1. ' Waqar-ul-Islam and Abid Iqbal, appellants have been convicted by the Court of Additional Sessions Judge, Rawalpindi on 18-12-1996 under Article 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to rigorous imprisonment for 10 years each with fine of Rs,20,000 each in default of which they would further undergo rigorous imprisonment for 2 years.
2. They also have been convicted under section 377, P.P.C. And are sentenced to rigorous imprisonment for 10 years each along with a fine of Rs,20,000 each in default of which they would further undergo rigorous imprisonment for 2 years each. Both the sentences given to the appellants are termed to run concurrently. Both the appellants are also given benefit of section 382-B, Cr.P.C. This judgment has been assailed through the present appeal.
3. ' The story of prosecution in brief is that the complainant Farrukh Faiz (P.W.3) lodged a report (Exh.P.E./1) at Police Station Kotli Sattian, Tehsil Kotli, District Rawalpindi on 20th July, 1994 at 1 a.m. In the night that on 19th July, 1994 at 7-15 p.m. He was proceeding towards his house after closing the shop of his father. On his way near High School Santh Anwali, Abid Iqbal (appellant) was standing and he also started walking alongwith him. About 50 metres away from School of Santh Anwali one Waqar (appellant No,1) was standing. On seeing him Abid Iqbal (appellant No,2) took out a Chhuri and on its point he asked the complainant to remain silent and took him almost 50 metres away on the right side and started grappling with him. The complainant tried to run away but both the accused caught hold of him and threatened him of murder in case he tried to defend himself or made hue and cry. Then Waqar placed the Chhuri on his neck, Abid opened his Shalwar and committed sodomy with him. Later on Abid took the Chhuri in his hand and Waqar committed the same act with him. Afterwards they left him and told him that in case he informed anybody he shall be murdered. In the meanwhile father of the complainant Haji Muhammad Faiz, his maternal- uncle Jameel Hussain (P.W.4) and his uncle Muhammad Taj reached there in his search. On seeing them both the accused ran away.
3. I have heard the counsel for the appellant and State. The counsel for appellant has contended, inter alia, that the medico-legal report does not support the story of prosecution; that the report of Serologist was not obtained; that statement of the victim is not corroborated by any other ocular evidence; that place of occurrence is surrounded by many houses whereas there is a jungle nearby and therefore, it was unnatural for the appellants for having committed such a heinous offence at such a busy place; that unsafe and irresponsible custody of parcel from the time of medical examination up to the delivery to the chemist is evident from the evidence; that the positive report of Chemical Examiner is in conflict with the medico-legal report, that neither offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is constituted nor offence under section 377, P.P.C. Is constituted; that the identification of the accused/appellants by Jameel Hussain (P.W.4) in pitch dark night in the light of a normal torch is not possible in the circumstances of the case; that the act of sodomy had been committed for almost one hour at a place surrounded by many houses, a busy road nearby and a school in which a Chowkidar is available for all times yet none was attracted to become an ocular evidence; that the injury sheet prepared by the Investigation Officer is in conflict with M.L.R. As well as with the complaint; that Sobedar Muhammad Aslam is appearing at Serial No,6 in Column No,6 of the challan as a prosecution witness but he was given up by the prosecution and this behaviour of the prosecution has attracted application of illustration (g) of Article 129 of the Qanun-e-Shahadat, 1984' that accused/appellant Waqar-ul-Islam has examined himself as D.W. And has also examined two other independent D.Ws. And therefore, there is oath versus oath nullifying each other; that none was made a witness from the locality of occurrence: that the enmity between the parties is proved from the evidence and finally reliance is placed on 1091 PCr.LJ 651, 1996 PCr.LJ 1161, 1995 M LD 950, 1987 M LD 1164, 1996 SCM R 533, 1995 Law Notes 819 and also reliance had been placed on Chapter 5 of Taylor's "Principles and Practice of Medical Jurisprudence" which chapter concerns medico-legal examination of the living. Counsel for the State has not supported the impugned judgment to the extent of the constitution of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, however, he has supported the judgment to the extent of conviction under section 377, P.P.C.
4. He has contended that Dr. Mushtaq Ahmed (P.W.1) has observed that most probably the act of sodomy has been done on the complainant which is corroborative to the deposition of Farrukh Faiz (P.W.3), the victim boy of 16 years of age. He has further contended that the deposition of Jameel Hussain (P.W.4) is inspiring confidence and in no way can be termed as a witness acting under the spell of animus and that allegation of the enmity is only hearsay and has no foundation on any documentary evidence and is an afterthought to save the appellants.
