1987 P Cr (PLP)

On internal examination of rectum, the medical officer found, "a tear 1 cm x cm x muscle deep at the level of 12 O'clock". He also found "an abrasion 2 cm x 1 cm at 6 O'clock position of anus. Rectal mucosa was congested and red".

3. The medical officer took 4 anal swabs. He also got the suspected areas of the clothes stained with blood. These were sealed in separate bottles and handed over to the police for onward despatch to the Chemical Examiner alongwith an envelope. On receipt of the report of Chemical Examiner Ex.PB the medical officer opined that the swabs were stained with semen and cuttings of clothes were stained with semen and blood.

4. It was stated by Dr. Manzoor Ahmad PW. 1 in cross‑examination that in spite of his suggestion, Abbas Ali was not got admitted in hospital and was taken away to his house by his father.

5. Abbas Ali died in his own house on 7.30 A.M. on 12‑6‑1987. His dead body after necessary formalities, was sent for post‑mortem examination which was conducted on 12‑6‑1987 at 5‑15 p.m. by PW. 2 Dr. Muhammad Naseer Rana. On external examination of dead body the medical officer noted "a tear (laceration) 1 cm x 0.5 cm x muscle deep at the level of 12 O'clock with rupture of underlying vessels". He also noted "an abrasion 2 cm x 1 cm at 6 O'clock position of anus. Rectal mucosa was congested and red". No mark of injury was found on rest of the body. On dissection the organs present in all the three cavities were found healthy. Three swabs from anal and peri‑anal region were taken and sent to Chemical Examiner Lahore through police. All the injuries were ante‑mortem. In the opinion of the medical officer, death in this case resulted from haemorrhage and shock due to injury No.1, which was, in the ordinary course of nature, sufficient to cause death. Probable time between injuries and death was approximately within 18 hours and post‑mortem was conducted after about 12 hours of death. On receipt of the report of Chemical Examiner Ex.PD the medical officer opined that the three swabs sent by him were found stained with semen and blood which finally proved that act of sodomy led to injury No.1 of Abbas Ali. ASI Muhammad Younas PW 10 during inspection of the place of occurrence on 11‑6‑1987 collected blood‑stained earth from a room of the house of the accused vide memo Ex.PJ. He also took in possession Shalwar P.5, stained with blood and semen, belonging to Asghar accused lying in the room vide memo Ex.PK in presence of Tariq Mahmood PW.9. The case was initially registered under section' 377 PPC and section 12 Ordinance VII of 1979. The offence under section 302 PPC was added after death of Abbas Ali vide the Rozenamcha report Ex. PM. F. C. Zia Ullah PW 6 after medical examination of Abbas Ali on 11‑6‑1987 was given Shalwar P.1 and shirt P.2 belonging to Abbas Ali, both stained with blood and semen by the medical officer. he handed over these clothes to A.S.I. Muhammad Younas PW 10 who took them in possession vide memo Ex.PH. Muhammad Asghar accused was arrested by A.S.I. Muhammad Younas on 15‑6‑1987 who got him medically examined. PW.3 Dr. Khalid Shafqat Cheema opined that Muhammad Asghar accused was fit to perform sexual intercourse. The accused was challaned after completion of investigation Before commencement of the trial the learned public prosecutor made an application for getting Muhammad Asghar accused medically examined for determination of age. This was allowed. Muhammad Asghar accused was examined by Dr. Muhammad Khalid C.M.O. Services Hospital Lahore on 14‑10‑1987. In his opinion the accused was aged about 16 years.

6. The accused was charged under sections 377 and 302 PPC. He denied the charges. In support of its case prosecution examined 10 witnesses in all. PW 8 Muhammad lqbal and PW 9 Tariq Mahmood supported the prosecution case as stated in the FIR. The medical evidence was furnished by Dr. Manzoor Hussain PW 1, Dr. Muhammad Naseer Rana PW 2, Dr. Khalid Shafqat Cheema PW 3, Dr. Muhammad Khalid C.W.1 as given in detail above. The case was investigated by A.S.I. Muhammad Younas PW

10. The evidence of rest of the witnesses was of formal nature. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. He stated that he did not know as to why he has been involved in this case. Excepting the copy of his birth entry Ex.DA he did not produce any evidence in defence. In his statement under section 340 (2) Cr.P.C. on oath he stated that he was innocent and had been falsely involved in this case.

7. I have heard the learned counsel appearing on behalf of the State and the accused and have also carefully gone through the record. It was contented on behalf of the accused firstly, that there was delay in lodging of the F.I.R. which makes the prosecution case doubtful; secondly, that Muhammad Iqbal and Tariq Mahmood PWs were interested and not reliable; thirdly, that in fact Riaz, a relative of the accused, committed the offence and the accused has been substituted for him falsely and that no one of the locality excepting the witnesses was examined as witness during the trial. It was finally argued that even if the prosecution case is accepted than also no offence under section 302 PPC could be said to have been made out against the accused. The learned Public Prosecutor on the other hand controverted the above contention. He argued that the witnesses were natural and independent. Secondly that substitution in such like cases is not possible; thirdly, place of occurrence is in a way admitted on behalf of the accused and that the offences under sections 302 and 377, P.P.C. stand fully proved against the accused.

