' /Appellant has assailed a judgment delivered by Additional Sessions Judge, Gujar Khan on 18-3- 1998 whereby he has been convicted under section 377, P.P.C. And has been sentenced to R.I. For 10 years and fine of Rs,10,000. In default of the payment of fine he has to suffer further S.I. For two months. Benefit of section 382-B, Cr.P.C. Has extended.
2. One Muhammad Yaseen (P.W.3), complainant, came across Iftikhar Ahmed, A.S.-I. (P.W.8) while coming towards Police Station Mandy-,. On 9-4-1994 at 1-25 p.m. And made a complaint which was recorded and is Exh.P.A. Vide this complaint, the complainant has alleged that he is resident of Sardar Dakhily Rajali and is an agriculturist. On the previous day at Degarwela his son haukat (P.W.1), aged about 6/7 years and his cousin Iftikhar Ahmed (P.W.2) aged about 10/11 years were grazing the cattle about 200 to 300 yards from the village. The appellant came there and after having threatened both the boys took them inside a ditch and committed sodomy with both of them turn by turn. On the cries of the boys Mst. Nazia Parveen and Muhammad Arif got attracted and saw the incident with their own eyes. On finding them coming nearby the appellant ran away.
At the evening time the son of the complainant related the occurrence. In the meanwhile father of the appellant as well as many other respectable of the area came as a Jirga to him for compromise. He decided to make a complaint and for that purpose he was going towards the Police station but the Police on the patrol met him near Masjid more and got his complaint recorded as above. This complaint became the base for F.I.R. Which was registered on 9-4-1994 at 1-50 p.m. Which is Exh.P.A./1.
' The appellant was charged twice. First of all he was charged on 13th March, 1995 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and under section 377, P.P.C. To which he did not plead guilty. After this charge the trial commenced and the last of the P.Ws. Namely Dr. Muzafar (P.W.11), Ex-Chemical Examiner, was examined on 12th March, 1997. Then with an amended charge-sheet, dated 21-7-1997 the appellant was confronted and he pleaded not guilty to this amended charge-sheet as well.
3. To prove its case, prosecution examined 11 witnesses. Shaukat (P.W.1), aged 8 years has deposed without oath that at about 4-30 p.m. 10 days back from the date of deposition i,e, 26-8-1995, he was present in the field of Sarwar Khan along with his cousin Iftikhar (P.W.2). Appellant came there and took him in a Khundar (depression). He removed his Shalwar and committed unnatural offence with him. He also committed unnatural offence with Iftikhar as well. In the meanwhile his sister Mst. Shazia arrived there. She raised an alarm and called her relative Arif. On finding them the appellant ran away. He then narrated the whole occurrence to his father and was also got medically examined. During cross he has admitted that on that day he had not gone to the school and appellant had not slapped any one of the two victims. He has admitted further that the sodomy was committed with the victims for about half an hour, whereas Arif was present in the nearby bushes and his sister Mst. Shazia had gone to turn back their cattle. He did not make any noise and he even did not run away from there. He has further deposed that first of all he was victimized. Iftikhar (P.W.2) aged 12 years has deposed that about one year back at Degerwela, he was present along with Shaukat (P.W.1) that the appellant came there and took both of them in the Khundar (depression) and first of all committed sodomy upon him. After that he committed sodomy upon Shaukat as well. In the meanwhile Mst. Shazia came over there who raised alarm which attracted Arif and finding them there the appellant ran away. During cross he has admitted that the place of occurrence Khundar (depression) is about 15 or 16 yards from the village. He has admitted that when appellant came there at the place of occurrence Mst. Shazia was also there.
They had left their house at about 7-00 a.m. And had reached near Khundar at about 2-00 p.m.
While the sodomy was committed with him he had not raised any alarm. Muhammad Yaseen (P.W.3), complainant aged 50 years, has deposed that Shaukat is his son and Iftikhar is his paternal cousin. On the day of occurrence at about 4-30 p.m. Both the victims had gone to the field of Sarwar Khan in order to graze cattle. He was informed by both the victims that appellant came to them and took them to the nearby Khundar and committed sodomy upon them. Such information was also provided by ocular witnesses Mst. Shazia and Arif. He has deposed further that Sultan, father of the appellant, had come to him for compromise but he did not forgive them and lodged the report which is Exh.P.A. During cross he has admitted that he had not seen the occurrence himself but Mst. Shazia had seen the occurrence and that the place of occurrence Khundar is at assistance of two to four yards from the village. He has admitted that the clothes which were worn by the victim at the time of sodomy were produced to the Police. He has also replied to certain suggestion that no one can hear the noise from the Khundar but one can hear noise from the distance of two yards. He has denied that due to enmity he had got registered a false case.