4. So far as the contention of the learned counsel for the appellants regarding the conflict among the medico-legal report, deposition of Dr. Mushtaq Ahmed (P.W.1), report of Chemical Examiner (Exh.P.B.) and complaint (Exh.P.E.) is concerned, it has been said at the Bar that although Dr. Mushtaq Ahmed (P.W.1) has deposed that most probably the act of sodomy has been done upon Farrukh Faiz (P.W.3), yet the injuries shown in M.L.R. (Exh.P.A.) has no nexus with the act of sodomy allegedly done by two healthy persons on a boy of about 16 years of age. Injuries shown are four in number which are scratches on both knee-joints, small scratches on both forearms, a bruise below right eye and bruises on outer part of left eye. Now it is the case of the prosecution that the victim boy was subjected to the act of sodomy first time. It has been contended vehemently that in such a circumstance there must appear some sort of lacerations, bruises, tears and injuries in the sphincter and muscosal wall and other parts around and inside of rectum of the victim. During the cross Dr. Mushtaq Ahmed (P.W.1) has deposed, "It is incorrect that I did not find any laceration and tear on the muscosal wall and sphincter. I did not mention the said fact in the M.L.R. As I did not deem it necessary. It is correct that in case sodomy is committed with boy of 16/17 years anal canal shall suffer redness and conjection". Earlier to this deposition this very prosecution witness had replied to a question during cross, as to whatever was observed by him was mentioned in the M.L.R.
5. Correctly. He did not notice the semen and blood on the genitalia of the victim as he did not deem it necessary to mention the same in the M.L.R. In the end of the cross the same witness has observed, "I did not send the semen for grouping. It is incorrect that I am in league with complainant party and I have prepared these false reports just to involve the accused". Now it was a case of sodomy which was referred to this witness for examination. Hellas clearly mentioned in the first line of M.L.R. (Exh.P.A.) that the young boy told that he was going back to his home in the evening yet two persons caught, threatened and did intercourse with him. With this brief history before this witness and the victim having been referred to him by the concerned police station for medical examination and report as to whether he was subjected to forcible intercourse against the order of nature or not. Yet the same witness is deposing on the one hand that he found laceration and tears on the muscosal wall and sphincter but he did not mention the said fact in the M.L.R. As it was not deemed necessary by him. And on the other hand in the same deposition he is stating that he did not observe any mark of violence on the perianal region of the victim. If seen from this angle, it turns out that this witness is not honest. He has also admitted during cross that he did not send the semen for grouping. This Court in its D.B. Decision reported as 1996 PCr.LJ 1161 has observed as under:-- "It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist. In cases of Zina the prosecution will be well-advised to obtain the semen of the accused and have it analysed by the Serologist for matching with the semen found on the swabs. This Court even earlier in the case of Mst. Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit with the semen found on the vaginal swabs. It was observed, "It is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina-bil-Jabr. The Police Officers in their reference to the Medical Officers should also in such cases invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swa bs and clothes/cloth etc., having seminal stains." Copies of the judgment were sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspectors-General, Police of the Provinces but the Investigating Officers have shown no interest in complying with the said direction and requiring the Medical Officers to obtain specimen of semen of the accused for comparison with the semen found on the vaginal swabs or the clothes/cloth etc. Having seminal stains. This is high time that these directions are followed in letter and spirit as this important piece of evidence will remove doubt if any with regard to the identity of the person committing Zina or Zina-bil-Jabr."
6. ' In another decision of F.B. Of this Court cited as 1991 PCr.LJ 651 the observation is:-- "In addition to the medical report, the report of the Chemical Examiner, which has been produced in Court by the D.D.A. Shows that semen was present on the rectal swabs and also on the Shalwar and Qameez of the boy. It is a pity that the semen was not matched, which if it had been done, would have been very helpful for a proper decision of the case."
7. ' Unfortunately, this witness has not only disobeyed the erections of the superior Courts in such cases but has also violated, either inefficiently or cunningly, the set and well-known rules of medical jurisprudence. Modi writes in his classic "Medical Jurisprudence and Toxicology, Edn. 1977, page 349 as under:-- "The following signs may be discovered if the body (passive agent) is not accustomed to sodomy:- -
(1) Abrasions on the skin near the anus with pain in walking and on defaecation, as well as during examination. These injuries are extensive and well-defined' in cases where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused.
8. Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. In most of the cases brought before Modi, he had seen superficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the sphincter ani. In some cases there may be bruising left on line anus beyond its sphincter.
(2) Owing to the strong contraction of the sphincter ani, the penis rarely penetrates beyond an inch, and consequently the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending horizontally inwards into the rectum. Modi had found lacerations internal to the sphincter ani in several cases, but a typical triangular wound only in a few cases. ... Swabs must be taken and examined microscopically and serologically."
