2016 PLP 178 (YLRN)

S. 377

Qanun-e-Shahadat (10 of 1984), Art.19

Sodomy

Appreciation of evidence

Sentence, reduction in

Offence had been committed in a ditch of graveyard of the locality

Victim child had narrated the incident, abruptly and spontaneously to his mother, leaving no room of fabrication and false implication of the accused

Nothing was on the record to show any previous ill-will of the complainant with accused

Father or mother, would not like to stigmatize their innocent child for entire life, by levelling false charge of sodomy implicating innocent person, with whom they had no grudge or animosity

Nothing was on record to depict that mother of the victim before narrating the occurrence to her husband had consulted anybody to fabricate the incident; it was a case which fully attracted the rule of 'res gestae'

Evidence of father of the child being fully protected by Art.19 of the Qanun-e-Shahadat, 1984, and under the principle of 'res gestae', his statement could safely be taken into consideration as an admissible evidence against accused

Statement of father got corroboration from medical evidence

Negative report of Forensic Science Laboratory qua anal swab of the victim, would not damage the prosecution case, because swab was taken after 24 hours of the occurrence

Mere non-production of victim child for evidence, would not damage the prosecution case, as by virtue of non-production of minor, accused had not been prejudiced

Prosecution having fully established the guilt of accused through cogent and confidence inspiring evidence, Trial Court was justified to hold the accused guilty of the offence

Accused was a juvenile at the time of incident aged 15/16 years

Nothing was available on record to show previous involvement of accused in identical offences

Accused, being a first time offender, taking lenient view maintaining his conviction under S.377, P.P.C., his sentence was reduced from 3 years' R.I. to 1 year simple imprisonment. [Paras. 10, 11, 12, 13, 14 and 15 of the judgment]

Defined and explained. The res gestae rule is that where a remark is made spontaneously and concurrently and has been defined as a matter incidental to main fact and explanatory of it, including acts and word which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. "Res gestae" includes everything that may be fairly considered as an incident of even under consideration and it carries with it inherently a degree of credibility and would be admissible because of its spontaneous nature. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. [Para. 11 of the judgment] Syed Sikandar Hayat Shah, Asstt. A.G. for the State. JUDGMENT ASSADULLAH KHAN CHAMKANI, J.

This appeal is directed against the judgment dated 22.12.2012, passed by learned Additional Sessions Judge-XII/Judge Juvenile Court, Peshawar, whereby appellant Qayyum Ullah, has been convicted under section 377, P.P.C. and sentenced to undergo 03 years rigorous imprisonment and to pay a fine of Rs.10,000/- or in default thereof, to undergo 02 months' S.I. further. Benefit of section 382-B, Cr.P.C. has been extended to him.

2. The background of the instant case is that on 03.06.2010 at 1930 hours, complainant Arab Khan (PW.3), in company of his minor son Abid Ullah, reported to local police that on the fateful day, on his return home from labour work, his wife told him about forcible commission of sodomy upon his minor son Abid Ullah by one Qayyum (appellant-convict herein), by taking the minor victim to the crime venue on some pretext, when he was being playing in the Mohallah. Report of the complainant was reduced into writing in the shape of murasila Exh.PW.3/1 by Saif ur Rehman SI (PW.5), on the basis of which, FIR (Exh.PA) No.714 dated 3.06.2010, under section 377, P.P.C. read with section 12, Offence of Zina (Enforcement of Hudood), Ordinance, 1979, Police Station Agha Mir Jan Shah Peshawar was registered.

3. Dr. Muhammad Arshad Hussain (PW.9) examined minor victim Abid Ullah on 04.06.2010 at 9.15 a.m. and found multiple bruises around his perianel region from 3 O'clock to 12 O'clock position and abrasion at his anal canal at 7 and 11 O'clock position. He observed digital examination to be painful. According to his opinion, injuries in the anal region of the victim were consistent with the act of sodomy. Similarly, accused appellant Abdul Qayyum was examined by Dr. Yousaf (PW.8), who in light of dental data, X-ray elbow joint, wrist joint etc, declared his age to be 14 to 15 years. He further observed him mature and held that there is nothing to suggest that he cannot perform sexual act (sodomy). His report to this effect is Exh.PW.8/1.

4. Zia Ullah SI (PW.7) proceeded to the spot and prepared site plan Exh.PW.7/1, recorded statements of PWs under section 161, Cr.P.C. vide recovery memo Exh.PW.6/1, he took into possession garments of the accused. He also prepared pointation memo Exh.PW.7/2 on the pointation of accused, produced the victim and accused for medical examination, placed on file FSL reports regarding garments and anal Swabs of the victim and on completion of investigation he handed over case file to SHO, who submitted challan against the accused/appellant before the learned Trial Court.

5. Appellant was summoned by the learned Trial Court and formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court after hearing both the sides, convicted and sentenced the appellant, as mentioned above, hence, this appeal.

6. Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated in the case; that neither complainant nor anybody else has come forward to furnish the ocular account of the incident while the alleged victim child being unable to understand the proceedings and to answer the questions of the Trial Court has not been examined, therefore, the version put forth by his father at his alleged narration, cannot be believed and relied upon; that medical evidence does not support the prosecution version. He contended that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence, therefore, the impugned judgment being against the principle of appreciation of evidence is liable to be reversed.

7. Saida Jan grandfather of the victim was afforded opportunity to engage counsel, but he showed his inability to do so being destitute and stated at the bar that he would rely on the arguments of learned A.A.G. for the State.

