' Through judgment dated 19-2-2003 passed by Judicial Magistrate, D.I. Khan, Habib, respondent (21/22) was convicted under sections 377/511, P.P.C. And sentenced to three years' R.I. With fine of Rs.5000 or in default, to undergo two months further S.-I. The fine, on realization, was order to be paid to the complainant as compensation under section 544-A, Cr.P.C. The respondent challenged his conviction and sentence by filing appeal which was accepted by learned Additional Sessions Judge-I, D.I. Khan by means of her judgment dated 8-4-2003 and respondent was acquitted of the charges. Feeling aggrieved, Haji, appellant has filed instant appeal which is before me for consideration.
2. The allegation against the accused-respondent is that he on 9-7-1998 at 'Peshinvela' in fields known as 'Oraywala' within the jurisdiction of Police Station Chaudhwan, District D.I. Khan committed sodomy upon his co-villager, Haji complainant (13/14). Report of the occurrence was lodged by complainant himself the same day at 2130 hours in Police Station Chaudhwan which was recorded by MHC Mazamir Khan (P.W.1). He prepared injury sheet of the complainant (Exh.P.W.1/2) and sent him to Civil Hospital, Chaudhwan under the escort of Muhammad Mushtaq, Constable. The complainant was examined by Dr. Abdur Rauf (P.W.9). The remaining investigation of the case was conducted by A.S.-I. Sanaullah Khan (P.W.8) who proceeded to the spot and prepared site-plan (Exh. P .W . 8/1). He also took into possession Shalwar of, the complainant vide memo. (Exh.P.W.2/1) and sent the same to F.S.L., Peshawar for report and received result of chemical examiner (Exh.P.W.8/2). After completion of investigation, Atta Muhammad (P.W.10) submitted complete challan against the accused.
3. The prosecution in order to prove its case against the accused, produced eleven witnesses in all including complainant, Investigating Officer and Medical Officers. The accused was examined under section 342, Cr.P.C. He denied the prosecution allegations against him and stated to have falsely been implicated in the case. He neither appeared as his own witness on Oath as required under section 340(2), Cr.P.C., nor produced defence evidence.
4. On consideration of the evidence brought on record, learned trial Court (Judicial Magistrate), .D.I.
Khan convicted and sentenced the respondent as mentioned above whereas learned Additional Sessions Judge on acceptance of the appeal filed by the respondent, set aside the conviction and sentence and acquitted the respondent of the charge. Hence, this appeal.
5. Mr. Abdul Latif Khan Baloch, Advocate for the appellant contended that the judgment passed by the learned lower Appellate Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which Appellate Court proceeded to acquit the respondent are not supportable from evidence on record; that it is a daylight occurrence wherein respondent has been directly charged and that discrepancies in the statements of witnesses are not so material on the basis of which respondent could be acquitted.
6. Malik Hamesh Gul Khan, Advocate appearing for the State adopted the arguments advanced by learned counsel for the appellant and opposed the order of acquittal.
7. Contrarily, Mr. Salimullah Khan Ranazai, Advocate for the respondent submitted that the evidence available on record is in no way sufficient to lead to a conclusion of guilt. The Appellate Court below has extended the benefit of doubt to the respondent in a lawful manner and no glaring defect, material irregularity or legal infirmity could be pointed out in the finding of the Appellate Court, warranting interference of this Court.
8. Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked different between appraisement of evidence in appeal against conviction and in appeal against acquittal. In appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by Court after proper analysis of evidence on record. In appeal against acquittal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of respondent is considerably narrow and limited.
9. No doubt it is true that in such-like cases, testimony of victim coupled with report of the medical officer is the most important piece of evidence and the same is considered sufficient to form basis for conviction of an accused person, but in the instant case, the medical evidence does not support the version of the complainant having been subjected to the act of sodomy. Dr. Abdul Rauf (P.W.9) in his cross-examination has categorically stated that no penetration could be proved. The mere fact that two anal swa bs and piece of Shalwar of the victim were found stained with semen, by chemical examiner, by itself, is not sufficient to connect the accused-respondent with commission of crime and conclusively prove that he is guilty of having subjected the complainant to his unnatural lust. It may be noted here that Muhammad Ashraf P.W. Is stated to have accompanied the complainant to the Police Station for report. This witness is not on good terms with the respondent. Furthermore, the two families' i.e. Complainant and respondent are also hostile to each other. In the circumstances; the possibility of false implication cannot be, ruled out.
The prosecution witnesses produced in Court to substantiate the version of the complainant are his close relatives and are stated to be present nearby. Had they been present near the spot of occurrence at the relevant time, there was no occasion for the accused-respondent to have dared to commit unnatural lust with the victim. In such a situation, in the absence of reliable evidence, serious doubt has cropped up over the authenticity of the case. The material brought on record does not go to the length of establishing the charge against the accused-respondent beyond a reasonable manner of doubt. Having regard to the facts and circumstances of the .Case, I am satisfied that prosecution story is unnatural. Improbable and unreliable one and the prosecution has miserably failed to implicate the accused-respondent with the crime in question. The impugned judgment is neither perverse, illegal, ridiculous or the result of misreading of evidence leading to miscarriage of justice. The reasons advanced for acquittal of the accused-respondent are convincing and cogent and hardly warrant interference of this Court in its appellate jurisdiction. Razzaq v. The State 1991 PCr.LJ 942 Lahore, Nazar Hussain v. The State 1993 PCr.LJ FSC 2076 and Waqarul Islam and another v. The State 1997 PCr.LJ FSC 1107.
10. For the above reasons, the appeal fails which is hereby dismissed. The impugned judgment is maintained.