4. Dr. Pardeep Kumar (P.W.4) has deposed that on 9-4-1994 he examined victim Shaukat, aged seven years, and also another victim Iftikhar Ahmad, aged eleven years. Both of them were brought by Police Constable Fateh Muhammad. He found multiple scratches at interior surface of neck of victim Shaukat and also abrasion was present at back side of right elbow joint, but no abrasion or laceration was present at parinial area. He took swabs of perennial, anal and rectal region and sent to the Chemical Examiner in a sealed parcel which were handed over through Constable Fateh Muhammad. According to him, stain was present on the Shalwar which was also sent to the Chemical Examiner through the same Constable. He has proved his M.L.R. Which is Exh.P.C. And he kept his opinion under observation till the receipt of report of the Chemical Examiner. About victim Iftikhar Ahmad he has observed that there was no laceration or abrasion at perinial area, however, laceration was present on the anus at 6 O'clock position. Perinial anal and rectal swabs of this victim was also taken and sealed and sent to the Chemical Examiner through Fateh Muhammad Constable. Faucal stain was present on Shalwar of this victim which Shalwar was also sent to Chemical Examiner for analysis. He kept his opinion reserved till the receipt of final report of Chemical Examiner with regard to this victim as well. He has proved his M.L.R. Regarding this victim which is Exh.P.E. During cross he has admitted that he had not received the Report of Chemical Examiner. Dr. Muhammad Shahzad Mansoor (P.W.5) has proved examination of the appellant on 2- 5-1994 and has given his opinion that he was a young adult person of average built and on his general physical examination he was of 50 Kg. Weight and his all secondary sexual characteristics were well-found. According to this witness, there was nothing to suggest that the appellant was incapable of performing sexual intercourse.. Abdul Hameed (P.W.6) Police Constable has proved that on 11-4-1994 he was handed over two sealed parcels for onward transmission to the office of Chemical Examiner, Rawalpindi. Since the concerned Officer raised objection on the said Parcel so he delivered back the same to the Muharrir/Head Constable. Again on the next day he was handed over the said parcel by the said Muharrir which he delivered in the office of Chemical Examiner, Rawalpindi, on the same day in tact. He has also proved that on 9-4-1994 Mukhtar Ahmad, A.S.-I.
Gave him the complaint Exh.P.A. Which was delivered by him at the concerned police station whereupon the F.I.R. Was recorded. Muhammad Ayub (P.W.7), Head Constable, has proved that Mukhtar Ahmad, A.S.-I. Gave him two sealed parcels for safe custody in the Malkhana on 9-4-1994.
On 11-4-1994 he handed over the same to Abdul Majeed, Constable for onward transmission to the office of Chemical Examiner, Rawalpindi, in-tact. However, due to the objections the parcels were returned and were sent again on the next day through the same Constable Abdul Majeed.
' During cross he has admitted that objections of the concerned office of the Chemical Examiner have not been attached with the file as he handed over the same to the Investigation Officer.
Mukhtar Ahmad (P.W.S) has proved that he was present near Jagged more on 9-4-1994 in connection with his official duties that the complainant met him and made a statement before him which was recorded as Exh.P.A. He sent the complaint to the Police Station Mandra for registration of the case through Abdul Majeed, F.C. Whereupon Muhammad Khan, A.S.-I. Drafted the formal F.I.R. Which is Exh.P.A./2. He sent the victim Shaukat and Iftikhar to the hospital for their medical examination under th escort of Fateh Muhammad, Constable. He inspected the spot, prepared the six plan which is Exh.P.J. He has also proved the recording of the statements of witnesses and arrest of the appellant on 1-5-1994. Being Investigation Office: he completed all the usual investigation and got the appellant challenged I 1 the Court. Muhammad Khan (P.W.9) is a formal witness who recorded, oral F.I.R. Which is Exh.P.A./2. Fateh Muhammad (P.W.10) Constable har proved that on 9-4-1994 he escorted the victim for medical examination and the Medical Officer handed over to him two sealed parcels said to contain swabs which he produced before the-Investigating Officer which were taken by the Investigating Officer into his possession vide recovery memo. Exh.P.H. During cross he has admitted that on the day the complaint was made to the Investigation Officer, he was not on the patrol duty. Syed Muhammad Ayub Shah, D.D.A. For the State has tendered the reports of Chemical Examiner, Rawalpindi, which are Exh.P.K. And Exh.P.L. And then closed the prosecution evidence.