8. Learned A.A.G. contended that albeit, minor victim has not been examined, but the testimony of his father/complainant can be taken into consideration under the rule/principle of res gestae as he has furnished the spontaneous narration of the victim qua commission of the offence and his statement get corroboration from medical evidence and FSL report qua garments of the victim, stained with semen. He contended that defence has miserably failed to create any dent in the prosecution evidence benefit of which could be extended to the appellant. He went on to say that impugned judgment of the Trial Court, being well reasoned and based on proper appreciation of evidence, is not open to any interference by this court. He sought dismissal of the appeal.

9. I have considered the respective submissions of both the sides and perused the record with their able assistance.

10. True that there is no eye-witness of this unfortunate and shameful episode, but suffice it to say that such like offences are never committed in view of the general public, rather the culprits of offences of a like nature, choose places secluded and out of the view of the public. In this case, the offence has been committed in a ditch of graveyard of the locality. Immediately, after the incident, the minor victim Abid Ullah aged 5/6 years, narrated the incident to his mother in the house, who further narrated the same to his father, on his arrival to home from his routine labour work. The victim child has narrated the incident so abruptly and spontaneously to his mother, leaving no room of fabrication and false implication of the appellant. Nothing is on the record to show any previous ill will of the complainant with the appellant. Moreso, no father or mother would like to stigmatize their innocent child for entire life, by leveling false charge of sodomy implicating innocent person with whom they have no grudge or animosity.

11. Though, mother of the victim child has neither reported the incident nor has she been examined in the witness box, but I am mindful of the fact that in our society, particularly in pathan society, where female are dominated under male, cannot take a step of its own to visit Police Station, without bringing the matter first in knowledge of their male members. Situation in the instant case is the same because in his initial report, complainant has categorically stated that on the fateful day he was out of his house in connection with his labour, and on his return, his wife narrated the incident to him, which he further narrated to the Police. There is nothing on the record to show that any other male relative of the complainant resides in his house. No shred of evidence is available on the record to depict that mother of the victim before narrating the occurrence to her husband has consulted with anybody to fabricate the incident. Rather, she remained in her house with her minor victim child and on arrival of her husband, narrated the incident to him. In my humble view, it is a case which fully attracts the rule of res gestae. The res gestae rule is that where a remark is made spontaneously and concurrently and has been defined as a matter incidental to main fact and explanatory of it, including acts and word which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. "Res gestae" includes everything that may be fairly considered as an incident of even under consideration and it carries with it inherently a degree of credibility and would be admissible because of its spontaneous nature. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. In the instant case, the minor child of 5/6 years age has so immediately narrated the incident to his mother and she to her husband, that in such promptitude even a grown up man would not have a sufficient time to conjure the facts motivated by any kind of malice. Therefore, I am clear in my mind that the evidence of father of the child is fully protected by Article 19 of the Qanun-e-Shahadat Order, 1984 and under the principle of res gestae, his statement can safely be taken into consideration as an admissible evidence against the appellant.

12. Statement of Arab Gul (victim's father) gets corroboration from medical evidence. Dr. Muhammad Arshad Hussain (PW.9), who examined the minor victim, has categorically stated in his statement that injuries in the anal region of the victim were consistent with the act of sodomy. The negative report of the FSL qua anal swab of the victim, would not damage the prosecution case because the incident took place on 03.06.2010 while the victim's anal swab was taken on 04.06.2010, so in this interval of 24 hours, the victim would definitely have passed stools, diminishing the possibility of presence of semen on his anal area. The multiple bruises around his perianel region and abrasions at his anal canal, as observed by the medical officer, are sufficient to prove commission of sodomy upon the victim. The seminal stains trouser of the victim was sent to the FSL for chemical analysis report whereof Exh.PW.7/7 is in positive, which further lends support to the prosecution case. It is also established from the statement of Dr. Yousaf (PW.8), who examined appellant, that he being mature was capable to perform sexual act. All these material pieces of evidence corroborating the prosecution version are sufficient to reach the neck of the appellant.

13. Mere non-production of victim child in the witness box would not damage the prosecution case as he was produced before the learned Trial court, where he was confronted with certain questions keeping in view his minority, which he could not reply rationally and the learned Trial Judge, who had the privilege of observing the child with her own eyes, was satisfied that he could not understand the proceeding, as he had not developed the mental maturity for the purpose. By virtue of non-production of the minor child, the appellant has not been prejudiced, because if the prosecution sought to manufacture artificial evidence against the appellant, then it would have been more conductive for the prosecution to have produced the minor as a witness by tutoring him.

14. For the forgoing reasons, I am of the firm view that prosecution has fully established the guilt of the appellant through cogent and confidence inspiring evidence, in light whereof, the learned Trial Court was justified to hold the appellant guilty of the offence. Admittedly, appellant was a juvenile at the time of incicednt aged about 15/16 years. There is nothing in black and white to show his previous involvement in identical offences, therefore, he being a first offender, I while taking lenient view against him, maintain his conviction under section 377, P.P.C., however, reduce his sentence from 03 years R.I. to one year simple imprisonment. The sentence of fine Rs.10,000/- or in default thereof to undergo 02 months' S.I. shall remain intact. Similarly, benefit of section 382-B, Cr.P.C. extended to the appellant by learned Trial Court shall also remain intact in his favour.

15. With the above modification in the sentence of the appellant-convict, this appeal is disposed of accordingly. HBT/487/P Sentence reduced.