9. ' Taylor instructs in his Classic on the "Principles of Medical Jurisprudence", Edn. 1986, Hong Kong page 72 as under:-- "A very careful search of the whole body surface must be made for signs of injury, and all injuries must be noted, including old injuries. Special attention must be given to signs of recent injury.
10. Bruises are often the most important corroborative sign of force, and the exact position, size and shape must be carefully noted. .... Abrasions, although very minor injuries in themselves, may have a medico-legal importance quite out of keeping with their lack of severity. These injuries may be the result of fingernail scratch marks; of frictional movements against a hard floor or ground; of scratches by thorns, grasses or other foliage. Of great importance are the very superficial abrasions that are frequently found on the flanks when underclothing has been roughly pulled down by an assailant. All abrasions must be carefully searched for, and their exact position, size, appearance and colour must be noted."
11. ' Another dishonesty on the part of the prosecution, from medico-legal point of view, is the report of Chemical Examiner (Exh.P.B.). It is declared that the anal swabs, anal swab hairs and the Shalwar of the victim are all stained with semen. Under the circumstances this report could not be positive about the anal swa bs. Dr. Mushtaq Ahmed (P.W.1) is deposing in his examination-in-chief. "He passed very small amount of stool sometime after the act of sodomy". The Urdu version of the same piece of deposition as appearing from the record is as under:- {{URDU TEXT}}.v (and he eased himself). Firstly the English and Urdu scribes of the trial Court appear to write versions depicting different shades of meanings, secondly it is a settled principle of medical jurisprudence that semen c inside the anus washes away in case the passive eases himself. In this context learned counsel for appellant has correctly relied upon a ruling of a D.B. Of this Court cited as 1995 M LD 950.
12. ' All these circumstances of the medico-legal side of this case are creating doubts in the story of the prosecution. Neither any violence on the genitalia or sphincter and extrenus, perinea flexture, peritoneum sphincter internus has been reported, nor has it been declared that the victim had not eased himself before medical examination. Consequently the opinion of the Chemical Examiner that anal swa bs were stained with semen is meaningless and appears to have been procured.
5. Now comes the term of appellants' contention that the transmission of swabs and Shalwar and parcels thereof has been done in a dubious manner and that the swabs are procured. It appears from M.L.R. (Exh.P.A.) that one Shalwar, one sealed Dibba and one sealed envelope were received by Maghfoor Ahmed C. No,4563 on 20-7-1994. Report of Chemical Examiner (Exh.P.B.) speaks of Abdul Razzaq (P.W.2) H.C. No,4291 to have delivered one sealed parcel containing 2 anal swabs, one slide, and swa b hairs and Shalwar on 28-7-1994. Abdul Razzaq (P.W.2) is deposing that on 21- 7-1994 Moharrir handed over him one sealed parcel and one envelope for delivery to the Chemical Examiner, but since Shalwar was not taken by him, the parcels were not delivered. On 24-7-1994 he took the said sample and Shalwar to the Office of the Chemical Examiner, but it refused to receive the same as the Shalwar was not in the parcel and M.L.R. Was also not with him. Again on 26-7- 1994 no deposit could be made due to the expiry of office time. Again he took the parcels of Shalwar and other parcels but were refused by the relevant office because injury statement was not with him and finally the delivery was effected on 28-7-1994. During cross this witness has admitted that his statement under section 161, Cr.P.C. Was not recorded by Investigation officer on 21, 24, 26, 27 and 28th of July, 1994 and was finally recorded on 31-7-1994. He has also admitted that the Shalwar and M.L.R. Could not be deposited as the same were not in sealed parcels. Although he has denied that he has tampering with the parcels during the custody of the same with him, but the abovementioned conduct do suggest the parcels have been kept in dubious manner. Almost to that same conclusion is leading the deposition of Muhammad Nawaz Moharrir (P.W.7)
13. Muhammad Yousuf (P.W.8) the Investigation Officer has also given evasive replies to certain suggestions made to him during cross which do strengthen the doubt created about safe custody of the parcels. He deposes "I do not recollect whether Shalwar was not sealed into parcel uptil 26- 7-1994. The parcel of Shalwar was not sealed by the Medical Officer. I have not mentioned the progress of case with regard to the sending of parcels to laboratories. Volunteered the same remained with the Moharrir and same has been recorded in Roznamcha. Since I was on leave therefore, I could not say as to what was got recovered by A.S.-I." In view of these circumstances of the case the benefit of doubt is given to the appellants. The impugned judgment is set aside.
14. Appellants shall be released forthwith in case they are not wanted in other cases.