1988 P Cr (PLP)

ABDUR REHMAN KHAN KAIF, J.-- This criminal appeal by Nigah Shah son of Lal Shah resident of Sheikhpur within the jurisdiction of Police Station Tarnol, District Islamabad, is directed against the judgment of the learned Additional Sessions Judge, Islamabad, dated 21-12-1987 whereby he convicted the appellant under section 377, P.P.C. and sentenced him to R.I.. for three years and a fine of rupees one thousand. In default of payment of fine, the accused was to undergo further R.I. for six months. The amount of fine, if recovered, was to be paid to the victim as compensation.

2. The facts of the case as narrated by the complainant Qurban Hussain (P.W.4), father of Aamar Hussain, victim (P.W.1) are that he moved an application before the S. H .O., Police Station Tarnol on 7-5-1987 at 7-05 p.m. wherein he alleged that on the day of incident, he went to attend to his duty and on his return, his son, Aamar Hussain, aged 8/9 years informed him that while he was grazing his cattle alongwith one Jehangir, son of Saeed Muhammad at a distance of three furlongs from the village, Nigah Shah, accused, resident of the same village, followed him at 2-00/3-00 p.m. and apprehended him in a Nallah. He put off his Shalwar forcibly and committed unnatural offence with him. The occurrence according to him was witnessed by Umar Gul Pathan, servant of Noor Ahmad, resident of the same village, who was guarding his wheat crop at a distance of one and a half furlong.

3. After the usual investigation and arrest of the accused, a complete challan was submitted for trial against the accused.

4. At the trial the prosecution examined seven witnesses in support of its version. Aamar Hussain, the victim (P.W.1) has charged appellant for committing unnatural offence with him. According to him, on 7-5-1987 at about 3-30 p.m. while he was grazing his goats near a Kassi, the appellant caught hold of him, removed his Shalwar and committed carnal intercourse with him against the order of nature. According to him, he informed Jehangir and his father, Qurban Hussain, about the occurrence. Dr. Stephen, Medical Officer, Islamabad, (P.W.2) examined the victim on 7-5-1987 at 11-15 p.m. and made the following report: "No.1. There was no evidence of semen stained on the body or the genetals. No.2. There was no evidence of abrasion on both the knees or elbows. No.

3. There was no evidence of abrasion, or blood or marks of violence on perienal region or elsewhere on the body. No.

4. On examination of the rectum, it was found that the anal sphincter was normal. I did not find any blood stains. No.

5. On proctoscopy, there was no evidence of any laceration or tear on the mucosal wall of the anal canal."

5. He took three annal swabs and sent the same to the Chemical Examiner for detection of semen which were handed over to one Sher Afzal, F.C. Subsequently, on the basis of the positive report (Exh.P.B.) he expressed the opinion that carnal intercourse was committed with Aamar Hussain. In his cross-examination, the 'Medical Officer has, however clearly stated that according to his M.L.R. (Exh.P.A.) no carnal intercourse had been committed with the victim. Dr. Syed Imtiaz Hussain.(P.W.3) medically examined the appellant on 14-5-1987 at 2-30 p.m. and found him fit to perform sexual intercourse while Qurban Hussain son of Karm Elahi (P.W.4) who is the complainant and father of the victim, has reiterated almost similar facts as given in the complaint incorporated in the F.I.R. Lal Din, A.S.I. (P.W.s) has formally registered the case vide F I.R. (EXh.P.F.1) and had sent the victim with Sher Afzal, F-.C. for his medical examination. He kept the sealed parcel containing swabs in safe custody and delivered the same to Muhammad Ismail, Constable, for onward transmission to the office of the Chemical Examiner. Muhammad Ismail, F.C., (P.W.6) has deposed that he had delivered the parcel containing swabs on 16-5-1987 which were delivered in the office of the Chemical Examiner. Muhammad Ishaq, S.I. (P.W.7) has conducted the investigation of the case and after the completion of the investigation, he submitted a challan for trial against the accused.

6. The accused when examined under section 342, Cr.P.C. denied the allegations and stated that he was falsely involved in the case on account of enmity due to his quarrel with the victim as the goats of the victim had damaged his crop. A similar version was stated by him in his statement recorded on oath under section 340(2), Cr.P.C. The accused examined Umar Gul son of Aslam and Jehangir son of Said Ahmed as witnesses in his defence. The presence of both the above-mentioned witnesses was stated in the F.I.R: Umar Gul (D.W.1) has fully supported the defence plea of the accused and has stated that he was innocent and was charged due to his quarrel with the victim. The other witness, Jehangir (D.W.2) has, however, shown ignorance about the occurrence.

7. We have heard the learned counsel for the parties and have gone through the evidence available on the record with their assistance.

8. The learned counsel for the appellant has contended that the medical evidence available on the record was clearly in conflict with the statement of the victim and that the eve-witnesses mentioned in the F.I.R. namely, Umar Gul had categorically supported the defence version in its entirety whereas the other witness Jehangir mentioned in the F.I.R. showed his ignorance about the occurrence. He submitted that the defence plea was raised at the initial stage and has been fully substantiated through the evidence on the record.

9. On consideration of the entire evidence, it becomes clear that there is a solitary statement of the victim, which is in direct conflict with the medico-legal report. The statement of Dr. Stephen totally belies the ocular version. The medical officer has categorically stated that there was no evidence of semen stains on the body or on the genitals of the victim; there was no evidence of abrasion on his knees and elbows; there was no evidence of abrasion, blood or marks of violence on perienal region or elsewhere on his body and on the examination of rectum, it was found that the anal sphincter was normal and he did not detect any blood stains and on proctoscopy, there was no evidence of any laceration or tear on the mucosal wall of the anal canal. It is evident from the report that excepting the positive result of the swabs, there was no evidence that carnal intercourse had been committed with the victim. No doubt the report of the Chemical Examiner is positive, buts it also appears in conflict with the M.L.R. and it cannot be conclusively admitted that the semen detected on the swabs was in fact that of the appellant without any grouping test. It is also evident that the parcel containing swabs was also sent for analysis and report after a number of days. Furthermore, none of the two eye-witnesses, namely, Jehangir and Umar Gul has supported the prosecution version. On the contrary, both of them were produced as defence witnesses out of whom Umar Gul has clearly supported the defence version of. the appellant.

10. Keeping in view, all the above facts the plea raised by the appellant in his defence becomes quite plausible in the circumstances, which was taken at the very beginning of the trial when questions in line with the defence plea were put to the victim.

11. The prosecution case on the whole is replete with great doubt and suspicions and the benefit of such doubt shall have to be extended to the appellant.

12. For the reasons stated above, we allow the appeal of Nigah Shah son of Lal Shah, appellant, set aside his conviction and sentence under section 377, P.P.C. and acquit him of the charge. He shall be released forthwith if not required in any other case. S.A./418 / F.S.C. Appeal accepted.