8. The occurrence in this case took place at about 2.30 P.M. on 11‑6‑1987. The FIR itself does not contain any reason for not reporting the matter immediately to the police. However, during the trial it was stated by PW 8 Muhammad Iqbal complainant that after the occurrence he sent message to his brother Aziz, father of Abbas Ali. He kept waiting for him at the place of occurrence and after waiting for sufficient time proceeded to report the matter to police. He stated in cross‑examination that Aziz, father of Abbas Ali reached the canal bridge immediately after recording of his statement Ex.PG. This explanation though not mentioned in F.I.R. seems probable. It was natural for Muhammad lqbal complainant to wait for his brother Abdul Aziz specially when a message bas already been sent to him. This fact is not mentioned in the F.I.R. which is not expected to be a detail document. Muhammad Iqbal PW and his relatives were upset by the occurrence on account of which he might have omitted to explain the delay in reporting the matter to the police. The time of occurrence and the place of occurrence is in a way admitted in cross‑examination on behalf of accused. I am not inclined to agree with the learned counsel that the FIR was registered on 12‑6‑1987 after the death of Abbas Ali and after some preliminary enquiries at the spot. It is in evidence of S.I. Saleem Ahmad P.W.5 that the daily diary of police station is closed at 8 A.M. The statement Ex.PG was recorded at 7‑10 P.m. on 11‑6‑1987 and the formal F.I.R. Ex.P.G/1 was recorded at the Police Station on the same day at 7‑25 P.M. vide daily diary report No.20. This means that the formal F.I.R. was recorded within 15 minutes of recording of the statement Exh.P.G. It is not possible that recording of entries in the daily diary register or the register of F.I.Rs. could be suspended during .the entire night. The medical officer did not state in his examination on 11‑6‑1987 that there was any chance or likelihood of the death of Abbas Ali. The fact that Abbas Ali was likely to die as a result of the injuries to his rectum was not known to any one. There is no evidence that any one suspected death of Abbas Ali. As such there was no need for the police to suspend recording of entries in the daily diary register of the police station or the register of F.I.Rs. from the time of occurrence till following morning. In my view there is no merit in the contention of learned counsel for the accused that there was delay in recording of the F.I.R. or that the F.I.R. was recorded on 12‑6‑1987 after the death of Abbas Ali.

9. The eye‑witness account has been furnished by Muhammad Iqbal P.W.8 an uncle of Abbas Ali deceased and Tariq Mahmood a maternal‑cousin (Khala Zad) of Abbas Ali deceased. These witnesses are related to the deceased but had absolutely no previous enmity against the accused or his family to falsely implicate him in this case. The house of Tariq P.W.9 adjoins the house of Asghar accused. Only a wall intervenes the two houses. The house of Muhammad Iqbal P.W. is in front of the house of Asghar accused in the same street. These are natural witnesses. It was stated by Muhammad Iqbal that he saw Asghar accused talking with Abbas Ali deceased in the street; that he heard cries of his nephew after a short while; that he knocked at the door of the house of the accused which attracted Tariq and Akhtar P.Ws; that they entered the room of the house o the accused and found Abbas Ali naked and bleeding from rectum; that Asghar accused was also naked who ran away from the room. The prosecution's case has been fully and consistently supported by these two witnesses. The learned counsel argued that no other person from the Mohallah came forward to support the prosecution case nor any one appeared as witness to state that he saw the accused running away naked outside his house. In my view both the parties being residents of same street, their neighbours might have not come forward to support either of the two parties in order to avoid any future enmity. It was contended by the learned counsel that according to Muhammad Iqbal P.W. his mother lived in a nearby Mohallah alongwith her son Muhammad Hanif but according to Tariq she lived in a village in District Sialkot. The learned counsel, therefore, argued that this conflict in the statements of two witnesses makes them unreliable. In my view this contradiction is not material and does not in any way effect either their veracity or merits of the case. The learned counsel argued that the three witnesses were able‑bodied persons and as such the accused of minor age, could not have escaped from the room. This argument is without any force because the three witnesses immediately after entering the room were attracted towards Abbas Ali. During this period it was not difficult for Asghar accused to run away. In my view there is nothing in evidence to disbelieve these two witnesses. They have been corroborated by the recovery of Shalwar P.5, stained with blood and semen, belonging to Asghar accused and the medical evidence. Muhammad lqbal P.W.8 admitted in cross‑examination that Riaz alias Sukhi, a cousin of the mother of Asghar accused, also lived in same house with Muhammad Rafique; that 'Riaz was unmarried and that these days he was residing in Sargodha. He denied the suggestion that in fact Riaz committed sodomy with Abbas Ali and that in order to grab the house of Rafique this case was falsely brought against his son Asghar. It was stated by Asghar accused in his statement under section 342 Cr.P.C. that he was not present in his house at the time of occurrence. He further stated that his maternal‑uncle Riaz was in his house. These suggestions indicate firstly, that the sodomy with Abbas Ali was committed by Riaz and that the place of occurrence was not disputed on behalf of the accused. If Riaz, also related to Muhammad Rafique, had been the real culprit, there is no circumstance in evidence to show as to why he was left out and in his place Asghar accused was falsely involved in this case. In my view prosecution has fully proved its case against the accused.

