This appeal is directed against a judgment delivered by the Court of Additional Sessions Judge, Rawalpindi on 20-1-1998 whereby appellant has been convicted under section 377, P.P.C. and is sentenced to R.I. for ten years and to pay a fine of Rs,20,000 and in default to further undergo imprisonment for one year. Benefit of section 382-B, Cr.P.C. is extended.
2. Complainant Jalal Khan (P.W.3) came across Sanaullah (P.W.9), A.S.I. of P.S.R.A. Bazar, Rawalpindi, who was on patrol duty alongwith other police personnel near Chungi No,22 on 4-8-1994 and reported to him the incident which was reduced to writing in the form of a Murasila Exh.PD. The incident narrated by the abovementioned complainant in brief is that he is resident in a rented house in Tench Bhata. His wife was admitted in C.M.H. Hospital and he had gone at about 9-00 p.m. towards the said hospital taking breakfast for her. While he was not present in his house, his son Khurram Shahzad (P.W.4), aged about 13/14 years, went towards a Kiryana Store to purchase biscuits at about 10-00 a.m. There then the appellant who is an employee in Lovely Music Centre called him. Then he closed the door of the said music Centre from inside, and committed sodomy with his son forcibly. When the complainant returned to home, his another son Asad Iqbal (P.W.6) informed him about the occurrence. He verified it from the victim who narrated the incident while weeping. Consequently he was taking the victim towards the police station to report that on his way this police party on patrol met him and sent the Murasila to the police station where an F.I.R.
Exh.PD/1 was lodged on the same date at 2/15 p.m. The appellant was arrested, challaned and charged under Article 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which he pleaded not guilty.
3. To prove its case, prosecution examined nine witnesses. Dr. Muhammad Ashraf (P.W.1), examined the victim on the date of occurrence at 2-30 p.m. and proved that although sodomy was done with the child, but on his body no mark of violence was observed. During cross he has admitted that if this act is done without consent of the victim for the first time, there should be some mark of violence on the body of the victim, although he has also deposed that anus was fully congested.
Dr. Munawar Hussain Gondal (P.W.2) examined the appellant and gave his opinion that there was nothing to suggest the possibility of inability to perform sexual act. Jalal Khan (P.W.3), the complainant and father of the victim, has proved the occurrence as informed to him by his sons.
Khurram Shahzad (P.W.4), the victim, has proved the occurrence. Mushtaq Ahmad (P.W.5), P.C. has proved his escort of the victim boy for medical examination and handing over to him one sealed phial and sealed envelope by the doctor and then production of the same to S.I. Akbar Ali vide memo. Exh.P.C. Asad Iqbal (P.W.6), elder brother of the victim, has proved narration of the occurrence to his father. Abid Hussain (P.W.7) P.C., has proved transmission of the sealed parcel of phial to the office of chemical examiner, Rawalpindi on 8-8-1994. Akbar Ali (P.W.8), S.I. and Investigating Officer of the case has proved recording of Murasila Exh.PD during patrol and preparation of injury statement Exh.PE of the victim. He has also proved all further steps taken by him during investigation till challanging the appellant to the Court. Sanaullah (P.W.9), A.S.I., Moharrir has proved drafting of formal F.I.R. Exh.PD/1 on the basis of Murasila Exh.PD and also keeping the sealed envelope and sealed phial intact into Malkhana as handed over to him on 4-8-1994 by Akbar Ali, S.I. He has also proved despatch of this material through Abid Hussain to the chemical examiner on 8-8-1994. In his statement under section 342, Cr.P.C. appellant has alleged the catering of some malice by the father of the victim due to some mischief done with him by the street urchin boys for which the appellant was also blamed. He has declined to be examined on oath and has not produced any witness in his defence.
4. I have heard both the counsel for appellant and State. The counsel for appellant has pointed out certain discrepancies between the evidence of P.W.3, P.W.4, and P.W.6. He has contended that the alleged place of occurrence was a shop on a busy road during day time and the cries of the victim could be heard easily, yet none was attracted; that there is conflict between injury sheet and medical evidence; that stains of semen on Shalwar were not produced; that victim is not sure about the time taken in the commission of the offence; that there is no independent or ocular witness; that the sole testimony of the victim is not a confidence inspiring one; that medical evidence is in conflict with the victim's evidence; that victim is a catamite habituated to the offence; that there is no report of serologist to connect the appellant with the offence; that this is in fact a case of substitution to rope the appellant due to caprice and animus. Counsel for State has supported the impugned judgment.
