2004 PLP 1062 (MLD)

This appeal is directed against judgment, dated 9‑3‑2001, by Additional Sessions Judge, Attock, whereby learned trial Judge, convicted the appellant under section 377‑P.P.C. and sentenced him to undergo R.I. for 7 years, plus to pay a fine of Rs.25,000 in default whereof to undergo S.‑I. For one month.

2. Occurrence of abduction of Muhammad Awais in this case had taken place on 4‑6‑2000 and sodomy was committed with him during night between 4/5‑6‑2000, in the maternity dispensary, in the area of village Mirza, at a distance of 3 kilometers from Police Station, Saddar Attock. F.I.R. Ex.PD, was recorded at the police station, by. Karam Dad, ASI (P.W.7) on 5‑6‑2000, at 3‑00 p.m, on the statement of Khalid Masood (P.W.5) father of Muhammad Awais (P.W.4). According to F. I. R., Muhammad Awais, son of the complainant had left his house at 1‑30 p.m., for saying prayers. He did not return till evening. Complainant went in search of his son, alongwith his brother Nadeem Anjum and Amjad Javed. In spite of search for the whole night, they could not find him. While in search they reached near maternity dispensary, Mirza at about morning time. They came across Muhammad Awais, victim in this case and Muhammad Inayat (appellant herein). On seeing .them Muhammad Awais made noise, whereupon Muhammad Inayat, ran away leaving them there. Muhammad Awais told them that he was going yesterday for saying prayers, Muhammad Inayat met him on the way. He took him to Hassan Abdal for the purpose of commission of sodomy but as he could not find a suitable place there, he brought him to maternity, dispensay of Village Mirza. There he forcibly committed sodomy with him, after removing his shalwar. He told his father that in spite of his, hue and cries, many times and effort to get himself released, Muhammad Inayat did not leave him and committed sodomy with him. In the end, complainant prayed that the accused be proceeded in accordance with law.

3. Karam Dad, AS1, after recording F.I.R., prepared statement of injuries (Exh. PE) of Muhammad Awais and sent him alongwith Muhammad Ijaz, constable, for medical examination. Muhammad Ijaz produced him and sealed phial before him which had been given to him by the doctor, who had medically examined Muhammad Awasi. The same was taken into possession by the ASI vide memo Exh.P.A. He recorded statements of the witnesses, inspected the spot and prepared site‑plan. Ex. PF. Appellant was produced before him by "Ch. Tufail and Rashid on the same day. He was formally arrested. On the following day, he got him medically examined qua potency. After recording statements of the P.Ws and on completion of necessary investigation, he got the challan submitted to Court.

4. Appellant was charged under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance and under section 377‑P.P.C. On his pleading not guilty, learned trial Judge proceeded with the trial. In all statements of 7 P.Ws. were recorded. Dr. Abdul Hameed who had medically examined Muhammad Awais, aged 18 years, on 5‑6‑2000 appeared as P.W.3. He had removed three anal swabs from the anal area of the examinee but had deferred the opinion about commission of sodomy with him, till receipt of report from the Office of the Chemical Examiner, about the swabs. On receipt of report Exh.PB/1 from the Office of the Chemical Examiner that swabs were stained with semens, he declared that the examinee had been subjected to sodomy within 12 to 24 hours. Same doctor on 6‑6‑2000 medically examined Muhammad Inayat, appellant, qua potency and declared that he was fit to perform sexual intercourse.

5. Muhammad Awais, victim in this case, appeared as P.W.4 After re‑narrating the, story about the occurrence, which he had told to his father, which his father had got recorded in the F.I.R., he added that he had been got medically examined by the police. While narrating the facts about the occurrence, he made an improvement by stating that accused was armed with a knife and had threatened him with that. During cross- examination, victim stuck to the statement which he had made during examination‑in‑chief. He denied the suggestion emphatically that he was habitual. He also stated that nobody had committed sodomy with him before this occurrence. He denied the suggestion that someone else had committed sodomy with him and as the accused was present there, he got him in solved in this case. He denied the suggestion that the accused was mentally abnormal and was not in a position to commit sodomy.

6. Khalid Masood, father of the victim and complainant in this case, appeared as P.W.5 by and large, he repeated the same facts which he had got recorded in the F.I.R. During cross‑examination, he expressed ignorance about the fact that the accused was ill and had remained under treatment for mental disorder. He also denied the suggestion that actually someone else has committed sodomy with his son but as the accused was accompanying his son or was standing close to the place, where his son was subjected to sodomy be had lodged this case against him due to suspicion.

7. Amjad Javed, who had accompanied the complainant during search of the victim and in whose presence victim had narrated the occurrence which had been committed with him, appeared as P.W.6 and corroborated the statement made by the complainant. During cross- examination, he stated that Muhammad Awais had met them at a distance of 20 yards from maternity dispensary of village Mirza. He denied the suggestion that in fact, he had committed sodomy with Muhammad Awais and that to conceal that fact, he had falsely involved the accused in this case.