5 . In his statement under section 342, Cr.P.C., appellant has denied all the specific questions and to question No,5 he has replied as under:- "This is a false case registered against me. In fact three days prior to the alleged occurrence, the cattle of the complainant party entered into my fields to which I lodged a complaint with the complainant party which took ill of it. On the third day I came to know about the registration of this false case against me."
' In his defense the appellant has produced Muhammad Arif as D.W.1, who has proved that he did not witness the occurrence and he has also proved that the complainant party is related to him and that he did not make any statement before the Police. During cross he has denied that he has been won-over by the appellant. This D.W. Was examined on 15-7-1996, but later on, on 12-3-1997 another P.W. No,11, namely, Dr. Zafar Hamid Khan, Ex-Chemical Examiner was also examined. He has proved that he saw the original report of Chemical Examiner, dated 16-4-1994 pertaining to Shaukat which is Exh.P.K. Which has already been tendered in evidence and is correct copy of the said report. Similarly, Exh.P.L. Pertaining to Mukhtar Ahmad victim is also correct copy of his report, dated 16-4-1994. He has proved that both Exhs.P.K. And P.L. Are in his handwriting and signed by him. During cross he has admitted that he received the samples/swabs on i2-4-1994 and the report was prepared on 16-4-1994. He has also admitted that the samples of the parcels pertaining to reports Exh.P.K. And P.L. Were not present in the Court on the day of his deposition.
6. After the examination of P.W.11, the appellant was made to state under section 342, Cr.P.C. And replied to certain questions which concerned Exhs.P.K. And P.L., but his answer is that he knows nothing about these reports. Afterwards, on 13-1-1997 Dr. Pardeep Kumar, Medical Officer, appeared as D.W.2 whereas earlier he had also appeared as P.W.4. He has deposed that he had sent the reports Exh.P.L. And Exh.P.K. Which show that anal swabs were found stained with semen whereas the same in respect of perennial and rectal area as well as Stalwart were not found stained with semen.
7. I have heard the learned counsel for appellant and State. The learned counsel for appellant has contended that entire evidence is indicative that the only two ocular witnesses of the occurrence are Mst. Shazia Parveen daughter of Muhammad Maskeen and Muhammad Arif son of Muhammad Husain Chauhan. Both of them have been shown as witness No,4 and witness No,5 in the calendar of the witnesses of challah. Practically, Muhammad Arif did not appear as P.W., but rather he has become a D.W. And has deposed that he had not witnessed the occurrence and that he is related to the complainant party. During cross he has denied that he has been won-over by the appellant. This being the position it became very necessary for the prosecution to have produced Mst. Shazia Parveen daughter of Muhammad Maskeen as a P.W. For being the first ocular witness, on whose alarm, as per the story of the prosecution, Muhammad Arif was attracted. Since she has been given up by the prosecution, therefore, the case will naturally fall within the meaning and scope of illustration (g) of Article 129 of the Qanun-e-Shandat Order, 1984. The presumption of the Court in the circumstances shall be that had Mst. Shazia been produced as a witness for prosecution she would have gone against the prosecution as Muhammad Arif son of Muhammad Hussain Chauhan has already gone against the prosecution and has stated on oath that he had not witnessed the occurrence. Muhammad Arif could not be dislodged during the cross.
