2025 PLP 1301 (YLR)

Raza Ali Khan, J.

All the captioned appeals stem from the consolidated judgment rendered by the Shariat Appellate Bench of the High Court (hereinafter referred to as the "High Court") on 23rd June 2023, in Criminal Appeals Nos. 06, 07 and 09 of 2022.

2. The key facts of the titled appeals are that on 14th February 2020, Hammad Mehmood, the complainant-respondent, submitted a written application at Police Station Thothal, alleging that after leaving Golden Sparrow School following his tuition, he boarded his motorcycle. At approximately 6:40 PM, the accused, namely Nauman alias Marie Butt, Raja Adnan, and Abrar alias Bagga, intercepted him while riding their motorcycle. Nauman allegedly took control of the complainant's motorcycle by sitting in the front, while Abrar sat behind him, and they directed him towards Thothal Ban Road, with Raja Adnan following on a separate motorcycle. Upon reaching a cattle room near Ban Road, Nauman allegedly committed an act of unnatural lust, while Abrar and Adnan acted as lookouts outside. The accused reportedly threatened the complainant with dire consequences if he disclosed the incident. On returning home, the complainant informed his father and brother, Hamza Mehmood, about the occurrence. Pursuant to this, an FIR No. 47/2020 was registered at Police Station Thothal under sections 341, 342, 377 of the Azad Penal Code (APC) and section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985 (Act 1985) on the same date. Following a formal investigation, a report under section 173 of the Code of Criminal Procedure (Cr.P.C) was presented before the Additional District Court of Criminal Jurisdiction, Mirpur, on 15th June 2020. Subsequently, charges were framed against the accused under section 265-D Cr.P.C on 19th August 2020. The accused pleaded not guilty and claimed innocence, leading to the commencement of the trial wherein the prosecution presented evidence to substantiate its allegations. Upon the conclusion of the prosecution's evidence, the statements of the accused were recorded under section 342 Cr.P.C on 8th December 2021, wherein they denied the charges and reiterated their innocence. Accused Nauman and Adnan additionally recorded their statements under section 340(2) Cr.P.C but opted not to produce any defense witnesses. After thoroughly evaluating the evidence and concluding the trial, the learned trial court convicted Nauman Butt under section 12 ZHA, sentencing him to life imprisonment, 20 lashes, and a fine of Rs. 50,

000. Additionally, under section 377 APC, he was sentenced to life imprisonment and a fine of Rs. 50,

000. Under section 341 APC, he was sentenced to one month of simple imprisonment, and under section 342 APC, to three months of simple imprisonment. Accused Raja Adnan and Kamran alias Bagga were each sentenced to 10 years of rigorous imprisonment and a fine of Rs. 50,000 under section 12 ZHA, one month of simple imprisonment under section 341 APC, and three months of simple imprisonment under section 342 APC, as per the judgment dated 28th December 2021. Aggrieved by the judgment, the convict-appellants challenged the decision before the High Court, which, through its consolidated judgment dated 23rd June 2023, upheld the convictions and sentences awarded by the trial court. Dissatisfied with the judgment of the High Court, the convict-appellants have now preferred the instant appeals before this Court.

3. The learned Advocate for the convict-appellant, Mr. Kamran Tariq (in Criminal Appeal No. 69/23), forcefully argued that the judgments rendered by the High Court and the Additional District Criminal Court suffer from significant misreading and non-reading of material evidence, rendering them unsustainable in law. He contended that the essential ingredients of the offence under Section 12 ZHA were not proven against the appellant, who, along with the co-convicts, has been erroneously convicted. He highlighted that the appellant, being of a very young age, was subjected to a disproportionate punishment, a mitigating factor that was disregarded by both lower courts, particularly in light of the prosecution's failure to conclusively establish the appellant's age of majority. The learned counsel further submitted that the medical evidence presented by the prosecution is inconsistent and fails to establish penetration, a critical element for offences under Sections 377 APC and 12 ZHA. He argued that no element of abduction or kidnapping was proven, and no semen was detected on the alleged victim, the appellant, or their respective clothing. This lack of corroborative evidence undermines the prosecution's case, which relied on unsubstantiated claims and failed to meet the standard of strict proof required in such cases. He pointed out that the testimony of the alleged victim, unsupported by independent witnesses or material evidence, lacked sufficient credibility and corroboration. The learned counsel also challenged the medical opinion regarding the appellant's physical capability to commit the alleged act, arguing that it was flawed and not in alignment with established legal principles. He emphasized that the absence of a semen matching test, coupled with the misconstruction of medical evidence concerning anal sphincter damage, raises serious doubts about the prosecution's narrative. The prosecution's failure to establish the crime scene or produce material witnesses, as mentioned by the complainant, further weakens the case. Additionally, the absence of any signs of resistance or struggle on the part of the alleged victim casts serious doubt on the occurrence of the alleged offence. The learned counsel argued that the principle of parity was flagrantly violated, as the co-convicts were sentenced to 10 years' imprisonment, while the appellant was given a life sentence based on the same evidence. He criticized the trial court for failing to thoroughly evaluate the evidence, including particular key aspects of cross-examinations, and for neglecting to consider the possibility of treating the case as an attempt, an interpretation that could have significantly influenced the severity of punishment. He emphasized that the principle of awarding minimum punishment in cases of doubt was disregarded, and the appellant's mitigating circumstances, such as his young age, good character, and the absence of prior convictions, were entirely overlooked. Lastly, the learned counsel urged the Court to acquit the appellant arguing that the prosecution has failed to prove the charges beyond a reasonable doubt. Alternatively, he submitted that nearly five years of detention already served by the appellant should be deemed sufficient punishment. In support of his submissions, he cited various precedents, including PLJ 2011 FSC 115, 2006 PCr.LJ 1525, 2023 SCR 1172, 2012 PCr.LJ 1200 and PLD 1961 Pesh. 07.

