' This appeal is directed against the judgment and order dated 20-4-1999 recorded by the Senior Civil Judge/City Magistrate Bannu, whereby the appellant, Samiullah, was convicted under section 377, P.P.C. And sentenced to five years R.I. And a fine of Rs,10,000 payable to the victim as compensation.
2. The background of the instant case is that on 30-9-1997 complainant Muhammad Rafique son of Khangul, resident of Dawar Kakki, aged about 30/32 years, at 1250 hours made a report to Akbar Ali Khan A.S.I. Which was recorded in the form of a murasila and sent to the police station for registration of the case and subsequently on the basis thereof case F.I.R. No,102 at Police Station Kakki was registered. The matter narrated by the complainant in the F.I.R. Is that on the eventful day he was present on the road outside his house when at 1230 hours his minor son named Nasir Gul - aged about 5/6 years came out cryingly from the shop of the appellant. On enquiry, the minor son told him that Samiullah, the appellant, had forcibly committed sodomy on him in his shop. He was taking his son to the police station for lodging the report but in the meanwhile the police officer met him who recorded his report.
3. The Investigating Officer carried out the investigation, the minor was sent to the hospital for medical examination, the site-plan and recovery memos. Were prepared and after completion of investigation, complete challan was put in Court and the appellant was proceeded under section 512, Cr.P.C. On 15-10-1997. He was, however, arrested on 30-12-1997 and supplementary challan under section 377, P.P.C. Against him was submitted in the Court.
4. The prosecution examined eight witnesses including Akbar Ali Khan A.S.-I. As a P.W.1 while Muhammad Rafique complainant and Doctor Riaz Ahmad appeared as P.Ws.7 and 3 respectively.
The former investigated the case, whereas the latter had examined the victim and the complainant had supported his First Information Report. The accused was examined under section 342, Cr.P.C. On 16-2-1999, whose statement was a bare denial and claimed false implication due to the reason that the complainant was indebted to his father for a sum of Rs,10,000 who was, according to the appellant, reluctant to pay the said debt and a false story was manufactured against the appellant. The piece of cloth obtained from the Shalwar of the minor was sent to laboratory for its chemical analysis on which the blood-stains of human origin was detected. After hearing the arguments on both side and concluding the trial, while believing the prosecution evidence, the appellant was convicted and sentenced as stated above.
4-A. Mr. Gohar Zaman Khan Kundi, Advocate appearing for the appellant submitted that the prosecution has failed to establish its case against the appellant and described it as a case of no evidence. He also submitted that there is no eye-witness to the occurrence and the complainant has not seen the crime with his own eyes. His syne submission was that the minor child has not been examined in the Court and, as such, the appellant has been deprived of his valuable right of cross-examining the child. He still further stated that the Court has not recorded the question put to the minor child in order to ascertain his incompetency to be examined as a witness.
5. On the contrary, Malik Hamesh Gul Khan, Advocate appearing on behalf of the State, while defending the impugned judgment stated that the reasons advanced by the learned trial Court are well-founded and there is no misreading or non-reading of the evidence. The prosecution has successfully brought guilt home to the appellant and the judgment of the trial Court is not tainted with any vitiating factor so as to warrant interference by this Court.
6. Have heard the rival arguments of both the adversaries and gone through the record with the assistance of the learned counsel for the parties. So far as the first contention of the learned counsel for the appellant is concerned, that there is no public eye-witness to the occurrence, it is sufficient to say that the offences like the present one are never committed in view of the general public. For the commission of such an immoral offence, the delinquent makes arrangement or chooses a place which is secluded and out of the view of any outsider. In this case, the offence has been committed inside the shop of the appellant and obviously there was no likelihood of being viewed by any outsider. Soon-after commission of the offence at 1230 hours, the minor child aging about 5/6 years came out crying and immediately narrated the unfortunate incidence to his father; who met him on the road outside their house. Keeping in view the extreme tenderage of the victim, it can very safely be observed that the child narrated the incident so abruptly and spontaneously that there is no occasion to think that the story was fabricated and the implication of the appellant was the result of an after-thought. The occurrence has taken place at 1230 hours and the report was made at 1250 hours, i.e. Within twenty minutes of the occurrence.
7. This is a case which fully attracts the rule of 'Res gestae. The Res gestae rule is that where a remark is made spontaneously and concurrently. It is defined as a matter incidental to main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. They are events themselves speaking through instinctive words and acts of participants; circumstances, facts and declarations which grow out of main fact are contemporaneous with it and serve to illustrate its character. Res gestae includes everything that may be fairly considered as an incident of even under consideration. It carries with it hinerently a degree of credibility and will be admissible because of its spontaneous nature. 'Res gestae' means literally thing or things happened and, therefore, to be admissible as exception to hearsay rule, words spoken, thought expressed and gestures made must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. It represents an exception to the hearsay rule.
