Muhammad Habib, Muhammad Riaz and Muhammad Afzal, appellants were tried by a learned Judge, Special Court constituted under Anti-Terrorism Act, 1997 at Lahore for having committed abduction of one Muhammad Imran aged 12 years and having carnal intercourse against the order of nature with him who by virtue of his judgment dated 4-7-2000 found them guilty of the said charge, convicted and sentenced them as under:--
(1) Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979, Muhammad Riaz and Muhammad Afzal were sentenced to 25 years' R.I. each. Both accused were also fined Rs,50,000 each and in default thereof to further undergo S.I. for three months each. Both were also awarded punishment of whipping 15 stripes each which was ordered to be executed outside the main gate of Central Jail, Lahore.
(2) Under sections 377/511/34, P.P.C.
Muhammad Habib, Muhammad Riaz "mid Muhammad Afzal convicts were sentenced to R.I. for 5 years each and fine of Rs,25,000 each. In default of payment of fine they were ordered to further undergo S.I. for two months. each.
All the sentences were ordered to run concurrently and benefit. of section 382-B, Cr.P.C. was also extended to all the accused/convicts.
2. Feeling aggrieved, Muhammad Habib convict by filing Criminal Appeal No,1007 of 7000 while Muhammad Afzal and Muhammad Riaz convicts by filing Criminal Appeal No,1017 of 2000 have approached this Court to call in question above noticed convictions and sentences passed against them by the said learned Judge. I propose to dispose of both these appeals together by this single judgment.
3. Occurrence of the alleged incident took place on 26-11-1999 at night times in the area of Bhatian Sanda, situate at a distance of 1 Kilometre from Police Station Sanda, Lahore and the matter was reported by Muhammad Imtiaz Sohail on 4-12-1999. He presented his application before Ghayyas- udDin, Sub-Inspector, (P.W.4) who despatched the same to the police station for formal registration of case through Muhammad Asim Constable No,521. Consequent upon receipt of application of Muhammad Imtiaz Sohail (P.W.2), Nasir Ahmad, A.S.-I. (P.W.3) drew up formal F.I.R.
Exh.P.A./1 correctly.
4. Muhammad Imtiaz Sohail (P.W.2) puts the matter succinctly by stating that he is putting up with his parents in Zaheer Usman Street No,5. His real brother Imran aged 12/13 years left his house on 26-11-1999 to attend to his duties at Super Sertaj Bus Bodies Workshop Band Road, Lahore. He did not return home till night. He got worried and set out for the said Workshop in search of his brother in the company of one. Shahid Rashid. They came across Imran on their way. He stated before them that Muhammad Afzal, Muhammad Habib, and Muhammad Riaz had taken him to the Baithak of Muhammad Afzal on fire-arm's point and committed sodomy with him. They threatened him not to make a disclosure of the said event to anyone or otherwise he would be done away with.
Muhammad Imtiaz Sohail and Shahid Rashid made inquiries from the accused but they begged pardon for the offence committed by them.
5. P.W.4 Ghayyas-ud-Din took over up hill task of the investigation and after finalising the same submitted challan for trial of the accused in accordance with law.
6. On receipt of challan, the learned Judge framed charge against the accused to which they pleaded not guilty and claimed to be tried. Now the last resort with the trial Court was to invite prosecution to adduce the best possible evidence to prove its case to the hilt against the accused.
The prosecution faithfully complied with the said direction and ventured to produce as many as 4 witnesses to achieve suspended object of theirs. I would like to make a brief reference to their statements.
7. Muhammad Imran, the victim of sexual assault was produced as P.W.1. He alleged in his statement that Habib was his colleague in the Super Sertaj Bus Bodies Workshop. He was on leave on the day of occurrence. Riaz and Afzal took him to the drawing room of Habib. They bolted the door of drawing room from inside and tried to put off his Shalwar. He raised commotion. The accused placed cloth on his face. During this time somebody knocked at the door and accused told him to run away. They extended threats to him not to make a disclosure of the said incident to anyone or in the alternative he would be killed. He then categorically stated that the accused had not subjected him to sodomy but had simply made an attempt. The learned Public Prosecutor requested the said Court that since the P.W. was not willing to tell the truth, so he be declared hostile. This request was acceded to by the learned Judge. When he faced cross-examination, he admitted that Muhammad Imtiaz Sohail is his brother and that he had come across his brother when he was on his way to his house. He adds that he was medically examined and he expressed his ignorance by stating that his brother had compromised with the accused or not. He denied suggestion that he made this statement at the instance of his brother that no unnatural offence had been committed with him by the accused. He denied having made statement before the Police that all the accused committed sodomy with him. He denied having made a false statement because of a compromise.
