2008 P Cr (PLP)

HAZIQUL KHAIRI, C.J.

This appeal arose from the judgment, dated 26-3-2005, passed by the learned Sessions Judge, Muzaffargarh whereby appellant Muhammad Suleman son of Manzoor Ahmad was convicted under section 377, P.P.C. and sentenced to undergo four years' R.I. with fine of Rs.25,000 or in default thereof to further suffer six months' S.I. The appellant was, however, extended benefit under section 382-B, Cr.P.C.

2. Briefly stated the facts of the case are that the father of the victim namely Ghulain Mustafa had lodged F.I.R., dated 7-7-2004 stating that in search of his son, he went to the house of the appellant accompanied by his brother-in-law Muhammad Nawaz and found that appellant Muhammad Suleman had been committing sodomy with his son. Upon seeing them the appellant fled away. The complainant narrated the crime committed by the appellant to Nazar Abbas, A.S.-I./Investigation Officer (P.W.7) who after making necessary formalities sent the complainant's statement to the police station for registration of case, on the strength of which, formal F.I.R. Exh. P. C., was made by Akbar Ali, H.C./Moharrar (P.W.4). Nazar Abbas, A.S.-I./Investigating Officer (P. W.7) prepared the injury statement of Babar Ali, victim and sent it to Rural Health Centre, Khangarh. He recorded statement of witnesses under section 161, Cr.P.C.

3. On the next day, the Investigating Officer (P.W. 7) made a spot inspection and prepared a site plan without scale, Exh. P. D., on 19-10-2004 i.e. after 12 days, the accused was apprehended and was medically examined on the same day by Dr. Muhammad Shafique (P. W.3).

4. After necessary legal formalities, report under section 173, Cr.P.C. was submitted to the trial Court and the accused was formally charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 337-J of P.P.C. The appellant pleaded not guilty and claimed to be tried.

5. In order to prove this case, the prosecution produced Khushi Muhammad, constable (P.W.1), Ghulam Abbas, constable (P.W.2), Dr. Muhammad Shafique (P.W.3), Akbar Ali, Head Constable (P.W.4), Ghulam Mustafa (P.W.5), Babar Ali (P.W.6) and Nazar Abbas, A.S.-I. (P. W .7).

6. The accused in his statement recorded under section 342, Cr.P.C. denied the whole incriminating material put to him and maintained that he had been falsely implicated in the present case. He stated that victim Babar Ali was an employee of the appellant serving at his Poultry Shop, who stood guarantor of some articles purchased by Babar Ali on instalments from Bhaiya Corporation where under Babar Ali, victim was supposed to make daily payments of the instalments. Since he defaulted in the daily payment of the instalments, certain quarrel had taken place between the appellant and the victim. It was further stated that the victim's father had taken a loan of Rs.25,000 from the appellant but he failed to repay the same, due to which enmity arose between him and the victim's father.

7. According to P.W.5, he was an eye-witness of the act of sodomy committed by the appellant. However, as per report of P.W.3 Dr. Muhammad Shafique, no mark of violence was found on the body of the victim and no stain of semen was seen on the body or clothes of the victim. He was examined on the same day by P.W.3 and no anal tear was discovered by him similarly the report of Chemical Examiner states that the swabs were not stained with semen. However, tranquilizers were detected to have been administered by some one on the victim.

8. P.W.7 Nazar Abbas A.S.-I. recorded the statement of the victim (P.W.6) under section 161, Cr.P.C. The victim had stated that his Shalwar was stained with blood but the Shalwar examined by the Chemical Examiner does not disclose any stain of blood thereon.

9. One Muhammad Ayub was produced as D. W.1 who was serving as Manager in Bhaiya Corporation, Khangarh. He stated that on 28-4-2004, as per "receipt Book", brought by him, Babar Ali victim had purchased Air Cooler from Bhaiya Corporation and Suleman appellant stood guarantor. The total price of the cooler was Rs.6,500 and 14.1,000 was paid as down payment. Again the said Babar Ali victim purchased Amplifier with Deck on 24-4-2004 for worth Rs.5,000 and Rs.500 was paid by him as down payment. Both these outstanding amounts were not paid by the victim as there was default in payment of instalments.

10. The prosecution cross-examined defence witness but the documentary evidence adduced by the appellant coupled with ocular evidence of the said defence witness has remained unshaken. There is no reason not to disbelieve this defence witness as he is a disinterested witness and has come out with reliable documentary evidence. More importantly the medical report and chemical reports go in favour of the appellant, which is candidly admitted by the learned counsel for the appellant. The enmity between the parties is also not to be ruled out in view of the facts stated above. The prosecution has thus, failed to establish its case against the appellant who is entitled to benefit of doubt.

11. Resultantly, I accept this appeal and set aside the impugned judgment, dated 26-3-2005 with a direction to the jail authorities to release the appellant forthwith if not required in any other case. These are the reasons of my short order, dated 22-9-2006. H.B.T./2/FSC Appeal accepted.