1. ' Appellant has assailed a judgment, dated 14-4-1998 delivered by the Court of 1st Additional Sessions Judge, Khairpur whereby he has been convicted under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereafter to be referred to as the said Ordinance, read with section 377, P.P.C. And has been sentenced to R.I. For 7 years and fine of Rs,20,000 in default to R.I. For one year. Benefit of section 382-B, Cr.P.C. Has been extended.
2. One Sardar Ali (P.W.2) appeared at Police Post Luqman District Khairpur on 6-4-1987 at 8 p.m.
2. And made a report which became a basis of F.I.R. Lodged at Police Station Town, Khairpur on the same date at 9-15 p.m. The allegation made by the complainant is that his son Akber Ali went alongwith Noor Muhammad and Amirullah for collection of fire-wood from jungle on 2-4-1987 and all were in the age group of 7 to 11 years. Akber Ali returned at about 3 p.m. Accompanied by the two named above and narrated the story that they reached at the spot where there is seepage drainage at about 12-00 hours and found the appellant and another Muslim alias Chand by name who were making the game of fishing there. Then the appellant called Akber Ali and caught hold of him and then the appellant and his accomplice Muslim alias Chand forcibly took him inside the wheat cultivation. He remained crying, but his other companions ran away. Inside the wheat cultivation, Akber Ali was thrown on the ground, Muslim alias Chand removed his Shalwar and the appellant committed carnal intercourse with him and Muslim remained catching hold of him.
3. Afterwards, Muslim committed sodomy upon him while appellant remained gagging his mouth with his hand. Then he was released and he narrated the story to his companions. Since he was feeling difficulty in walking, so it took him some time to reach the home. On hearing this, the complainant went to Kadir Khan (P.W.3) and then they contacted relatives of the accused who promised for Faisla, and this way four days passed. No compromise could be effected. Hence the complaint.
4. ' Appellant was arrested, but his co-accused Muslim alias Chand absconded. The charge framed against the appellant was only under Article 12 of the said Ordinance and no charge under section 377, P.P.C. Was framed. Appellant was' tried and acquitted under section 265-H(1), Cr.P.C. Vide judgment, dated 18-6-1992 delivered by the Court of 1st Additional Sessions Judge, Khairpur. The said judgment was impugned in this Court by State in Criminal Appeal No,3/K of 1994. Vide its order, dated 20-11-1995 this Court set aside the said judgment an remanded the case back to the trial Court with a direction that it shall proceed ab initio in the matter after framing an appropriate charge against the appellant and shall record fresh evidence and shall give an opportunity to the appellant to produce defence, if he so wished.
5. ' Formal and fresh charge was framed against appellant under Article 12 of the said Ordinance and section 377, P.P.C. On 23-9-1996 to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined 7 witnesses. Muhammad Ibrahim (P.W.1), S.I.P. "A" Section Khairpur has proved that on 6-4-1987 he was posted as W.H.C. At Police Station Khairpur Town and knew retired A.S.-I.P. Dil Mir Khan who was in charge of Police Post Lukman at that time.
6. ' He was well-conversant with the signature of the said retired A.S.-I.P. And produced a copy of the station diary Exh.4., Mashirnama of Vardat Exh.5, and Mashirnama of the recovery of Shalwar Exh.6.
7. He has proved the signature of the said Retired A.S.-I.P. On these documents. He has also proved signature of the said A.S.-I.P. On the Mashirnama of arrest Exh.7. He has also deposed that the whereabouts of the said A.S.-I.P. Are not known after his retirement. He has also produced the chemical report Exh.8 and proved that it was bearing the signature of Chemical Examiner, Rohri.