10. It was stated by Dr. Muhammad Khalid C.W.1 that the age of Muhammad Asghar accused was about 16 years. According to the birth certificate Exh.D.A. the age of Asghar accused at the time of occurrence was 15 years and three months. This would mean that the age of accused is not disputed. The learned Public Prosecutor relying on P L D 1959 Lahore 124 Sher Muhammad v. The State argued that the offence under section 302 P.P.C. was fully proved against the accused and he be accordingly sentenced for the murder of Abbas Ali. Learned counsel for the accused relying on (I.L.R. 3 Pat. 410). Shambhu Khatri v. King Emperor argued that offence under section 302 P.P.C. is not proved against the accused. I have considered this question. It is in evidence of P.W.1 Dr. Manzoor Hussain that there was a tear 1 c. m. x 2 c. m. x muscle deep at the level of 12 O'clock in the rectum. At the time of examination. Abbas Ali felt difficulty in walking and sitting. He was restless and confused. He was not bleeding at that time, though the medical officer noted evidence of bleeding .per rectum. P.W.2 Dr. Muhammad‑ Naseer Rana noted same tear in the rectum with ruptured under lying vessels. In the medical examination or during post‑mortem examination the Medical Officer did not notice rupture of major blood vessels; vain or artery. He did not note any cut in any of these vital parts. The extent of bleeding is also not known in the instant case. The complainant party also did not consider the injury of serious nature, on account of which they did not get Abbas Ali admitted in hospital in spite of advice by the Medical Officer. It, therefore, seems that Abbas Ali died due to shock and on account of absence' of proper treatment. He undoubtedly, got shock due to carnal intercourse with him against the order of nature. The accused is aged about 15/16 years. He apparently took Abbas Ali deceased in his room to have sodomy with him. He never intended at that time to commit his murder. As such, at its best, Muhammad Asghar accused could, in view of age of Abbas Ali, be burdened with the knowledge that his act was likely to cause death. I have gone through the judgment in the case of Sher Muhammad v. The State cited by learned Public Prosecutor in my view this judgment is not applicable to facts of this case. In the case of Sher Muhammad the accused had seized the deceased, and they threw him on the ground. Two of the accused held the deceased fast to the ground with his face downward while the remaining three accused, turn by turn, thrust their dangs into the anus of the deceased resulting in his death. The facts of the cited judgment are totally different than the case in hand. I have gone through the judgment in case of Shambhu Khatri cited on behalf of the accused. The facts of this case were that Shambhu Khatri accused aged about 18 years committed rape with a 12 years old girl rupturing her vagina. She died due to shock. It was held that as the death is not natural consequence to be expected from a simple sexual offence, the accused was not guilty of culpable homicide not amounted to murder under section 304 PPC. As stated above initially Muhammad Asghar accused did not have any intention to murder Abbas Ali. He did not commit sodomy with the deceased to murder him. It was an act of delinquency. It was stated by Dr. Manzoor Hussain P.W.1 in cross‑examination that "anus is' distencible orifice and two fingers can be inserted even in a child." He further admitted "that full penetration in anus is not possible". This evidence and the circumstances of the case clearly prove that Muhammad Asghar accused had no intention to murder Abbas Ali by carnal intercourse against the order of nature. He can only be burdened with knowledge that his act was likely to cause death. In view of these circumstances I find that he was not guilty of, the charge under section 302, P.P.C. and instead could only be, punished under section 304‑II, P.P. C.

11. In view of the above discussion I hold Muhammad Asghar accused guilty of the offences under sections 377 and 304‑II, P.P.C. Muhammad Asghar is accordingly sentenced to 10 years' R.I. and fine of Rs.10,000 or in default 2 years' R.I. under section 377 P.P.C. He is sentenced to 10 years' R.I. and fine of Rs.10,000 or in default 2 years' R.I. under section 304‑II, P.P.C. The sentence of imprisonment will run concurrently. Out of the total fine of Rs.20,000 a sum of Rs.15,000 will be paid as compensation to Abdul Aziz P.W. father of Abbas Ali deceased as compensation. In the circumstances of this case I am not inclined to allow benefit of section 382‑B, Cr.P.C. to the accused. S.A./S‑119/L Accused convicted.