2019 PLP 1470 (YLR)

RAJA SAEED AKRAM KHAN, J.

The titled appeal has been filed against the judgment of the Shariat Appellate Bench of the High Court (hereinafter to be referred as High Court) dated 11.06.2018, whereby, the appeal filed by the convict-appellant, herein, has been dismissed.

2. The facts necessary for disposal of this appeal are that on the written report of the complainant, Nadeem Tahir, a case in the offence under section 337(A), A.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered at Police Station Baloch on 15.05.2013. In the FIR, the allegation levelled against the convict-appellant, herein and another, namely, Nisar Ahmed, was that; on 15.05.2013, the complainant along with the accused persons was in the way back to home after attending the annual anniversary ( ), of the saint of Dowan Sharif and when they reached Panakh Panyali at about 4:45 am, the accused persons beat him. The accused, Nisar Ahmed, inflicted a blow with the butt of pistol at his temple and also pointed pistol and extended threats to do away with his life. The accused persons forcibly committed sodomy with him. On the completion of the investigation, the challan in the offences under sections 377, 506(2), A.P.C. and 12 Offence of Zina (Enforcement of Hudood) Act, 1985, was presented in the District Court of Criminal Jurisdiction, Pallandri. The trial Court after necessary proceedings awarded 10 years' imprisonment each under section 377, A.P.C. and 10 years' imprisonment each under section 12 Offence of Zina (Enforcement of Hudood) Act, 1985, whereas, they were acquitted of the charge in the offence under section 506(2), A.P.C. Feeling aggrieved from the judgment of the trial Court, the convicts filed an appeal before the High Court. During the pendency of appeal, on the objection raised by the counsel for the complainant that the convict, Nisar Ahmed did not appear at the time of pronouncement of judgment before the trial Court, who is absconder/fugitive from law, therefore, the appeal to his extent is not competent without the surrender of the convict; the counsel appearing on behalf of the convict, Nisar Ahmed, submitted that he does not want to press the appeal to the extent of the convict, Nisar Ahmed, whereupon, the learned High Court deleted his name from the memorandum of appeal. The learned High Court after hearing the parties upheld the conviction recorded by the trial Court to the extent of the appellant, herein, vide impugned judgment dated 11.06.2018, hence, this appeal.

3. Ch. Shoukat Aziz, Advocate, the learned counsel for the convict-appellant, argued that the impugned judgment is against law and the facts of the case. He contended that both the Courts below failed to appreciate the evidence brought on record in a legal manner. The learned counsel drew the attention of this Court towards the contents of FIR and submitted that one of the star witnesses, Muhammad Waseem, has not been produced before the Court, in spite of the fact that his name was duly incorporated in the calendar of witnesses. He further added that the other star witness, Muhammad Javed, who along with the complainant went to the Police Station for registration of the case, has also not been examined. The learned counsel forcefully contended that the trial Court on the non-production of the star witnesses, instead of drawing the adverse inference under the provisions of Article 129 of the Qanun-e-Shahadat Order, 1984, awarded the sentences of 10/10 years' imprisonment to the convict. He further added that both the Courts below also failed to take into consideration that the report of histopathologist is negative and furthermore no sign of violence was found on the body of the alleged victim. He contended that much reliance has been placed on the statement of one, Irfan Saleem, who had got the enmity with the accused in connection with the murder of his father, therefore, due to personal grudge, the said witness got involved the convict-appellant in the present case. He maintained that not an iota of evidence has come on the record in the present case to connect the appellant in the commission of offence and no case of Zina is made out. The learned counsel referred to and relied upon the case law reported as Kazim Hussain alias Qazi v. State 2008 PCr.LJ 971 and Habibullah v. Ghulam Rasool [2011 SCR 501].

5. On the other hand, Mr. Asghar Ali Malik, Advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convict-appellant. He submitted that the trial Court passed the well reasoned judgment and the learned High Court while assigning the strong reasons upheld the same. He added that in such like cases, under law, the statement of the victim is sufficient to prove the act of sodomy. In continuation of the arguments, he submitted that the statement of the victim is in line with the allegation levelled in the FIR. Regarding the report of Histopathology Department, the learned counsel submitted that after thorough discussion the Courts below held that the sample was examined after a considerable delay, therefore, the spermatozoa could not be seen. The learned counsel referred to and relied upon the case law reported as Sameeullah Khan v. The State and another [2000 PCr.LJ 769], Saleem Khan and others v. The State and others [2001 PCr.LJ 503] and Istikhar Hussain v. Shahbaz and 4 others [2013 YLR 747].

6. Sardar Karam Dad Khan, the learned Advocate-General while adopting the arguments advanced by the learned counsel for the complainant submitted that the statement of the victim cannot be ignored lightly. He also referred to the statement of doctor and submitted that the doctor opined that the act of sodomy has been committed in the instant case. He lastly submitted that no such discrepancy in the prosecution story is available which may create a reasonable doubt; therefore, this appeal is liable to be dismissed.