8. Karam Dad, ASI, who had investigated the case, appeared as P.W.7. He narrated the details of investigation done by him, including arrest of the accused (details of investigation done by him have been noted in an earlier para). During cross‑examination he stated that there was boundary wall around the place of occurrence. He admitted that he had not taken into possession shalwar of the victim. He denied the suggestion that he had not investigated the case independently and had done whatever was told to him by the complainant. Statements of remaining witnesses are more or less of a formal nature.

9. Appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. In answer to the question, "why this case against you and why the P. Ws. have deposed against you?", he stated as follows:‑‑ "In fact I am an abnormal person mentally. I experienced mental fits frequently. 1 had been receiving treatment of my mental ailment in different hospitals. Someone else had committed sodomy upon Muhammad Awais P.W. who is a known passive agent and I have been made a scapegoat because the P.Ws. knew about my mental condition. Therefore, I am absolutely innocent in this case. Since, during the abnormal period of my mental health, I have been told, that I use to aimlessly wander in the streets of my village as such I might happened to be near the maternity home. However, I did not do intentionally or otherwise on seeing the P.Ws. 1 am innocent". He produced in defence Raja Muhammad Shoaib, Psychiatrist, CMH, Attock, as D. W.1 and Cr. Ch. Ejaz‑ur‑Rehman, Assistant ‑Professor of Psychiatry, Rawalpindi Medical College, as D.W.2. D.W.1, stated that chits mark `A', mark `B' and mark `C' were photostat copies of the prescription which he had written and signed for the treatment of Muhammad Inayat, resident of Mirza. He stated that he had remained under his treatment intermetently from 27‑4‑2000 to 29‑5‑2000. He added that Muhammad Inayat had appeared before him three times. According to him, he was suffering from hypomania during those days. During cross‑examination, he stated that patient of hypomania cannot be addressed as an insane person. He explained that this is a state of phychological disorder and not an organic decease. He explained that such a patient remains absolutely fit physically. D.W.2 stated that mark `D' was photostat copy of the discharge slip in respect of Muhammad Inayat aged 29 years. He stated that chit was not in his handwriting nor bears his signatures. He explained that the same was in the handwriting of medical officer and bears his signatures. He added that patient had remained under his treatment from 9‑11‑1998 to 28‑11‑1998. He stated that Muhammad Inayat who was present in Court, was the same patient. During cross‑examination, he denied the suggestion that he had identified the accused in the Court out of the sheer guess work.

10. Learned counsel for the appellant, after having gone through the evidence, argued the case for some time but then submitted that he does not want to challenge the conviction of the appellant. However, he prayed for reduction in the sentences. Learned counsel for the State defended the judgment of the trial Court and opposed the prayer of the learned counsel for the appellant for reduction in the sentences.

11. Notwithstanding the fact that the learned counsel for the appellant have not challenged the conviction of the appellant, I have gone through the evidence, examined the record and perused the impugned judgment.

12. In this case F.I.R. was lodged with all promptitude. Although victim in this case is the only witness who deposed about commission of sodomy with him but as nothing was brought on record either through cross‑examination or by way of producing evidence that there was any enmity between the complainant and the appellant or between the victim and appellant and between their families. There is no reason to doubt the statements of complainant, victim and Amjad Javed. The suggestion put to the victim that in fact sodomy had been committed with him by some one else and the accused was involved on account of the fact that he was present there, although, was denied emphatically but even otherwise it does not advance the case of the defence as due to that suggestion presence of the accused at the time of commission of offence with the victim stands proved. Statement made by the victim finds corroboration from the medical evidence deposed to by Dr. Abdul Hameed, P.W.3 and by the report Exh.PB/1, received from the Office of the Chemical‑Examiner.

13. Evidence produced in defence about the illness of the appellant during the periods mentioned by both the D.Ws, even if believed cannot advance the case of the appellant as there is no proof on record 'that appellant was ill or suffering from any disease during the days in which this occurrence had taken place. In the circumstances, I am fully confined that prosecution had been able to prove the case against the appellant beyond any reasonable shadows of doubt.

14. Prayer made by the learned counsel for the appellant for reduction of the sentences, although has been opposed emphatically by the learned counsel for the State, but I feel that there are some facts on record which warrant a lenient treatment. In that, the victim hi self was a young man aged 18/19 years. He had gone with the appellant to Hassan Abdal and had remained roaming there. It was thereafter that he was, as stated by him brought to the maternity dispensary and subjected to sodomy. No injury was found on any part of his body. It cannot be believed that a body of that age who was physically strong and fit would not have received injuries, if he had resisted the commission of sodomy with him. In the circumstances, I am of the view that inference can be drawn that ultimate commission of forcible sodomy was of a lesser degree. Keeping all these facts in view, I feel sentence of R.I. for 4 years, plus to pay a fine of Rs.5000 in default whereof to undergo S.‑I. for 3 months, will meet the ends of justice. Order accordingly. Benefit of section 382‑B, Cr.P.C. shall be given. Resultantly the appeal is dismissed with above alternation/reduction in the sentence. H.B.T./28/FSC Appeal dismissed accordingly.