5. The first discrepancy which has been pointed out is alleged to be between P.W.4 and P.W.3.
Khurram Shahzad (P.W.4) is deposing:--- "Niaz accused signalled by waiving his hand. When Niaz accused signaled me I was standing at Khalid Karyana Store. I was buying biscuit from Khalid Karyana Store. The owner Khalid was present at that time. No other customer was present at that time on Khalid Karyana Store. I did not go towards Niaz accused on his signals. When I refused to the signal of Niaz he himself came to me from the shop. As soon as Niaz came to me he started dragging me. I made a noise when Niaz tried to drag me but no one attracted there to save me."
In conflict to this story of refusal of the victim to go to the appellant and his dragging, Jalal Khan (P.W.3), complainant, has deposed as under:--- "My son Khurram Shahzad went to buy a packet of biscuit from Khalid Karyana Store. There was another shop Lovely Music Centre and a person named Niaz alias Matho called my son to his shop and he closed the room and made an unnatural offence with my son. When I came back from C.M.H. Hospital my elder Asad told me about the incident. Then I asked my son Khurram Shahzad he told me by crime that Niaz had made unnatural offence with him."
Although a summary reading of both these pieces of evidence do appear to be a little bit different from each other but when contemplated about the real happenings it appears that only the occurrence was related to the complainant's father of the victim by his brother in a summary manner and details have come to light when the victim (P.W.4) has deposed. Even otherwise this is not that type of conflict which can set aside the entire episode. Even otherwise this dragging part is a later addition by the alleged victim as shall be shown later.
Second discrepancy to which indications have been made is a conflict between the medical evidence and that of victim. Dr. Muhammad Ashraf (P.W.1) who examined the victim on 4-8-1994 at 2-30 p.m. i,e,, 4-1/2 hours after the occurrence has deposed that on the examination of body no mark of violence was observed. Jalal Khan (P.W.3), father of the victim has also deposed that he did not see any mark of violence or mark of injury on the body of the victim. Asad Iqbal (P.W.6) elder brother of the victim, has also denied any scratch on the body of the victim or his clothes in a torned condition. Contradictory to this observation, Khurram Shahzad (P.W.4), the victim is deposing:--- "There were some scarchtes/injuries in result of dragging on my body/legs."
It appears that the victim boy had gone himself on the call of the appellant and was never dragged and as shall be shown later that he was a consenting party himself. Only to hoodwink his father and the Court the story of dragging has been introduced specially when the victim himself is admitting during cross: "There were four/five shops near the Music Centre. There is no shop in front of the Lovely Music Centre. It is correct that the place of occurrence is a busy road and people do pass there...The owner Khalid was present at that time" i,e,, at the time of signalling and dragging and the noises and cries made by him for help.
Third discrepancy shown is that the victim boy has replied to certain suggestions that before the occurrence appellant was neither known to him nor to his father nor to his family. He has also denied that the appellant was in the habit of teasing his father while he used to go in the Bazar. In conflict to all this when suggestions concerning compromise on Rs,20,000 through Haji Rasheed, Arbitrator was made to the complainant he avoided further cross while indicating that he had become indisposed and requested for adjournment which was granted. On the subsequent date i,e,, on 21-3-1996 he made a sommarsault and deposed that on the earlier date he did not say that he was not feeling well. All this was done on the earlier date to gain time for tutoring from his counsel as he was going to be confronted with signed stamp papers of compromise. This conduct of the complainant is suggesting the consent by the passive agent and so called victim. (P.W.8)
S.I./I.O. is deposing:--- "It is correct that I have not seen any sign of resistance or using of force against any one in the shop. I had recorded the statement of 4/5 persons at the place of occurrence when I reached there. No one else had made statement before me for seeing the occurrence except the P.W. the brother of Khurram Shahzad."
In contrast to this Asad Iqbal (P.W.6), brother of the victim has deposed that police did not record the statement of any person who had gathered there.
7. Following discrepancies and conflicts in the deposition of the alleged victim as suggested by the defence do make up this case to be a case of sodomy by consent.