8. Sardar Ali (P.W.2), the complainant and father of the victim boy has proved copy of station diary (Exh.4) of Police Post Lukman and has proved his signature on it. He has also proved F.I.R. Exh.9 and has endorsed its contents. He has further deposed that police had visited the Vardat and had produced the Shalwar of his victimized son to the police. Kadir Khan (P.W.3) has deposed that complainant is his cousin (Masat) and P.W. Noor Muhammad is his son. The substantial part of his examination in -chief is reproduced as below:-- "About 10 years back my son Noor Muhammad and P.W. Akbar Ali had taken my Rehri for collecting fire-wood from jungle towards Sim Nali. I also followed them at about 9-00 a.m. When I reached there my son Noor Muhammad was sitting on the back of Sim Nali and he was weeping. I enquired from him as to why he brought Rehri there, on which he replied that he and Akbar Ali had come there for collection of fire-wood. I enquired from him about Akbar Ali on which he replied that Akbar Ali was caught by Amir Sultan and he' was taken towards wheat crop. I also went towards the directions, pointed by my son. When I reached there, it was about 11-00 a.m. Accused Amir Sultan ran away seeing me leaving Akbar Ali. The Shalwar of Akbar Ali was put off and his condition was miserable. On my enquiry Akbar Ali informed me that he was caught by force by Amir Sultan and he was also maltreated and sodomy was committed upon him. I took Akbar Ali on my Rehri to his house. I informed Sardar Ali, who took his son Akbar *Ali to police station I was examined by the police. Accused present in Court is same."
9. ' Akbar Ali (P.W.4), the victim, has deposed as under:-- "Complainant Sardar Ali is my father. P.Ws. Kadir Khan, Noor Muhammad, Usman Ghani are my relatives. About ten years back towards Sim Nali for collecting fire-wood. We had also taken Rehri of Noor Muhammad with us. Accused Amir Sultan and one Chand were catching fish fom Sim Nali.
10. They both called us and went near, they both caught m and showed me knife. My both the companions ran away seeing the knife. I was taken by force in wheat crop by both the culprits.
11. Accused Chand refined my Shalwar and accused Amir Sultan committed sodomy with me by force. Thereafter, I was left by both the culprits. P.W. Kadir Khan came there, whom I informed about the incident. I was taken to my house by Kadir Khan. We informed my father about the incident. I was taken to police station by my father and lodged the F.I.R. I was examined by police and referred to M.O. I was referred to the hospital by the police. I produced my Shalwar before police.
12. Accused Amir Sultan present in Court is same."
13. ' Usman Ghani (P.W.5) is a Mashir of the place of occurrence. He has proved Mashirnama of Vardat Exh.5. He is also a Mashir of the production of the clothes of victim and has proved such Mashirnama Exh.6. Dr. Abdul Razzak Shaikh (P.W.6) has proved medical examination of the victim on 6-4-1987. His findings and opinion are as under:-- External examination
(1) Few abrasion about 3 in number each one 3 c.m. x (sic) c.m. On the outer surface of left gental region.
14. ' On examination of anal I found following injuries--
(1) Two small abrasions 1/4 c.m. x 1/2 c.m. Each one seen at the 6 O'clock position of anal region.
(2) One small abrasion measuring 1/2 c.m. x 1/8 c.m. Seen at 12 O'clock position of anal region.
15. ' On internal examination of anal canal I found following injuries--
(1) I.R. Was tender.
(2) Macose of anal canal was red and congested.
(3) Sphincters of anus were red and congested. Clothes of the victim/boy were found changed.
16. Opinion ' From external and internal examination of the victim boy I am of the opinion that sodomy were performed with victim/boy who was examined by me. I issued such certificate which I produce as Exh.14 it is same, correct and bears my signature."
17. ' Dr. Ghulam Jafar (P.W.7) has proved medical examination of the appellant on 7-4-1987. His findings are that the appellant was adult young boy of 20 years and that he was potent.
4. During his statement under section 342, Cr.P,C. Appellant has replied to a question, as to why P.Ws. Have deposed against him, as under:-- "They interested, related to each other and on inimical terms with me."
18. ' To a question have you anything else to say?
19. "Co-accused Chand, who is shown in F.I.R. Had, abducted the daughter of P.W. Kadir. After this incident they took compensation of rupees one lac from Chand and patched up. Due to their enmity I have been falsely implicated in this case."
20. ' He declined to be examined on oath under section 340(2), Cr.P.C., but has examined two witnesses in his defense. Abdul Hafeez (D.W.1) deposed as under:-- "The accused and complainant party belongs to same community. Rabeel maternal-uncle of accused Sultan had abducted wife of complainant, hence there was enmity between complainant party. Complainant received compensation of Rs,1,50,000 from Rabeel. One Chand was also suspect in abduction, of wife of Sardar Ali besides Rabeel. Such F.I.R. Was also lodged. Accused did not commit sodomy with Akbar Ali. This has been concocted due to the abduction of wife of Sardar Ali by Rabeel and Chand. Accused is man of good character."