8. Res gestae is a concept which as a matter of principle is employed in the English system of administration of criminal justice under the name of 'res gestae'. In our system of administration of justice, Article 19 of Qanoon-e-Shahadat (P.O. No X of 1984) corresponding to section 6", of the Evidence Act of 1872, is an enacted provision of law under which statement made immediately after the occurrence under the influence of occurrence in order to characterize it and connecting therewith would be admissible under this article as ' res gestae' evidence.
9. In the case before me, a child in the learning of alphabet being relieved of houndish instinct of a person animated by lust has so immediately reported the incident to his father that in such promptitude even a grown-up man would not have a sufficient time to conjure the facts motivated by any kind of malice. This child of 5/6 years age, in my opinion, has not at all developed any faculty of mind, which should have a quality of concocting the events. Therefore, I am clear in my mind that the evidence of the father of the child is fully protected by section 19 of Qanoon-e- Shahadat and the principle of 'res gestae', which can very safely be taken into consideration as an admissible evidence against the appellant.
10. So far as the non-recording of statement of the minor is concerned, it is observed that the minor Nasir Gul was produced before the Court by the prosecution and was to be examined as P.W.8, but the learned trial Court keeping in view his minority put certain question to him to which he could not reply rationally and the learned trial Judge who had the privilege of observing the child with his own eyes was satisfied that the child could not understand the proceeding, as he had not developed the mental maturity for the purpose. The learned trial Judge has, therefore, observed in his judgment that the minor had recognized and identified the appellant who was present in Court in custody and described him the real culprit who had committed sodomy on him. I feel that due to the non-examination of the child, the appellant has not been prejudiced and if the prosecution wanted to manufacture artificial evidence against the appellant, then it would have been more conductive to the purpose of prosecution to have produced the minor as a witness. It is are undeniable fact that children of such ages are succeptiable to influence, suggestions, promises, inducements or even threats and such elements can very easily work as external influence on children. It must not be forgotten that a child is peculiarly exposed to the external influence, whether designed or accidental. Anyone knowing that a child is to appear as a witness in the Court of justice, if he is interested in him statement and has a chance of influencing it himself will almost certainly exert that influence. The child, as yet devoid of principles places great faith in the words of grown-up people. So, if a grown person brings influence to bear on it, especially sometime after the occurrence, the child will imagine that he has really seen that he has been led to believe. Its brain is so soft that it receives immediately all impressions, it perceives and forgets a hundred things in an hour. Thus, the prosecution could certainly achieve the desired object from the mouth of the child by tutoring him against the appellant.
11. The other contention with regard to omission by the trial Court of recording the question to be put to the minor, I understand that it has no turning effect upon the evidence of prosecution in the circumstances of the instant case.
12. The further contention of the appellant's counsel is that the report of the Chemical Examiner shows that no semen was detected on the swabs sent to the chemical analysis. This objection finds a very easy answer that this is not the case of the prosecution that the appellant had ejaculated on the victim. In this respect, learned counsel for the appellant was asked whether ejaculation is a necessary ingredient for the accomplishment of the offence under section 377, P.P.C. The learned counsel fairly stated "no"---but the simple penetration is sufficient. The factum of penetration is well-established by the bleeding annus and the positive report of the Chemical Examiner. Thus, in the circumstances, the absence of semen on the swabs would in no way destroy the case of the prosecution.
13. It was also as a last resort argued by the learned counsel for the appellant that the appellant was involved in the instant case out of malice in order to digest Rs,10,000 which was outstanding against the appellant as a debt to his father. However, I have no inclination to accept this contention, because the area where the offence in hand has been committed is inhabited by such people who enter into series of murders on a very slight contemptuous remark. This obviously involve the honour of the family and no person would barter his honour for a sum of Rs,10,000 (it is also an unproved allegation). No father would stigmatize his child with such a decision and would reduce his child to an object of ridicule and contempt and would destroy his entire future.
14. In applying the principle of res gestae, I have the privilege to draw wisdom from the case of Muhammad Aslam Shah v. The State, reported in 1983 PCr.LJ 704.
15. In view of the above discussion, I hold that the judgment of the trial Court is well-founded and no disregard of any principle of appreciation of evidence has been found therein.
16. Resultantly, I find no substance in this appeal, which is hereby dismissed. However, the benefit under section 282-B, Cr.P.C., which is omitted by the trial Court while passing the impugned conviction, is extended to the appellant.