Consequently then the deposition of the victim boy and the complainant visa-a-visa the deposition of Muhammad Arif (D.W.1) is word against word on oath. So far as the deposition of P.W.1 Shaukat is concerned it is without oath and has not been believed by the trial Court. The relevant para. Of the impugned judgment in this respect is reproduced as under:- "Learned defense counsel has attacked the prosecution evidence pertaining to the ocular account of case with the bounce that the statement of Shaukat victim P.W.1 was recorded without oath, and it could not be taken into consideration by deciding the instant case. I have given my full thought to the contention of the learned defense counsel and have reached the conclusion that this statement of the witness/victim recorded Without oath has no evidentiary value. The testimony of Shaukat victim P.W.1 is, thus, discarded and held to be of no significance to the prosecution. Thus, to the extent of Shaukat victim the prosecution have failed to bring home the guilt of the accused."
' Now remains in the field only the deposition of victim Iftikhar (P.W.2) who has not been corroborated by any one of the ocular witnesses as Mst. Shazia has been given up and Arif has become a witness of defense. Muhammad Yaseen (P.W.3), the complainant has clearly admitted that he had not seen the occurrence. Therefore, the deposition of P.W.3 is based on the hearsay account of the details as given to him by the victims as well as by the two so-called ocular witnesses who have already been discussed earlier. According to the learned counsel for appellant the deposition of Iftikhar (P.W.2) is in itself in material conflict with the deposition of P.W.1 that is second victim Shaukat. For example, Shaukat is deposing that first of all he was victimized but Iftikhar (P.W.2) has deposed that first of all the appellant removed his Shalwar and committed sodomy upon him and later on, he removed the Shalwar of seGond victim Shaukat and committed sodomy with him. Second material and substantial conflict which arises is that in the complaint Exh.P.A. As well as in F.I.R. (Exh.P.A./1) it has been clearly mentioned that the appellant took both the victims Shaukat and Iftikhar inside the Khundar under the threats. In conflict to this Shaukat (P.W.1) has stated that the appellant had not slapped any of the victims and that none of the victims made any noise nor they ran away from the place of occurrence. The second victim Iftikhar (P. W.2) has also clearly mentioned that at the time the appellant took them into the , Khundar or depression and committed sodomy with both of them, they did not raise any alarm and in fact the alarm was raised by Mst. Shazia which had attracted the second witness Arif and Mst. Shazia raised the alarm when she came at the place of occurrence while grazing the cattle and found the commission of offence going on. Another contradiction to which reference has been made is about the distance of the place of occurrence. Muhammad Yaseen (P.W.3), complainant, had replied to a suggestion that the distance of Khundar from the village is only 2 to 4 yards. Mukhtar Ahmad (P.W.8), A.S.-I. And Investigation Officer has replied to a suggestion that the place of occurrence is at a distance of 200 to 300 yards from the Abadi Deh. In view of these circumstances, the learned counsel for appellant has vehemently argued that this occurrence had not taken place as the story of prosecution appears to be unnatural and is not corroborated by the ocular witnesses.
When confronted with the medical evidence, the counsel for appellant has explained that according to the victims (P.W.1 and P.W.2) as well as according to the complainant (P.W.3) it was Degarwela i,e, 4-30 p.m. On 8-4-1994 that the occurrence had taken place and according to P.W.1 the appellant remained committing sodomy with both of them for about half an hour. According to Dr. Par deep Kumar (P.W.4) who examined both the victims on the second day of occurrence at about 2-00 p.m. He found no abrasion or laceration at the perennial area of Shaukat and he found laceration present on the anus of victim Iftikhar at 6 O'clock position. Swabs of both the victims of the perennial and rectal areas were sent to the Chemical Examiner who has given his report that the anal swa bs were stained with semen in the case of both the victims, but the perinial and rectal swa bs as well as Shalwars of both the witnesses were not stained with semen. The time which had elapsed between the occurrence and the medical examination and procurement of the swabs was almost 24 hours. Consequently then in the course of nature, the anal swabs must not have found stained with semen. In this respect the counsel, has relied on the rulings of the following citations:--
(1) 1995 M LD 950: This is a Division Bench judgment of this Court in which late Justice Nazir Ahmad Bhatti, Chief Justice as he then was, has enunciated the following rulings:-- "The possibility of finding semen inside the anus was also very remote because semen could not remain in the anus after 24 hours as the same would be washed away after the complainant had eased himself. In this connection the learned counsel for the appellant referred to us the opinion of Alfred Swaine Taylor, M.D., F.R.S. At page 96 of his Book Taylor's Principles and Practice of Medical Jurisprudence"; Thirteenth Edition which is reproduced as under:-- ' and it must be remembered that seminal traces within the bowel are difficult to identify if more than 24 hours have passed since the alleged act, and also lost in the majority of cases if there has been a bowel action between the time of the alleged incident and the medical examination.
