to reshape the episode as the exitence of tears and abrasions on the body and inside the rectum of the victim is an estbalished fact. Consequently this contention fails..
8. An objection has been raised by the defence, that Muhammad Faisal (P.W.4) has admitted during cross that Muhammad Ashraf is one of his maternal-uncle who resides about one furlong away from his house, yet neither he visited his house on the day of occurrence nor thereafter. His help was also not sought. This circumstance is generating doubt as it is against the natural conduct of humans in such situations. The logic of this objection is not at all comprehensible in the absence of any suggestion regarding the cause of such a conduct. Family and tribal relations are complex in nature and cannot be subjected to rigid laws like the laws of thermo-dynamics or chemical bonding of atoms. The objection is misconceived and is treated as such.
9. The learned counsel of complainant in Criminal Acquittal Appeal No,31/I of 1996 has contended that the trial Court has erroneously acquitted the accused from charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 because the victim was taken from the passage inside Kuddar about 900 feet away. According to him the offence of abduction is constituted. He has also argued that as compared to the heinousness of offence committed under section 377, P.P.C. The sentence awarded is too small and meagre.
' So far as the first contention about the constitution of the offence of abduction is concerned, it is resolved by the site plan (Exh.P.J.). The victim was taken from "Katcha Rasta" up to point No,1 where he was subjected to sodomy. Although the upper caption of the site plan declares that the map is without scale, yet about 1/3rd of the total distance covered is indicated to be 2-1/2 yards. This way the distance from Katcha Rasta up to place of sodomy comes to 7-1/2 or 8 yards. This is exactly what has been deposed by Rehmat Khan (P.W.7) S. I. And the first Investigation Officer. He has replied to a suggestion:-- confronted the victim on the path for the first time but this place is roughly 7-1/2 yards away from point No,2."
No suggestion was made to this witness about the incorrect rough measurement of this distance..
Consequently it stands established that it was taking away for less than 10 yards i,e, 30 feet and not 900 feet as claimed in the memo. Of appeal. We do not think that it is enough to constitute offence under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In this context we are fortified by ruling at citations 1988 SCM R 601, PLD 1993 FSC 12, PLD 1985 FSC 404.
There are no signs and signets appearing from the record of the case to generate aggravating circumstances for enhancement in sentence. Neither the victim is of tender age nor are there proof of sadism or torture or undue confinement for repeated and continuous acts of unnatural carnal intercourse nor G there is any allegation about any other perversion like coitus perpose or biting on buttocks and cheeks etc. Therefore, we hold that the impugned judgment is a balanced one having its locus standi on sound principles of justice.
10. The upshot of the discussion is that both the appeals fail. The impugned judgment is upheld.