1989 P Cr (PLP)

Dr. Zafar Iqbal Gondal (P. W. 1.) had medically examined Muhammad Asjad P.W. at 10‑00 a.m. on 7‑11‑1987 and had found the following injuries on his person:‑ (1) There is abrasion measuring 4 c.m. x 2 c.m. on the left knee joint. (2) Contusion mark 3‑1/2 c.m. x 1 c.m. on the right knee joint.; (3) Contusion mark 3 c.m. x 1/2 c.m. on the left elbow. (4) Contusion mark on the right cheek. (5) Redness was present around the anal margin, complains of pain on taking of swabs. He took two anal swabs and sent them for chemical examination for the detection of semen. Exh. PA. is the carbon copy of his medico‑legal report. On receipt of medico‑legal report on 22‑11‑1987 which was to the effect that the swabs were stained with semen, the doctor gave his opinion that Muhammad Asjad P.W. had been `subjected to sodomy.

7. The doctor also examined the appellants and their co‑accused Aurangzeb and gave his opinion that they were physically fit to commit the act of sodomy.

8. In cross‑examination, the doctor said that there was no blood or swelling on the anal margin of Muhammad Asjad P.W; he had reached the hospital walking and had not complained of any pain; he had also not complained of pair while walking. He was of the opinion that sphincter muscle may be loose and presence of swelling and bleeding is not must in every case of commission of sodomy. The doctor, however, did not say that sphincter muscle of Muhammad Asjad P.W. was loose nor did he give any reason how there was no swelling or bleeding,

9. All the appellants denied having had anything to do with the commission of the offences. They also gave evidence on oath to support of their innocence. In his statement under section 342, Cr. P. C. Khadim Hussain, appellant, said: "In 1985 1 paid Rs. 40,000 to one Abdul Rashid for securing, an employment abroad who neither made any arrangement for employment abroad nor did he return the money. At my request for the return of my money Abdul Rashid maltreated and threatened me with dire consequences. At the instance of said Abdul Rashid, the police of Police Station Kharian raided my house and misbehaved with the inmates of the house particularly my sister. When I intervened the police asked me not to demand the return of money from one Abdul Rashid failing which he will be dealt with in the same manner. My father sent telegram to D.I: G., I. ‑G., Police and also to the President and Prime Minister of Pakistan complaining against the high‑handedness of the police. Being aggrieved of the said telegram, the local police falsely implicated me in a number of cases. Since then I am an easy prey to the local police. On 28‑7‑1987, I was arrested by the present S.H.O. My father filed two writ petitions against the S.H.O., before the Lahore High Court, Lahore. Upon this, the present S.H.O. was annoyed and implicated me in the present case alongwith other cases after the filing of the said writ petitions. He is also annoyed because my father filed a petition for contempt of Court against the present S.H.O., before the Lahore High Court, Lahore. The P. Ws. of this case have deposed against me at the behest of Malik Muhammad Safdar, S.H.O. Police Station, Kharian." 10.?????? He tendered in evidence copies of Writ Petition No. 4282 of 1987, Writ Petition No. 476 of 1987 and Criminal Original No. 46 of 1988, Exhs. D.C., D.D. and D.E. respectively.

11. It will be sufficient to refer to one of the writ petitions dated 3‑9‑1987. Muhammad Sharif, father of Khadim Hussain, appellant, instituted that. By that writ petition, grievance was made that Khadim Hussain, appellant, had been, on account of his dispute with the above‑mentioned Abdul Rashid, involved in a number of false cases; that he was illegally detained by the S.H.O. and a prayer was made that he should be directed to be produced before the Illaqa Magistrate. It was also prayed that the detenu Khadim Hussain should be produced before the High Court.

12. In short, the defence of Khadim Hussain, appellant, was that on account of his dispute with Abdul Rashid, he had fallen foul of the S.H.O. and therefore, he had been falsely implicated in a number of cases.

13. In the view of the learned trial Judge, the three witnesses Muhammad Asjad, Muhammad Nazir and Muhammad Sarwar had rendered consistent, cogent and natural version in respect of the occurrence in question, it was proved by the testimony of Muhammad Asjad P.W. and the evidence of Dr. Zafar lqbal Gondal that Muhammad Asjad P.W. was the victim of sodomy. The learned trial Judge also believed the recovery of articles from the appellants.