Wiping or washing of the anal verge will also tend to destroy and anal verge contamination by semen or lubricant'."
(2) 1989 SCM R 418: This is judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan in which Justice Nasim Hasan Shah, has enunciated the following ruling:-- "An infirmity in the statement of victim while naming appellant as accused---Prosecution giving up necessary witnesses---Medical evidence not fully supporting prosecution witnesses---Appellant allowed benefit of doubt and acquitted."
(3) 1997 PCr.LJ 1107. In this judgment I have myself enunciated the following rulings and I find myself bound not to come into conflict with my own ruling. The ruling reads as under:- "(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S. 12---Penal Code (XLV of 1860), S.377---Appreciation of evidence---Medico-legal report of the victim having not been honestly prepared was not reliable---Semen of accused was not sent to Serologist for grouping---Chemical Examiner's Report about the anal swabs of the victim being stained with semen was meaningless and appeared to have been procured as neither any violence on the relevant parts of his body was reported nor he was declared to have not eased himself before his medical examination---Parcels of the anal swabs and Shalwar etc. Had been kept and handled by the prosecution in a dubious manner---Accused were acquitted on benefit of doubt in circumstances.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S. 10---Penal Code (XLV of 1860), S.377---Semen of accused not sent to Serologist for grouping---Evidentiary value of semen stained swabs---Semen found on vaginal or anal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with the semen found on the said swabs by the Serologist."
In the present case, the samples were never referred to the Serologist. On this line following citations have also been quoted which contain the identical type of I A rulings:-- 1996 SCM R 1910, 1993 PCr.LJ 2076, 1989 PCr.LJ 1002, PLD 1983 FSC 204 and 1987 PCr.LJ 431.
' When confronted with the evidence of Dr. Par deep Kumar coming up as D.W. No,2, the learned counsel for the appellant has replied that there appears to be some misunderstanding with Dr. Par deep Kumar who has appeared first of all as a witness of prosecution as P.W. No,4 and has stated on oath that he had kept the opinion under observation till the receipt of the Report of Chemical Examiner. Then on oath he has appeared as a witness of defense and while relying about Exh.P.L.
And Exh.P.K. He is deposing that the sodomy was committed on both the victims, but the position is that Shalwars of both the victims were found by the P.Ws. To be stained with semen and facial material has been declared by the Report of Chemical Examiner not to have been found in that manner. So far as the positive report about the anal swabs of both the victims is concerned. It appears to be that in this respect the Report of Chemical Examiner is procured as it is in conflict with the course of nature and in this respect rulings have' been cited above.
8. Now remains the solitary statement of the victim Iftikhar (P.W.2) which has neither been corroborated by any of the ocular witnesses nor does it appear to be in conformity with the normal course of nature and is also found to be in conflict, substantially, with the deposition of Shaukat (P.W.1), Yaseen (P.W.3), the complainant, and the Investigation Officer, therefore, this solitary statement cannot be believed as it is not inspiring confidence. In this respect reliance has been placed on 1974 PCr.LJ Note 25 at p.16, 1986 SCM R 512, PLD 1951 Bal. 22 and PLD 1994 FSC 21.
9. The learned counsel for State has tried to argue on the lines that the conflicts are not material and that the conduct and deposition of Pardeep Kumar who is both P.W.4 and D.W.2 is not in conflict with the Reports of Chemical Examiner, therefore, the case stands proved beyond any reasonable doubt.
10. I do not agree with this line of argument of the learned counsel for State. Victim Shaukat P.W.1 has not at all been believed by the trial Court and the so-called victim Iftikhar (P.W.2) has not been corroborated by the so-called two ocular witnesses, namely, Shazia and Arif and is also in substantial conflict with the deposition of P.W.1, P.W.3 and also with the Investigation Officer. The Report of Chemical Examiner to the extent of costiveness of the anal swabs appears to be procured one and the other witnesses are only formal. In these circumstances, this case is highly doubtful and the benefit of doubt is extended to the appellant. The appeal is accepted. The impugned judgment is set aside. The appellant is already on bail. His bail bonds are discharged.