1985 P Cr (PLP)

Malik Rab Nawaz Noon for Appellant. Muhammad Aslam Uns for the State. Date of hearing: 21st February, 1984. The judgment will dispose of the order of the learned Additional Sessions Judge, Rawalpindi dated 27‑11‑1983 whereby he convicted Muhammad Sharif resident of House No. 159/D.K. Dhoke Nashrnirian, Tehsil and District Rawalpindi under section 12 of Ordinance VII of 1979 and section 377, P.P.C. and sentenced him to 10 years' R. I. plus 20 stripes and a fine of Rs. 3,000 or in default whereof to further undergo two years' R.I. under the former section and to 10 years' R.I. and a fine of Rs. 3,000 or in default whereof to undergo further two years' R.I. under the latter section. Out of the fine if recovered a sum of Rs. 3,000 was ordered to be paid to Mahmood P.W. as compensation.

2. The facts in brief are that on 18‑1‑1983 at 12‑00 noon Rehmat Din complainant went to Police Post Sadiq Abad and made a report alleging therein that he had taken up residence alongwith his family at Dhoke Kashmirian, Rawalpindi about 17 years back. His eldest son Azram Khan works as Labourer in District Bannu whereby his younger son Mahmood aged 12/13 years works as an apprentice with one Moazzam Din Tailor Master. Yesterday at about 8 in the morning his son Mahmood left his house to attend to his work at the shop of Moazzam Din Tailor situated at Malik Abad but he did not return at night. This made him and Muhammad Ishaq P.W. to search Mahmood. Today at 10 a.m. when they reached near an uninhabited bungalow situated at Chowk Dhoke Kashmirian, in the process of search, they heard alarm of Mahmood emanating from the compound of the said bungalow. On entering the said bungalow they met Mahmood who told them that yesterday at 5‑30 p.m. when he was on his way back home from the shop of Moazzam Din, Muhammad Sharif accused came to Chowk Dhoke Kashmirian caught hold of him, gagged his mouth with a Muffler and took him inside the bungalow where his Shalwar was taken off and was subjected to sodomy by the accused in the verandah of the said bungalow. As a result of the unnatural offence he (Mahmood) lost his consciousness and, therefore, could not move. The complainant and his companion Muhammad Ishaq helped Mahmood in wearing Shalwar and was taken to police for making a report.

3. Kafayat Hussain Shah A.S.I. Police Post, Sadiq Abad P.W.7 took down the above report by way of a Marasella correctly and sent the same of the Police Station Civil Lines, where a formal F.I.R. Exh. P. E/1 was drawn by Sarfraz Khan A. S. I. and case was registered against Muhammad Sharif accused. Kafayat Hussain Shah P.W. prepared the injury statement of Mahmood which is Exh. P.J. and sent him to the hospital for medical examination under the escort of Muhammad Anwar F.C. On return from the hospital Muhammad Anwar brought a sealed phial, a sealed envelope and the medico‑legal report which were taken over by Kafayat Hussain Shah P.W. vide recovery Memo. Exh. P.D. The witness in hand then inspected the place of occurence in the presence of P. Ws. and prepared its site plan Exh. P. K. with all marginal notes correctly. He also took into possession the Muffler from Mahmood vide recovery Memo. Exh. P.F. and also secured his Shalwar P.1 which was made into a sealed parcel Memo. Exh. P. G. Kafayat Hussain Shah P.W. then entrusted all the sealed parcels etc. to Muhammad Sarwar Moharrir Constable. The statement of the P.Ws. were recorded and Muhammad Sharif accused was arrested on 19‑1‑1983 and was not medically examined for his potency. While in police custody the accused led to the recovery of cloth P.2 from the eastern wall of the bungalow which was taken over vide Memo. Exh. P.H. made into a sealed parcel and handed over to Muhammad Sarwar. Muhammad Sarwar (P.W.2) on his turn took all the parcels and kept them in the Malkhana intact and then on 28‑1‑1983 handed them over to Muhammad Anwar F.C. who on the same day took them to the Chemical Examiner Office, Lahore for their chemical examination.

4. After the completion of the investigation the cases was put in the Court where the prosecution produced in all 7 witnesses. The accused 'now appellant in his statement under section 342, Cr.P.C. has denied the charges under both the heads. He also denied the recovery of cloth Exh. P.2 on his pointation and in the end stated that about six months prior to the occurrence he had a quarrel with eldest son of Rehmat Din P.W. and had also abused Rehmat Din and since then the parties are on inimical terms, therefore, he has been involved in the present case. He is absolutely innocent. The trial however, resulted in the impugned judgment, hence the presence appeal.