21. ' Gull Hasan (D.W.2) has also deposed on the lines of D.W.1 with an addition that the offence of abduction of the wife of the complainant was a matter of 15/16 years back. To a question by the Court, this witness has replied as under:-- "Sardar Ali lodged report regarding abduction of his wife. Sardar Ali received compensation of Rs,1,50,000 from Rabeel after about 1-1/2 years of the abduction of his wife. After the payment of compensation there was no enmity between Rabeel and Sardar."
5. I have heard the counsel for appellant and State. The learned counsel for the appellant has contended that there is an inordinate unexplained delay of 4 days in lodging the complaint and this is fatal to' the prosecution; that statement of victim is not corroborated by any ocular witnesses; that evidence of Kadir Khan (P.W.3) and Sardar Ali (P.W.2) is a hearsay as they have not seen the commission of the offence; that the victim was examined 4 days after the occurrence and this delay in itself is fatal to the prosecution; that the Investigating Officer was not examined which has prejudiced the case of the appellant seriously and that the appellant has undergone an agony of trial for about 11 years and that is in fact mitigating circumstance for the reduction in the sentence. The learned counsel for the State, on the other hand, has contended that the case against the appellant has been proved beyond reasonable doubt as there is no direct enmity between the parties and that the delay of 4 days is not fatal as it is explained in the complainant itself; that although the Investigating Officer has not been examined yet his handwriting and signatures have been proved by Muhammad Ibrahim (P.W.1) and, therefore, it is relevant and falls within the meaning and scope of Article 61 of the Qanoon-e-Shahadat Order of 1984; that Article 153 of the Qanoon-e-Shahadat Order, 1984 also comes into the Picture and in this respect reliance has been placed on 1985 PCr.LJ 683; that victoria's deposition has been corroborated by medical report and in this respect radiance has been placed on PLD 1982 FCS 252. Finally the counsel for State has also vehemently argued that a lenient view has already been taken due to the lengthy trial in terms of time and these mitigating circumstances have already been kept in view by the trial Court while awarding a lesser sentence.
6. As to the contention of an inordinate delay of 4 days in lodging the complaint is concerned, there is an explanation about the same in the very F.I.R. 'n which complainant has stated that on coming to know about the incident, they went to the relatives of the appellants/accused for decision in a brotherly manner. For 4 days the complainant party was kept on false promises and finally one Saeed-ur-Rahman an uncle of appellant Amir Sultan refused to come to some decision and therefore, the complaint was lodged 4 days after the incident. I am satisfied with this explanation in view of the fact that in such case family honor is involved and the affected tries to get the matter compromised on certain amicable terms through their elders. Consequently, I do not find any worth in this contention.
22. ' Another contention for the appellant is that the victim is not corroborated by any ocular witness. I do not find any worth in this contention because of the deposition of Kadir Khan (P.W.3) who had deposed that he reached the spot of occurrence at about 11 a.m. And on finding him, the appellant ran away leaving Akbar Ali. On this point this witness has not been dislodged during the cross.
23. ' Now emerges the contention that the victim was examined medically 4 days after the occurrence and, therefore, the evidence of Dr. Abdul Razak Shaikh (P.W.6) is not worth consideration. In this context a positive opinion of this witness has not been dislodged during cross. To a suggestion, this witness has replied:-- "The sodomy was committed with Akbar Ali about 3/4 days prior to his examination by me."
24. ' Consequently, this contention fails.
25. ' The contention that the Investigation Officer has not been examined, has been adequately replied by the learned counsel for State in terms of the application of Articles 161 and 153 of the Qanoon-e- Shahadat Order, 1984 as interpreted by 1985 PCr.LJ 683.
26. As to the alternate prayer of the counsel for the appellant regarding reduction in sentence is concerned, I find that already a lenient view has been taken by the trial Court in awarding the sentence.
7. In view of the abovementioned discussion,. I have come to the r. Conclusion that the prosecution has been able to prove its case beyond reasonable doubt. Consequently, the impugned judgment is upheld and the appeal is dismissed. Benefit of section 382-B, Cr.P.C. Shall remain intact.