"The distance between Khalid Karyana Store and Lovely Music Centre is 20 paces. It is correct that Niaz accused started dragging me towards Lovely Music Centre from my arm. I do not remember how much time lapse while Niaz accused took me to Lovely Music Centre from Khalid Karyana Store. Niaz took me into the shop Lovely Music Centre while he was physically lifting me. I tried my best to free myself from possession of Niaz accused...It is correct that as soon as Niaz opened my Azarband forcibly he started committing sodomy with me. During the occurrence I remained weeping and has been trying to free myself from Niaz accused. It is correct that my hands were not tied during the occurrence. It is correct that I tried to free myself from the accused by using my hands and beating him. I do not remember that how long time had elapsed in committing sodomy with me by Niaz accused....It is correct that whether this sodomy took 2/4 minutes or 4/5 hours........ I showed my Shalwar which was stained with semen to my brother...It is correct that my father took me to Police Station in the same clothes. When reached the Police Station I was not asked by the police to hand over the Shalwar nor I gave them the Shalwar......It is correct that I went to the hospital in the same clothes."
All these pieces of evidence shake the confidence in the deponent on the one hand so far his allegation of the application of force is concerned and non-securing of Shalwar stained with semen is proving a negligent irresponsible conduct of the police and the doctor who examined the victim.
8.Now comes the turn of another conflict which is crumbling the edifice of the story of force applied for sodomy. Asad Iqbal (P.W.6) is deposing: "My father and Khurram entered into the shop alongwith the police. When police arrived there some people gathered there. I do not tell whether they are the owner of the shops around the shop of Music Centre. Police did not record the statement of any person who had gathered there.
However, the police made querry from them.
In clear contradiction, Akber Ali (P.W.8), S.I./I.O. is deposing: "I had recorded the statement of 4/5 persons at the place of occurrence when I reached there. No one else had made statement before me for seeing the occurrence except of the P.W. the brother of Khurram Shahzad. With the perusal of the police file the Investigating Officer gives the answer that the brother of Khurram Shahzad has not stated that he has seen the original occurrence of unnatural offence with his own eyes. It is correct no P.W. appeared before me who has stated about the occurrence that he has seen the unnatural offence committed by the accused with his own eyes. ....It is correct that all the evidence which I have collected is hear-say evidence. I have not seen the body of or any part of the victim when I sent him for medical examination. I have not seen any sign of scratch blood on the body of Khurram when I recorded the statement. I have not collected any piece of clothes or clothes of victim on which semen were found during the investigation."
9. Now comes a stage where the conduct of the so-called victim (P.W.4) needs a correct appraisal.
P.W.6 is deposing: "My father and Khurram entered into the shop alongwith the police. When police arrived there some people gathered there. I do not tell whether they are the owner of the shops around the shop of Music Centre. Police did not record the statement of any person who had gathered there.
However, the police made querry from them.... I am not an eye-witness of the occurrence. It is correct that I have narrated the story today about the occurrence which was being told Khuram Shahzad to me. It is also incorrect that my brother Khurram is a habitual passive agent and it is known to the people of the Mohalla. My father is not a cunning man."
When these pieces of deposition are read with the observations of Dr. Muhammad Ashraf (P.W.1) that the anus of the victim was fully congested, and to a suggestion he has also admitted that anus was semi-dilated from its normal position, the case of so-called victim according to Forensic Science and circumstantial evidence stands proved to be that of a habitual passive. Modi in his classic on Medical Jurisprudence and Toxicology is giving his expert opinion about the examination of the habitual passive Agents in the following words: "1. The shaving of the anal hair but not necessarily the pubic hair.
2. A funnel-shaped depression of the buttocks towards the anus. But this may be absent in strong healthy person who are habituated to the act as passive agents, while it may be natural in thin individuals or old women. But in passive agents there is a complete relaxation of sphincter when lateral traction is applied on both the buttocks.
3. The dilated and patulous condition of the anus with disappearance of its radial folds and the prolapse of the rectal mucosa as the sphincter is relaxed. In a dead body the anal orifice dilates from decomposition."
From the abovementioned discussion, at least it stands proved that for the alleged victim, being a passive agent of sodomy, it was not the first experience because the examining doctor has admitted that there was no mark of violence whereas in such cases such marks must appear, the anus of the alleged victim was semi-dilated from its normal position, he was a young healthy person. Dr. Muhammad Ashraf (P.W.1) has deposed during cross that the cases of habitual passives, the anus must be funnel shaped. This opinion is falsified by Modi at point No,.2 (supra) wherein he has given his expert opinion that funnel-shaped depression may be absent in strong healthy persons who are habituated to the act as passive agents.
10. Now emerges the contention that in the circumstances of the present case, it was essential for Investigation Officer to have sent the samples of the semen of the appellant and the rectal swabs to the serologist for comparison and grouping. This has not been done. In a case reported as 1996 PCr.LJ 1161 at para. No,5, their Lordships have enunciated the following principle: "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 Officer 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 Inspector-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 both 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."
