' Habibullah, appellant (25/26) has preferred instant appeal against judgment, dated 19-11-2003 passed by learned Senior Civil Judge/Judicial Magistrate Section 30, Cr.P.C. Lakki Marwat, whereby the appellant was convicted under section 377, P.P.C. And sentenced to suffer five years' R.I. With fine of Rs,10,000 or in default of payment of fine, to undergo further one year R.I. .
2. To state briefly, the prosecution case against the appellant is that on the day of occurrence i,e, 21-7-1999 at morning Rotivela', complainant Rabnawaz (10/11) was on his way to the house after attending Maddrassa Taleem-ul-Qur'an and when he reached near the house of Shamal Khan, Habibullah appellant took him to his Baithak on the pretext of giving him photographs and wrist watch. Thereafter, the appellant removed his Shalwar and that of the complainant, made him sit in a chair, erected his penis and rubbed the same in the thighs and buttocks of the complainant forcibly. The complainant raised hue and cry. The appellant left him after quenching his thirst. On return to the house, complainant narrated the woeful tale to his mother and grandmother.
3. The complainant accompanied by is grandmother went to police station the same day and made report at 9-00 hours implicating the appellant for the commission of offence. The report was recorded by A.S.-I. Miranshah Khan (P.W.7). After recording the report, he referred the complainant to the hospital where he was examined by Dr. Abdur Razaq (P. W.5). After examination, the Medical Officer took two swa bs from the rectal area and from inside the anus and handed over the same to police for analysis of semen. Thereafter, the A.S.-I. Proceeded to the spot, prepared site plan (Exh.P.B.) at the instance of complainant, recorded statements of the prosecution witnesses, took into possession one chair (Exh.P.W.2/1), placed on record report of Chemical Examiner and Serologist, F.S.L. N.-W.F.P. Peshawar and handed over the case file to S.-I. Amanullah (P.W.6) for further investigation, who arrested the appellant on 2-8-1999 and produced him before Dr. Abdur Rehman, M.O. Rural Health Centre, Tajori who examined him on 2-8-1999 and found him capable of performing act of sexual intercourse. After completion of investigation in the manner described above, complete challan was submitted on 4-8-1999.
4. Dr. Abdur Razaq Khan, Medical Officer, D.H.Q. Hospital, Lakki Marwat on 21-7-1999 at 1-15 p.m.
Examined Rabnawaz, victim and found the following:--
(1) There are no scratch mark or laceration in or around anus.
(2) There are no staining of blood or seminal fluid on the part of the body or on the clothes.
5. The prosecution in order to prove its case produced seven witnesses in all. Statement of appellant was recorded under section 342, Cr.P.C. In which he denied the prosecution allegations and claimed to have been charged falsely. He did not wish to examine himself on oath as required under section 340(2), Cr.P.C. However, he produced Mir Nawaz Khan (D.W.1), father of the victim Rabnawaz in his defence.
6. On conclusion of the trial, the learned trial Court convicted and sentenced the appellant as stated above holding that "prosecution has fairly and substantially proved its case".
7. Mr. Sultan Shehryar Khan Marwat, Advocate, mainly contended that conclusion arrived at by the learned trial Court is against facts, law and judicial principles and also suffers from the defect of misreading and non-reading of evidence and that bald statement of the victim, in the absence of strong corroborative evidence, should not have been given preference and made a basis of conviction of the appellant. He added that in order to make the sole testimony of a witness the foundation and basis for finding a person guilty of the charge, the evidence must be clear, cogent, consistent and should be of an unimpeachable character which is missing in the instant case.
Additionally he urged with reference to Taylor's Principles and Practice of Medical Jurisprudence that the medical evidence does not support the prosecution case and report of the Chemical Examiner, F.S.L. Peshawar indicating detection of semen of human origin on the swabs in question, is of no consequence and does not promote the prosecution case in any manner. To substantiate the pleas, he placed reliance on Muhammad Luqman v. The State PLD 1970 SC 10, Aftab Anwar Jaleel v. 'The State PLD 1971 Kar. 156 and Muhammad Mansha v. The State 2001 SCMR 1999.
8. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General supported the impugned judgment and maintained that prosecution has produced sufficient evidence connecting the appellant with the commission of offence and in the absence of any infirmity in the impugned finding, it merits no interference.
9. Arguments of both sides heard. Record perused.
10. In a case of this kind, it is very necessary that befoie finding the accused person guilty of the charge, the Court should be satisfied that the victim's story is supported either by circumstantial evidence or at least by some circumstances implicating the accused with the guilt. The necessity of corroboration, as a matter of prudence, except where the circumstance make it safe, to dispense with, it must be present in the mind of the Judge. It is not denied that a charge of this kind is very easy charge to make and very difficult one to refute. Needless to say that even a single doubt, if found reasonable, is sufficient to warrant acquittal of the accused.
11. The fate of the prosecution case mainly hinges on the bald assertion of the complainant which, itself, is insufficient to make out a case under section 377, P.P.C. Against the appellant. This appears to be the reason because of which the prosecution applied sections 377/511, P.P.C. In the case and avoided to apply section 377, P.P.C. Only as the complainant in the F.I.R. Had very clearly stated that the appellant had rubbed his male organ into the thighs and his buttocks whereafter he found some hot liquid at his thighs and buttocks and has not stated that the appellant had penetrated his penis into his anus. Similarly, in his statement recorded at the trial, the complainant has simply stated that appellant tried to penetrate his penis into his orifice. Thus, the charge under section 377, P.P.C. As rightly contended, was not proved against the appellant in the attending circumstances of the case. I also find myself in agreement with learned counsel for the appellant that trial Court has failed to take notice of the statement of Mirnawaz, father of the complainant who appeared as defence witness and had categorically stated that the instant case was falsely brought by his son due to personal grudge. So far as the medical evidence is concerned, it does not fully support the prosecution case and conclusively prove the complicity of the appellant in the crime. It appears that the complainant has not told the whole truth and has tried to improve his version in order to bring it in conformity with the prosecution case. It needs no reiteration that in a case of this kind where the evidence and condition of the victim form the only evidence which the Court has to go upon it is necessary in order to sustain a conviction, that it would at least be found that the victim's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. In the instant case, the evidence produced by the prosecution falls short of the required standard and cannot be considered sufficient to sustain conviction. Resultantly, I. Accept this appeal, set aside the impugned judgment of conviction and sentence dated 19-11-2003 and acquit the appellant of the charge levelled against him. The appellant shall he released forthwith from the jail if not required in any other case.
12. Above are the detailed reasons of my short order dated 28-6-2004.