8. Muhammad Imtiaz Sohail P.W.2, maker of the F.I.R., alleged that he alongwith Shahid was searching Imran who met them at a short distance from his house. He further stated that it was Imran who told him that he had been taken to the Baithak of Habib accused by Riaz Afzal and Habib accused and that they had simply made an attempt to commit unnatural offence with him but, due to interception of someone, they could not achieve their ignoble design. Imran was taken to the house and matter was reported to the police against the accused. He admits of having made statement Exh.P.A. before the Police Official in Ponce Station Sanda. His statement was taken down, read over to him who signed the same in token of its correctness. He further alleges that he stated before the Police that the accused had subjected Imran to their unnatural lust. Volunteered, he stated so because this information was laid before him by Imran.
9. P.W.3 Nasir Ahmad simply stated that he received complaint Exh.P.A., despatched by Ghayyas- ud-Din through Muhammad Asim, Constable No,521 and on the basis of the same drew up formal F.I.R. Exh.P.A./1 duly signed by him. Then Ghayyas-ud-Din P.W.4 stated that he prepared site plan Exh.P.B. of the place of occurrence and also got Imran medically examined from medical authority by moving an application Exh.P.C. He also states that he examined witnesses under section 161, Cr.P.C. concluded the investigation and accused were challaned to tace their trial.
10.The trial Court then examined the accused under section 342, Cr.P.C. to elicit their explanation with regard to the crime imputed to them and further to know their stand point in this matter. All the accused vehemently controverted accusation brought against them and proclaimed their profound innocence in the matter. After fullest evaluation of facts and circumstances of the case, the learned trial Court pronounced its verdict of guilt against the accused as aforementioned.
11.Learned counsel for the appellants submit that the prosecution had miserably failed to establish its case beyond any reasonable doubt against the appellants because medical evidence is, in serious conflict with the accusations brought against the accused in the F.I.R.: that F.I.R. was based on hearsay information and was not being corroborated either by the maker himself or by Muhammad Imran, victim of sexual assault; that statements of the witnesses are at great variance with each other and as such their testimony is rendered incredible.
12.Learned counsel for the State submits that the prosecution version was not being supported by the victim himself and the witnesses and as such evidence on the File is not sufficient to maintain conviction and sentences passed against the appellants.
13. I have courteously heard and soberly considered respective arguments of both the side. The most dauntic task for a Judge is to do weighment of the evidence produced in a case. After carefully examining the evidence, I find that there is excessive and unwarranted delay of about 8 days in lodging of the F.I.R. with the police which casts a reasonable B suspicious upon genuineness and correctness of the prosecution version. The police station is stated to be at a distance of one kilometre from the venue of occurrence. The occurrence had come to the knowledge of the complainant on that very day and it is surprising to note that the accused would have begged pardon from him in such a matter and he would have tolerated all this done by them. He set up an ideally specific claim that he went to the police station, dictated his statement which was jotted down by a police ,official, which was read over to him and he signed the same. in token of its correctness. That statement is not available on the file and this circumstance is by all means enough to show that he is a liar. 'What I find is that he presented an application Exh.P.A. on 4-12- 1999 after 8 days of the occurrence. He clearly alleged in the application Exh.P.A. that his brother Imran told him that all the three had committed sodomy upon him but he gives a complete go bye to this aspect of the matter while appearing as P.W.2. P.W.1 Imran by himself has falsified contents of the F.I.R. by stating that the accused did not commit sodomy upon him and just an attempt was made.by them when there was a knock at the door and he was asked to leave for his house. His medical examination was carried out by Dr. Muhammad Afzal who has not been produced, in the witness-box, medical report is available on the file. He was given up as unnecessary witness by the learned P.P. simply for the reason that contents of the medical report had completely smashed the prosecution version. There were no signs or symptoms of sodomy. There was no injury around the anus. The doctor did not feel the necessity of obtaining anal swabs, even. He was so much sure of non-commission of sodomy upon him. The prosecution story has fallen like the house of cards. It is astonishing to note that Ghayyas-ud-Din, S.I. (P.W.4) stated that during the investigation it was proved that all the accused had subjected Imran to sodomy in the Baithak of Habib accused. In the F.I.R. the sodomy had been committed in the. Baithak of Muhammad Afzal accused. What way the offence was proved, could not be demonstrated by him. The prosecution story is torn into pieces by all the material circumstances available on the file. Had sodomy been committed by three hale and hearty young persons of sound bodies, then horrible would have been the condition of victim of sexual assault but here I find that there is not a single scratch on his body.
14. In these circumstances, I do not want to fail in error by accepting this kind of evidence. This is a case in which real doubts have cropped up and with all humbleness and reverence at my command for the following Whenever possible, save the Muslims from punishment. Do it whenever you find any loophole. because it is better for the Judge to err in acquittal than in conviction (Tirmizi Sharif).
(i) Ward off punishment with, doubts, i,e, if any doubt arises, avoid conviction (Masood. Abu Hanifa).
(ii) If there is any possible way to do it, save God's creatures from conviction and punishment (Ibne-eMaaja)
(iii) act upon the same and order acquittal of the accused by quashing their convictions. They are directed to be released from custody forthwith if not required to be detained in any other case.