There are scores of other rulings of superior Courts on the same lines. The prosecution seems to be negligent in obeying these rulings and this way is indulging into the offence of the contempt of the Superior Courts.
In the present case, when it stands proved that the alleged victim has not been subjected to this loathsome act by force and the ingredient of consent is present and that it was not the first experience for the victim, comparison and grouping was highly essential to connect the appellant with the offence.
11. Appellant at the time of alleged occurrence was a raw youth of 17 years of age vide deposition of P.W.2. If offender is young in age and is not a previous convict, Courts take a lenient view in awarding sentence. In Islamic jurisprudence, the concept of Adl is blended with Ihsan. In holding this view I am assisted by 1991 PCr.LJ 574 in which the relevant rulings appear at paras. Nos.11 and 12 which read: "We have gone through the case-law cited at the Bar and find that the punishment awarded under section 10(2) of the Ordinance ranges between 5 years and 10 years. We have also noted observations in some of the cases and particularly in Halsbury that maximum punishment prescribed in the statute should be avoided as far as possible. On the scrutiny of the cases we find that the rule of decision adopted for a lesser sentence is age of the offender and his previous life style. If the offender is young in age and is not a previous convict/first offender Courts take a lenient view in awarding sentence. In Islamic jurisprudence the concept of 'Adl' is blended with Ihsan' In the case on hand we find that the appellant is a first offender and he is as young in age as only 18 years. At this age passion of a person sometimes rules stronger than discretion. Beastly instinct overpowers reason and restraint. Looking to all the facts we would reduce the sentence of imprisonment from 10 years to five years R.I. The punishment of whipping membering thirty stripes is mandatory and it is to be left undisturbed. The sentence of fine of Rs,30,000 must also remain.
We would, however, add that the fine, if realised, would be paid to the parents of the deceased. The appellant has been allowed the benefit of section 382-B, Cr.P.C. by the learned Trial Court and it is affirmed Before parting with the case reference may be made to some cases on the reduction of the sentence to an offender under section 10 of the Ordinance. In a case reported in PLD 1985 FSC 1, conviction of the accused was converted from section 10(3) to section 10(2) and the sentence awarded was reduced from 10 years R.I. to 5 years R.I. The following observation made in para. 19 of the judgment may be reproduced;--- The facts on record, however, do suggest that it was not a Zina-bil-Jabr but the act was done with the consent of the prosecutrix. We, therefore, alter the conviction from sections 10(3) to 10(2) and keeping in view section 382-B, Cr.P.C. reduce the sentence to five years R.I. with 15 stripes. The appellant is also fined Rs,2,000, and in default of payment of fine, he shall suffer three months S.I."
In another case reported in PLD 1985 FSC 1, (Muhammad Ashraf etc. v. The State) the conviction was converted from section 10(3) of the Ordinance to section 10(2) and sentence reduced from ten years to five years R.I. and thirty stripes to fifteen stripes....In another case decided by a D.B. of this Court and reported in PLD 1987 FSC 11, (Bahadur Shah v. The State) the conviction was converted from section 10(3) to section 10(2) of the Ordinance and the sentence was reduced from five years R.I. to four years R.I. thirty stripes and fine of Rs,1,000 with the following observations in para. 14 of the judgment:--- The above statement of the lady doctor and the rest of the tacts and circumstances in which the occurrence has taken place lead us to this conclusion that whatever may be the reasons and circumstances Mst. Kalsoom Bibi had put not real resistance and it appears that the act was done with her consent. We are, therefore, of the view that the appellant had committed the offence of Zina with consent which is punishable under section 10(2) of the Ordinance. His conviction under section 10(3) of the Ordinance is altered to one under section 10(2) of the Ordinance and the sentence awarded is reduced to four years R.I. The sentence of whipping awarding is maintained.
However, the appellant is further sentenced to pay a fine of Rs,1,000 or in default of payment of fine to undergo further R.I. for one month. The appellant shall also get benefit of the period of detention suffered by him during the trial as laid down in section 382-B, Cr.P.C."
Keeping in view appellant being a student and a raw youth and all other circumstances of the case, while maintaining the conviction under section 377, P.P.C., the sentence of appellant is reduced to two years and fine of Rs,1,000 in default of payment of which the appellant shall have to undergo a simple imprisonment for one month more. Benefit of section 382-B, Cr.P.C. is also extended to him. Appeal is dismissed in such terms.