1985 PLP 1822 (SCMR)

(2) A laceration in the anus at 12 O' Clock position." According to‑ the doctor "sodomy had been performed with the injured." The plea of the respondents was that they had been falsely implicated and that they did not commit any offence at all. They explained, however, the case against them in the following words:‑ "Shamas Saeed Ahmad P.W. used to tease girls who used to come to Pakka outlets of the canal for washing their clothes and to take bath. On their protest some boys of the nearby Wandhas one day caught hold of Shamas Saeed Ahmad Khan P.W. just to teach him a lesson and inserted a stick in his anus. Shamas Saeed Ahmad Khan P.W. did not know the names of any of these boys. He, however, knew my name as well as of my, co‑accused and falsely implicated us in this case in collusion with the police." They produced in defence two witnesses Amanullah (D.W. 1) a school teacher resident of a Dera near the railway station Samandiwala. The other was Muhammad Hayat (D.W.2) a Baildar on duty on the canal bank in the vicinity. They supported the defence version. The prosecutor was in two minds with regard to the inclusion of charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter referred to as the Ordinance) whereupon the complainant filed directly a complaint in the Court of Sessions Judge under that provision of law. The complaint was dismissed as it was not filed before the Magistrate and hail not been received in the Sessions Court through the Magistrate. The charge under section 12 of the Ordinance was, however, added to the charge under section 377, P.P.C. The trial Judge also inspected the site with a view to appreciate the evidence brought on the record. There is no separate inspection note on the record but in the judgment fairly lucid account of the topography of the place and its use has been provided. The following observations are relevant at this stage:‑ "I have been myself to the spot in the presence of the counsel for the parties and men from either sides. I observed one out‑let flowing out on the southern side and another from the northern side from Lift Irrigation Scheme Canal. I did not observe any woman or any other person already washing any clothes or taking any bath at the aforesaid outlet I did not observe any specific Khad of very low depression. The place where the complainant was allegedly subject to sodomy was, however, much lower than the bank of the canal where he was initially hauled up. It was, however, not an outright exposed place." The trial Court found that the witnesses were in no manner interested in levelling a false charge that the delay in the F . I . R. had been properly explained, the eye‑witness account got due support from the medical evidence and the chemical examination report showed that the Shalwar of the complainant was stained with semen. Coupled with the abscondence of the respondents these factors proved the prosecution case under section 12 of the Ordinance and under section 377, P.P.C. For their conviction under section 12 of the Ordinance they were sentenced to ten years, R.I. and a fine of Rs.5,000 or in default one year's R.I. and in addition 10 stripes. For the offence under section 377, P.P.C. they were sentenced to 10 year's R.1 and a fine of Rs.5,000 or in default one year's R.I. The sentence of rigorous imprisonment was ordered to run concurrently. The entire amount of fine, if recovered, was to be paid as compensation to Shamas Saeed, the complainant. On appeals filed by the respondents, the Federal Shariat Court reappraised the entire evidence on record. The learned Judge of the Federal Shariat Court held that though it was a daylight occurrence no witness from, the vicinity appeared in support of the prosecution case. The Khad where sodomy was committed was not shown in the site plan and the trial Judge on his local inspection also did not notice Khad of very low depression. It was also held that the allegation of the complainant that he was subjected to carnal intercourse on a hard ground has not been supported by the medical evidence. It was further held that if two young persons like the respondents had forcibly committed sodomy on him his anus would have been extensively damaged and he would have immensely bled and his Shalwar gore with blood. According to the learned Judge the admission of the doctor at the trial "completely demolished the case of the prosecution." The report of the Chemical Examiner was rejected on the ground that it was not signed by the chemical examiner but was an attested copy of the report of the Chemical Examiner. The learned counsel for the appellant contended that once it was found that the witnesses were not inimical and there were visible signs of sodomy having been committed on the complainant and the defence version was palpably incorrect, the conviction of the respondents should have followed. The doctor's opinion with regard to injuries, according to the learned counsel for the appellant, was misread and misinterpreted to exclude the act of sodomy having been committed. It is also against the medical report that the judge has formed the opinion that if two persons like the respondents had committed sodomy, his Shalwar would have been full of blood and the injuries noted on the person of the complainant would have been numerous and grave than were found. The learned counsel for the respondents on the other hand contended that there was no' misreading of evidence by the appellate Court and that no provision or principle of law in appraising the evidence had been violated. Certain principles of law relating to appreciation of evidence in criminal trial are now firmly and well‑entrenched. The first is that evidence should not be considered in isolation as so many bits of evidence but the whole of it together in order to see their cumulative effect Razia Begum v. Hidayat Ali P L D 1976 S C

