1993 P Cr (PLP)

Date of hearing: 15th March, 1993. Nazar Hussain, son of Sher Ali, caste Mirasi aged 30 years, resident of Mohallah Jahangirpura, Pindi Bhattian, Tehsil Hafizabad, District Gujranwala, has through this appeal impugned the validity of the judgment of the learned Additional Sessions Judge, Gujranwala, dated 7-7-1992, convicting the appellant of the commission of offence of sodomy and sentencing him under section 377 of the Pakistan Penal Code to three years' rigorous imprisonment and fine of Rs.5,000, failure to pay which was to entail sufferance of additional imprisonment for a year. He was acquitted of the charge of alleged commission of offence of abducting the victim punishable under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979). The learned trial Court extended him benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment.

2. The appellant was accused of having deceitfully sent Maqsood Hussain, a lad of 12 years of age, P.W.1, to his (appellant's) house, asking him to deliver key of the house to his brother. He was alleged to have gone to his house by another route and to have forcibly taken hold of Maqsood Hussain and committed sodomy with him. The occurrence is stated to have taken place at about 9-30 p.m. on the 22nd August, 1989. The next day Maqsood Hussain's brother, Nisar Abbas, P.W.2, reported the matter to the police through the application, Exh.PA. and on its basis case against the appellant was registered at Police Station Pindi Bhattian.

3. Doctor Shaukat Ali Wahla, Medical Officer, Rural Health Centre, Pindi Bhattian, examined Maqsood Hussain, on the 23rd August, 1989 at 10-45 p.m. and made the following observations:-- "A young boy of normal built was examined by me. He was fully conscious and orientated in time and space. He was complaining of pain in anal area. Margin of anal orifice was tight and admitted one finger with pain. Margin of anal canal was red, a small tear was present on margin and anal orifice. The tear was extending to inside of anal canal. Mucosa was lacerated and red. Specifimens of anal swabs were taken, sealed and handed over to police for chemical analysis. Multiple scratches were found in the area of 5 x 3 c.m. on left buttock." The anal swabs were found by the Chemical Examiner for the Punjab, Lahore, vide his report, Exh.P.D. to be stained with semen. Obviously it was a case of sodomy. Exh.P.C. is the copy of the medico-legal examination report.

4. The appellant denied having had carnal knowledge with Maqsood Hussain. He claimed to belong to Cheema group while the complainant party were party men of Intsar Bhatti group. He said that both groups were inimical towards each other. According to him the complainant, who hailed from Kanjar family, had affiliations with Intsar Bhatti group and had been used by that group to involve him falsely in the case in order to take possession of his house. He did not give evidence on oath or in defence.

5. The prosecution examined Maqsood Hussain P.W.1, and his elder brother, Nisar Abbas, P.W.2, to bring on the record ocular evidence in proof of the charge of sodomy laid against the appellant. Maqsood Hussain testified to the appellant having forcibly committed sodomy with him in his house. Nisar Abbas deposed that he had gone to the house of the appellant and through the peep hole of the door had seen him committing sodomy with Maqsood Hussain. His evidence is considerable improvement over what he stated in his application, Exh.PA. while reporting the matter with the police. He made no such mention of actually witnessing the appellant committing sodomy with Maqsood Hussain in Exh.P.A.

6. From the admissions occurring in the cross-examination of Maqsood Hussain it is clear that his parents belonged to Intsar Bhatti group whereas the appellant belonged to the rival Cheema group and that after detention of the appellant Intsar Bhatti group had forcibly occupied the appellant's house. Nisar Abbas is an employee of Town Committee, Pindi Bhattian, whose Chairman is the uncle of Intsar Bhatti. Maqsood Hussain admitted that he had been tutored by his counsel for making statement in the Court.

7. The learned counsel for the appellant drew attention to other false cases which Intsar Bhatti had manoeuvred to bring against the appellant and which had ended in his acquittal. He submitted that it was Intsar Bhatti who managed to get a serious false case of sodomy set up by applying Maqsood Hussain and his family members, who were his henchmen and pliable to his wishes. In such a situation in the absence of reliable independent evidence a serious doubt has croped up over the authenticity of the case of the appellant. The material brought on the record does not go to the length of establishing the charge against the appellant beyond a reasonable manner of doubt. Consequently giving benefit of doubt to the appellant his appeal is accepted. His conviction recorded and the sentence awarded to him by the learned trial Court are set aside and he is acquitted. He shall be set at liberty forthwith if his detention is not required in connection with any other case. N.H.Q./820/FSC???????????????????????????????????????????????????????????????????????????????? Appeal accepted.