5. The learned counsel for the parties heard and the record perused. In this case for offence under section 12 of the Ordinance VII of 1979 and section 337, P.P.C. we have on the record a solitary statement of Mahmood P.W. On close examination of the said statement hardly any material has been found to cloth the appellant for kidnapping Mahmood P.W. The victim of the alleged crime, though is lad of about 12/13 years of age but the manner in which the alleged abduction is described is open to extreme doubt. It is admitted by Mahmood P.W. that he was picked up by the accused from the Chowk of Dhoke Kashmirian, his mouth was gagged and was taken to the uninhabited bungalow situated at about 40/50 yards from the, said Chowk. It was further admitted that this Chowk is frequented by the people and there are number of shops in front of the said bungalow, situated at a distance of 20 yards from the main Gate of the said bungalow. Kafayat Hussain Shah (P.W.7) too has also supported Mahmood P.W. to a large extent in respect of the location of the bungalow wher6 the alleged occurrence had taken place. He admitted at the trial that there are about 3/4 shops on both sides of the bungalow. Bazar Dhoke Kashmirian starts at a distance of 20 yards from the bungalow. The shops are at a distance of about 7/8 Karams from the electric pole. There is no shop in front of the gate of the bungalow. The firewood stall is on the east‑southern side of the bungalow situated at a distance of 8 Karams from the main gate of the bungalow. Similarly Rehmat Din also admitted that the place from where his son was picked up is situated in the midst of bazar and the bungalow where his son was taken is situated at a distance of about 150 or 200 yards from his house. Muhammad Ishaq (P.W.6) on his part admitted that there are Karyana shop, Barber shops, Cycle repair and firewood shops at a distance of 20 Karams from the said bungalow. Chowk Kashmirian is at a distance of 100 yards from the said bungalow and the electric pole is in the middle of Chowk and that his house too is at a distance of 150 or 200 yards from the said bungalow. He further admitted that in the firewood stall a family of the Pathan also lives. The situation of the place of occurrence which has been given by these prosecution witnesses leads one to an irresistible conclusion that the kidnapping of Mahmood P.W. from such a place at an early hour of the evening is et all a made up story because nobody would dare to pick up a lad of about 12/13 years from the place which is situated at such a busy locality. Kafayat Hussain Shah P. W. also admitted at the trial that he did not join in the investigation any of the shopkeepers. No eye‑witness belonging to or near about the place o occurrence had appeared before him. This indicates that the allegation of the kidnapping is a mere fabrication otherwise the people of the locality in the first instance would have frustrated the act of the appellant in kidnapping Mahmood and secondly they would have joined the investigation in support of the prosecution. I, therefore, hold that the prosecution has failed to bring home the charge to the appellant under section 12 of the Ordinance VII of 1979, he is thus acquitted of the same.

6. As far the offence under section 377, P.P.C. is concerned, we have on record the statement of Mahmood P.W. read with the statement of Dr. Ibrar Ahmad P.W.1 and the report of the Chemical Examiner which is Exh. P.L. Mahmood P.W. has directly charged the appellant for subjecting him to unnatural offence and deposed at the trial that he was so subjected to in the verandah of the bungalow. The floor of the verandah was Pacca and during the commission of unnatural intercourse he became unconscious and remained so the whole night. He also admitted that his Shalwar was stained with blood which had been shown to the Thanedar and that he had also shown blood oozing from his anus to the Thanedar and the Doctor. He also admitted that he had received injuries in the process of act of sodomy as the floor of the verandah was Pacca and that he had shown the injury to the Doctor.

7. As far the allegation of Mahmood P.W. that his anus oozed blood and that his Shalwar was stained with blood has not at all been supported either by the Doctor or by the I.0., in that the Doctor deposed on the trial that there was no tear or laceration on the carnal region, and that no fresh injury was found. He is however, absolutely silent about the fact that the Shalwar of Mahmood P.W. was stained with blood or that blood was oozing from his anus. The I. O. admitted at the trial that he did not notice any blood on the Shalwar of Mahmood P.W. Neither did not observe any injury on his person nor was he shown any injury according to the statement of Doctor Ibrar Ahmad P.W.1 Mahmood is a boy of weak body. If a lad of a weak physique is subjected to unnatural offence by a young man by force, he would receive a large number of injuries not only on his private parts but of the other parts of the body too because the act was allegedly committed on a Pacca floor, but as has been stated earlier the Doctor did not find any tear or laceration or for that matter any fresh injery on the anal region of Mahmood. Though some slight redness was found on both the knee‑caps of Mahmood P.W. but it could be self‑inflicted. Mahmood P.W. deposed that he remained unconscious in the verandah throughout the night. He is a lad of weak physique and it was a month of January. Had he spent the night in such a situation he would have attacked of pneumonia or other serious disease but none was complained of. The report of the Chemical Examiner Exh. P.1, is also of no assistance to the prosecution because it does carry any opinion about the annal swabs which was sent for detection of the semen to, the Chemical Examiner. Rest of his opinion, therefore, loses its value, I, therefore, hold that the whole case has been concocted against they appellant because of the enmity.

7. In view of the above, the appeal of Muhammad Sharif is accepted and his conviction under section 377, P.P.C. is also set aside. He has" already been ordered to be released forthwith if not required in any other case through my short order, dated 21‑2‑1984. M. Y. H. Appeal accepted.