7. We have heard the arguments and gone through the record made available along with the impugned judgment. In the case in hand, the allegation of the commission of sodomy has been levelled against the convict-appellant and the co-accused (not before us). The story narrated in the FIR is that the victim after attending the annual anniversary of the saint of Dowan Sharif told his brother, Waseem, that he along with the convict-appellant and the co-accused is going back to home. In the way back to home, the convict-appellant and the co-accused beat him and forcibly committed the act of sodomy with him. The brother of the complainant was cited as a witness in the calendar of witnesses but not produced and examined by the Court. The uncle of the victim, namely, Muhammad Javed, who allegedly along with the complainant went to the Police Station for registration of the case, was cited as a witness in the calendar of witnesses, but he was also not produced and examined in the Court. Although, it is not mandatory for the prosecution to produce all the witnesses cited in the calendar of witnesses; however, if a material witness is withheld then under the provision of Article 129 of the Qanun-e-Shahadat Order, 1984, the presumption can be taken against the prosecution that such witness if produced would have not supported the case of the prosecution. In a recent judgment delivered in a case titled Basharat Hussain v. Ejaz and others (Criminal Appeal No. 11 of 2017, decided on 25.10.2018), this Court while dealing with the proposition held as under:- "The prosecution out of 23 witnesses mentioned in the calendar of challan produced 20 witnesses before the Court. The learned Shariat Court while handing down the impugned judgment has drawn the adverse inference that the impartial witnesses, i.e. Sardar Shah, Raja Iqbal, Raja Maqsood and Raja Mumtaz, have been withheld by the prosecution, who are respectable of the locality and as per prosecution story were present at the spot being members of panchayat. It may be observed here that under law it is not obligatory for the Court to draw adverse inference in each and every case and sole discretion in this regard lies with the Court to decide according to the facts of each case. In the instant case, the record reveals that the prosecution neither produced some of the injured as witness, nor the members of panchayat, as pointed out by the learned Shariat in the impugned judgment, were cited as witness, whereas, keeping in view the circumstances of the case, these witnesses were most natural and material witnesses of the occurrence. In such state of affairs, we are satisfied that the learned Shariat Court while drawing the adverse inference has exercised the discretion judiciously; as according to the statutory provision i.e. Illustration (g), of Article 129, of the Qanun-e-Shahadat Order, 1984, if the available evidence is not produced by a party, it can be presumed that the same has been withheld due to being not supportive to such party." We agree with the learned counsel for the appellant that after excluding the afore-discussed witnesses the story narrated by the complainant cannot be believed in toto. Moreover, according to the prosecution story prior to the commission of the act of sodomy, the accused beat the victim, extended the threats to do away with his life and one of the accused pointed pistol at his temple and inflicted a butt blow to him, however, in the medical report no injury or sign of violence has been found at the body of the victim and the alleged pistol has also not been recovered from the accused which creates dent in the prosecution story. It is established from the medical report that at the time of occurrence, the victim was young man having the age of 20 years; therefore, non-resistance by him also cannot be ignored lightly.

8. Another aspect of the case is that the report for detection of spermatozoa of the accused is negative and the reason assigned by the doctor is that the sample was sent after delay of 5 days, which is admittedly the negligence of the prosecution and the benefit of which must go to the accused. We agree with the stance taken by the learned counsel for the complainant that in such like cases the statement of victim is sufficient to record the conviction, but from the juxtapose perusal of the statement of the victim and the contents of FIR, it reveals that there is a lot of contradictions in the story narrated in the FIR and the statement of the victim and improvement has been made in the statement, therefore, this aspect also goes in favour of the convict. The trial Court awarded 10 years' imprisonment to the convict under section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985. This statutory provision relates to kidnapping or abduction of a person to commit unnatural lust, whereas, in the case in hand, after examining the statement of the victim it appears that the provisions of section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, are not attracted as the constituents of kidnapping/abduction are not available. So far as, the version of the learned counsel for the complainant and the learned Advocate-General that it has been proved from the medical report that the act of sodomy was committed, is concerned, it may be stated that although the incident is proved from the medical report but its nexus with the convict is not proved beyond reasonable doubt as the evidence brought on record in this regard does not inspire confidence. The case law referred to and relied upon by the learned counsel for the complainant having distinguishable facts and features is not applicable in the instant case; therefore, there is no need to discuss the same. After examining the record, we are of the view that the prosecution failed to prove its case beyond reasonable doubt, therefore, the trial Court was not justified to award the sentence of 10/10 years' imprisonment under sections 377, A.P.C. and 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985 and the learned High Court wrongly concurred with the same. Thus, in such scenario, we accept this appeal and set aside the judgments of the Courts below and the convict is acquitted of the charge while extending him the benefit of doubt. JK/9/SC(AJ&K) Appeal accepted.