14. As has been seen above, the only culprit, named in the F.I.R. was Khadim Hussain, appellant. The P. Ws. Muhammad Asjad, Muhammad Sarwar and Muhammad A Nazir did admittedly not know the remaining four accused persons before the day of occurrence. Muhammad Nazir P.W. admitted that he had not known the father's name of Khadim Hussain, appellant, but also in the F.I.R., not only was his father's name mentioned but his full address was given. Muhammad Nazir P.W. was frank enough to admit that he did not know his father's name even at the time of his statement in Court. It is in this context that the writ petitions mentioned above, assume importance. On account of the cases against him and the writ petitions instituted by the father of Khadim Hussain, appellant, tie was fully known to the police and the inevitable inference is that so far as the description of Khadim Hussain, appellant, was concerned, the S.H.O, imported his own knowledge into the F.I.R. Khadim Hussain, appellant, was not arrested till 14‑11‑1987 and in the circumstances of the case, the fair course to adopt for the police would have been to have an identification parade held. In these circumstances, learned counsel appearing for the State found it extremely difficult to support the conviction of Khadim Hussain, appellant. In this behalf, it is also pertinent to refer to some very significant admissions made by Muhammad Sarwar P.W. in his cross‑examination. He was a labourer by profession and originally belonged to Bhalwal, District Sargodha. He said that Muhammad Nazir P.W. was his neighbour. He admitted that on the day of his evidence, he had come from his house and gone to the police station and from there he had travelled by the police van to the Court premises. He added that he had been attending the Court by Police vehicle. Muhammad Asjad and Muhammad Nazir P. Ws. had also been travelling to the Court premises by police vehicle. He said that a day before his evidence, Muhammad Nazir and Muhammad Asjad P. Ws. had come from their houses early in the morning; he had met them on the bus ?stand and from there they had travelled to the Court premises in the police pick?up. According to Muhammad Nazir P.W., Muhammad Asjad had left his service C after the occurrence but he admitted that since the commencement of the trial, I Muhammad Asjad had been staying with him. All this must leave one with the impression that these witnesses were hands in gloves with the police and if the fact be that the S.H.O. had been annoyed with Khadim Hussain, appellant, on account of the writ petitions, mentioned above, then this close association of the P. Ws. with the police must necessarily raise doubts about their honesty and impartiality. Muhammad Asjad P.W. would have us believe that five full grown up men had carnal intercourse against the order of nature with him one after the other and this took them about one hour. According to him, in order to force him to submit to their unnatural lust, the appellants and their co‑accused had given him beating with a pass. He did not mention the seat of the pass injuries. As to sodomy, the doctor found redness round the anal margin; he complained of pain when swabs were taken. The doctor did not notice any internal injuries; nor did t he find any bleeding or swelling on the anal margin. In this connection, reference may be made to Mode?s Medical Jurisprudence, twenty first Edition at page

337. According to it, there should have been laceration produced on the mucous membranes within the anus more or less effusion of blood extending horizontally inwards into the rectum. Thus, if as many as five men had the carnal knowledge of Muhammad Asjad P.W., the injuries should have been extensive. The doctor a did say that sphincter muscle may be loose in some individuals and hence presence of swelling and bleeding may not be the necessary result of sodomy; but he did not say that the sphincter muscle of Muhammad Asjad P.W. was loose. In our opinion, therefore, if Muhammad Asjad P.W. had been the victim of sodomy by the five accused persons, the doctor should have been able, by examining his internal and external injuries to say on 7‑11‑1987 that he had been the victim of sodomy. Instead, he postponed his opinion till after the receipt of the Chemical Examiner's report. Then swabs were kept in the police station till 14‑11‑1987; they were sent back with an objection and then again sent on 21‑11‑1987 and there was no explanation why they were not sent to the Chemical Examiner immediately. As to the recoveries, it has been seen above, that the appellants Abdul Jabbar, Masood Akhtar and Anwar Hussain were, according to the prosecution, arrested on 7‑11‑1987 when at about 3‑30 a.m. they were in the house of Anwar Hussain, appellant. At that time, besides the fire‑arms, a sum of Rs. 1,000 was recovered from Abdul Jabbar; Rs.180 from Masood Akhtar; Rs.70 from Anwar Hussain and Rs.745 from Aurangzeb, accused. Yet the Identity Card P.2. Wrist watch P.3 from Khadim Hussain, appellant, woollen Chaddar P.1 from Abdul Jabbar, appellant: purse P.5 and wrist watch P.5 from Masood Akhtar appellant and an Identity Card of Muhammad Nazir P.W. from Aurangzeb accused were said to have been recovered on 20‑11‑1987. As has been seen above, at the time of their arrest on 7‑11‑1987, the persons of Abdul Jabbar, Masood Akhtar, Anwar Hussain and Aurangzeb were searched and according to the prosecution, the robbed money was recovered from them. The evidence of Muhammad Asjad P.W. tends to show that except Khadim Hussain, appellant, the remaining appellants and Aurangzeb had remained together till their arrest and had not gone to their residential houses. The recovery of these articles from the appellants on 20‑11‑1987, therefore, makes it demonstrably clear that these articles were planted upon the appellants in an attempt to connect them with the crime: The only public witness to the recoveries was Fateh Muhammad and he was a resident of a place five ~' miles from Kharian. At the time of arrest of the appellants, Abdul Jabbar, Masood Akhtar, Anwar Hussain and the accused Aurangzeb, no person from that locality was joined; in fact, it was said that though there had been exchange of fire shots, yet no resident of the locality had been attracted. All these circumstances, in our view, combine to make the prosecution case extremely doubtful. We would therefore, accept the appeal set aside the convictions and sentences of the appellants and acquit them. They shall be released forthwith unless required in any other case. N.H.Q./K‑178/L????????? Appeal accepted.