P L D 2006 Supreme Court 524 (PLP)

JAVED 1QBAL, J.

This jail petition for leave to appeal is directed against the judgment dated 12-10-2004 whereby the appeal preferred on behalf of State against acquittal of Muhammad Nadeem (petitioner) has been accepted and the judgment dated 25-9-2001 passed by learned Anti-Terrorism Court-II, Karachi has been reversed and the petitioner has been convicted under section 377, P.P.C. read with section 6(c) and section 7(ii) of Anti-Terrorism Act, 1997 and sentenced to rigorous imprisonment for 10 years and fine of Rs.25,000 and in case of default further to suffer imprisonment for 6 months with further direction to pay compensation of Rs.25,000 to the victim and in case of non-payment to suffer imprisonment for 6 months. 2. "Brief facts giving rise to the present appeal are that on 15-5-2001, victim Walid Ahmed aged about 10 or 11 years had gone to play Video Game at shop situated on Nizami Road. At about 2-30 p.m. the respondent took him to a double storeyed school known as "DOMANZALA SCHOOL" on the pretext of finding a boy. Thereafter the respondent committed sexual intercourse with the victim. The victim Walid Ahmed went to his house but his father was not available, who came in the evening. The victim informed the incident to his father. The complainant noticed that the boy was bleeding from rectum and he was weeping. He started inquiries about the respondent and then went to police station along with his brother and victim boy where he lodged the report." The petitioner was sent up for trial and on conclusion whereof he was convicted and sentenced as per details mentioned hereinabove, hence this petition.

3. Mr. Sadaqat Ali Mirza learned Advocate Supreme Court entered appearance on behalf of petitioner and contended emphatically that the judgment of learned trial Court has been reversed on extraneous consideration and conjectural presumptions having no nexus whatsoever with the evidence which has come on record. It is next contended that the medical evidence does not support the ocular version which aspect of the matter has been ignored by the learned High Court causing serious prejudice against the petitioner. It is also contended that there was delay in lodging F.I.R. which is indicative of the deliberation and concoction which has been ignored by the learned High Court resulting in serious miscarriage of justice as no explanation whatsoever could be furnished by the complainant for such delay.

4. We have scanned the entire evidence with eminent assistance of learned counsel to appreciate the contentions as mentioned hereinabove. The judgment of learned trial Court as well as the judgment impugned have been perused carefully. We are of the considered view that prosecution has proved the accusation by adducing confidence inspiring evidence, which could not be appreciated by the learned trial Court in its true perspective. The statement of Walid Ahmed unfortunate victim of the offence is indicative of the fact that he was taken by the petitioner to school and committed sodomy in a classroom. Walid Ahmed has mentioned in a categoric manner that sodomy was committed by the petitioner. It is to be noted that Walid Ahmed (victim) was subjected to an exhaustive cross-examination but in spite of various searching questions nothing beneficial could be extracted. The statement of Walid Ahmed has been corroborated by Dr. Abdul Razak (P.W.3) who observed the following injuries during the examination of the victim: "(1) Spectrum of buttock was painful. (2) Mucosa was tender to touch. (3) Congestion was noted around the anal region."

5. Dr. Abdul Razak (P.W.3) has opined in a categoric manner that Walid Ahmed was subjected to sodomy. We are not persuaded to agree with the prime contention of learned ASC on behalf of petitioner that medical evidence does not support ocular version in view of the opinion of Dr. Abdul Razak (P.W.3) as well as the factum of congestion, which was noted around anal region which lend full corroboration to ocular version. The petitioner was also got medically examined and in the opinion of Dr. Ghulam Hussain (P.W.2) he was having the capability of performing sexual intercourse. Besides that the victim was referred by Muhammad Soomer (P.W.1) to Radiologist to determine his age and after having received the report of Radiologist, Dr. Muhammad Soomer (P.W.1) opined that Walid Ahmed was about 11 years of age. It may not be out of place to mention here that father of the victim namely Aziz Ahmed (P.W.3) also supported the version of Walid Ahmed and stated that he was informed about incident by Walid Ahmed on 15-5-2001 at sunset time after his arrival to home who also observed blood stained on the legs of his son which came out from rectum. He has furnished a plausible justification qua the minor delay in lodging F.I.R. as some time was consumed to trace out the petitioner and F.I.R. was got lodged on the next day. The factum of delay ipso facto would not cast any doubt on the categoric statement made by Walid Ahmed victim duly supported by the medical evidence. It may not be out of place to mention here that F.I.R. is a simple device to set the law in motion and where plausible explanation has come on record qua delay the same can be ignored. In this regard we are fortified by the dictum laid down in case Sughran Bibi v. Aziz Begum (1996 SCMR 135). Even otherwise such delay would be of no consequence where there is no evidence of enmity between the parties. If any reference is required the case Zar Bahadar v. State (1978 SCMR 136) can be referred.

6. We have also kept the defence version in juxtaposition and perused the statement of petitioner got recorded under section 342, Cr.P.C. which reveals that a false and concocted case was got registered against him due to a dispute between the prosecution witnesses as prior to the incident he met an accident while his motorcycle was hit by the prosecution witnesses who also maltreated him and member of MQM Haqeeqi was also sent to get him apprehended. The petitioner did not opt to get his statement recorded on oath and no evidence whatsoever was led in defence. The plea of innocence and denial simpliciter have rightly been disbelieved by the learned High Court. No specific particulars qua the accident were mentioned and more so the factum of accident could not be substantiated. Even otherwise on such a trivial issue the question of involvement of petitioner in such a heinous case does not arise. A careful perusal of judgment of learned trial court would indicate that it is based on conjectural presumptions and the evidence which has come on record could not be appreciated in its true perspective and petitioner was acquitted on flimsy grounds. The reasoning as given by learned trial court does not appear to be convincing and the well-entrenched principles qua appreciation of evidence have not been kept in view while evaluating the same. Be as it may learned High Court vide judgment impugned has appreciated the entire evidence strictly in accordance with law and settled norms of justice. The conclusion arrived at by the learned High Court is based on sound reasoning as given in the judgment impugned which being well based does not warrant interference. The petition being meritless is dismissed and leave refused. M.B.A./M-81/S Petition dismissed.