44. The second is that expert medical evidence is in the nature of confirmatory or explanatory of direct or other circumstantial evidence Yakoob Shah v. The State P L D 1976 S C

53. The third is that there is general apathy and lack of civic duty accounting for non‑appearance of entirely unconcerned but natural witnesses to a serious crime (ibid). It appears to us that all these principles were unfortunately not kept in view by the Federal Shariat Court and in addition there was manifestly misreading of evidence. Hayat Muhammad P.W. had given a reason accounting for his presence on a thoroughfare. No defect was found in it. It was not even analysed for its credit. His presence was nevertheless doubted by observing as follows:‑ "It is a daylight occurrence and the place where the act of the alleged sodomy was enacted is not an isolated place, but none from the adjoining area was attracted to his hue and cry excepting his maternal‑uncle" .. the manner in which he has conducted himself is such that his presence at the spot has become extremely doubtful, thus he cannot be relied upon." The Sessions Judge on local inspection reported that ‑‑ "the place where the complainant was allegedly subjected to sodomy was, however, much lower than the bank of the canal where he was initially hauled up." The complainant's version that he was taken to the Khad for the commission of the act was disbelieved for the reason that there was no "specific Khad or very low depression", and none had seen a "Khad" and "Khad" was not shown in the site plan. The offensive act was committed on the ground adjoining a water channel. The victim had been placed in terrorem and there is indication that he did not physically resist the two at any stage. The appellate Court ignoring these facts held:‑ "Had he been subjected to carnal intercourse on hard ground, in the first instance as alleged by him, he would have received a number of injuries on his both knees and ankles." The conclusion that had "the complainant been subjected to carnal intercourse by two young men by force, his anus would have been extensively damaged and he would have immensely bled and his Shalwar gore with blood" is to say the least not supported by medical evidence and it would not be proper to hold that the admissions of the doctor "at the trial had completely demolished the case of the prosecution". What the Doctor stated was:‑ "The damage as done in this case could not be more than the one observed even if the subject of assault was subjected to carnal intercourse by the two accused now present in Court. I have so stated keeping in view the ages of all the three involved. The possibility of more damage in the circumstances also cannot be entirely ruled out." The Chemical Examiner's report was kept out of consideration because it was not "signed by the Chemical Examiner but is an attested copy of the report signed by his assistant." The fact was that it was an attested copy of the report signed by the Chemical Examiner, the attestation having been done by the Assistant Chemical Examiner. The original appeared to have been misplaced. The attested copy was receivable in evidence and had been so received. We, therefore, find that there has been grave miscarriage of justice in recording the acquittal of the respondents. Their conviction under section 377, P.P.C. by the trial Court was legal and proper. As regards the other charge, criminal liability under section 12 of the Ordinance, like other offences of the category, depends on the existence of the intention or reasonable knowledge of the person accused of the crime. If the intention be to kidnap or abduct for the specified purpose, or kidnapping or abduction is coupled with the reasonable knowledge of the likelihood of the specified purpose then the offence will definitely fall under section 12 of the Ordinance. If, however, the intention be to commit the very act indicated as the purpose with no intention to commit kidnapping or abduction then merely because the victim was moved a few paces in terrorem or shoved along, for safe and unobtrusive achievement of the intended purpose will not make an additional offence under section 12 of the Ordinance. The evidence in this case indicates that abduction was neither intended nor was the object of the crime. The intention was to commit sodomy and sodomy alone. At the elevate site of a railway crossing where the respondents encountered the complainant, safe and unobtrusive achievement of the intended object would not have been possible. So they forced the complainant to move a few paces, according to one estimate about eighteen paces, for undisturbed performance of the intended act in a low lying area not exposed to the metalled road, the canal bank, or the level crossing. In such a situation offence under section 12 of the Ordinance is not made out. The result is that this appeal is allowed. The acquittal of respondents is set aside. Their conviction under section 377, P.P.C. is restored. They are both sentenced to 3 year's R.I., a fine of Rs.20,000 each or in default R.I. for two years. Half the fine realized from each to be paid as compensation to the appellant. They shall have the benefit of section 382‑B, Cr. P.C. in computing the period of substantive imprisonment. M . I . Appeal accepted.