1999 P Cr (PLP)

To prove its case prosecution examined 6 witnesses. Appellant also examined himself on oath and 3 other witnesses in his defence.

3. The learned counsel for appellant has contended that an unexplained delay of 4 days in report is fatal to the case of prosecution; that incident was in the knowledge of the complainant from the very first day yet he took four days to report; that the first doctor who had examined the victim has not been produced; that all the witnesses of prosecution are related inter se although independent witnesses were available; that a hard floor was used for sodomy, yet no mark of violence was found on the body of the victim that the evidence indicated that the place of occurrence has been shifted; that Nishtar Park is an open place where all around people are living and it is a midday incident which is not probable in the circumstances of the case; that this is a case of doubt and its benefit must be extended to other appellant. The learned Advocate‑General representing State has clearly stated at Bar that the delay in report in the present case cannot be explained. He has not supported the impugned judgment and has conceded for acquittal of the appellant.

4. The learned Advocate‑General for the Province of Sindh has correctly conceded that this is not the type of case in which an explained delay of 4 days and 10‑1 /2 hours in reporting a heinous crime is pardonable or that it does no, create doubts in the story of prosecution. This is because the first reaction of a father, who finds his son of 12/13 years of age in such suffering condition that from his swollen rectum blood was oozing arid Shalwar was found stained with blood, shall be to report the matter immediately and get him referred for medical examination through police. What he did is what he is deposing as P.W.I and that is: I, therefore, took my son to hospital and got his treatment in private hospital." During cross he is replying:

"When I took my son to private hospital the doctor assumed me that it is not a serious matter. " Haseen‑ud‑Din (P.W.3) the victim is deposing:‑‑ "After three days of the incident I had informed the matter to my brother namely Arif. Blood continuously oozing from my anus, as such I was taken to hospital." From the perusal of record, the name and address of that first doctor who examined the victim is not transpiring. This conduct of withholding the evidence of this very important witness which could be and is not produced leads me to presume the existence of some fact which I think likely to have happened, regard being had to the common course of natural events and human conduct and that is that had this witness been produced he would have gone unfavourable to the prosecution who has withheld trim. While relying on the provisions of clause (g) to Article 129 of the Qanoon‑e‑Shahadat Order, 1984 and the attendant circumstances of the prosecution case I hold that this delay is fatal to the prosecution as it creates strong doubts.

5. Muhammad Arif (P.W.5) has deposed that they had come to know about the incident on the following day, but Jameel‑ud‑Din (P. W.1), the complainant has deposed that after 3/4 days his son informed P.W. Arif that accused Rahim Bux had committed sodomy with him. This contradiction between the two most important witnesses is substantially setting aside the version of the prosecution as in fact all were in the knowledge of such an act having been committed by someone upon the victim from the very first day specially when the victim was also taken to some private doctor as well.

6. In this case the appellant could have been convicted with the offence or the conviction could have been upheld, had the Investigating Officer been responsible enough to have procured the semen of the offender, Shalwar and pant of the victim and would have referred it to Serologist for grouping and matching. This slackness on his part has destroyed an important piece of evidence.

7. In view of these circumstances coupled with other facts benefit of doubt was given to the appellant and the impugned judgment was set aside by my short order. These are the reasons for the said order. Appeal is allowed. H.B.T./53/FSC Appeal allowed.