4. Raja Khalid Mehmood Khan, the learned Advocate for the convict-appellant (in Criminal Appeal No. 70/23), submitted that the impugned judgments of the trial Court and the High Court are contrary to law and the established facts of the case, thus warranting their dismissal. He contended that no direct evidence implicates the appellant in the alleged offences, as the accusations primarily concern the principal accused. The allegation that the appellant followed the victim on a motorcycle is unsupported by evidence, with no recovery of the motorcycle or corroborating call or data records to substantiate the allegation. The investigating officer, during cross-examination, admitted that neither kidnapping nor abduction was proven, nor was there any evidence to establish that the appellant committed Zina or sodomy. The complainant's own statement revealed that he drove the motorcycle to the location, and no evidence was presented to link the appellant with the transport of the victim to the scene of the incident. The investigation suffered from significant lapses in the investigation further weakened the prosecution's case, including the failure to recover the motorcycle, the absence of tyre marks or verification of the crime scene, and the non-involvement of the Haveli owner, all of which weaken the prosecution's case. The statement of the complainant's father, recorded a month after the incident, casts serious doubt on its reliability. Moreover, key witnesses, such as the complainant's brother and other academy staff, were not produced, leaving critical gaps in the prosecution's narrative. The medico-legal report relied upon by the courts is also flawed, as the tenderness noted in the anal region could be attributed to non-criminal causes, such as constipation or irregular bowel movements. Furthermore there was no evidence of injuries, abrasions, or positive swab tests. Even, no semen-matching test was conducted, which is a crucial element in such cases, and the chemical examiner's report failed to substantiate the prosecution's claims. The prosecution also failed to establish the basic elements of the offence under Section 12-ZHA, as neither kidnapping nor unnatural lust was proven. The evidence against the appellant hinges solely on the statements of the complainant and his father, both of which lack independent corroboration and fail to meet the standard of proof beyond a reasonable doubt. The judgments of the Trial Court and the High Court are tainted by misreading and non-reading of evidence, reliance on speculative conclusions, and failure to address the inconsistencies and gaps in the prosecution's case. Consequently, the appellant is entitled to acquittal, and the impugned judgments should be set aside.

5. Raja Inamullah Khan, the learned Advocate for the convict-appellant (in Criminal Appeal No. 71/23), contended that the impugned judgments of both the Trial Court and the High Court are illegal, contrary to law, and based on a mis-appreciation of facts and evidence, thereby violating fundamental principles of criminal justice. He argued that the trial Court failed to analyze the evidence in a judicious manner, overlooking significant discrepancies that rendered the prosecution's case frivolous. Despite these critical lapses, the Trial Court convicted the appellant, and the High Court unjustifiably upheld the conviction, wrongly deeming the discrepancies as non-fatal. The learned counsel pointed out that the final medical report, prepared four months after the provisional report, introduced scars that were absent from the initial findings and was compiled without producing the victim for examination, casting serious doubt on its credibility. The prosecution's claim that the appellant arrived at the scene on a motorcycle was unsupported by any corroborating witness, and no evidence was presented regarding the ownership or recovery of the motorcycle. Moreover, the prosecution failed to establish that the appellant committed any offence or had any knowledge of or intent to assist the co-accused, yet both courts unjustly convicted him. The statement of the victim's father, recorded after an unexplained delay of over a month, further compromised its reliability. Additionally, the seizure of the victim's clothes two days after the incident raised suspicions of fabrication. The learned counsel also highlighted that defense evidence demonstrated that the appellant did not leave the school on the date of the incident, a claim that was unchallenged during cross-examination and thus should be deemed admissible under established legal principles. Furthermore the prosecution's failure to produce the chemical examiner's report suggested it was unfavorable to their case, thereby reinforcing the presumption of the appellant's innocence. These numerous flaws in evidence and procedure ignored by both courts, render the impugned judgments unsustainable and liable to be set aside.

6. Mr. Rashid Nadeem Butt, the learned Advocate appearing for the complainant in all appeals, submitted that the impugned judgments passed by the learned High Court and the Additional District Criminal Court Mirpur are in accordance with the law and do not warrant interference by this Court. He argued that justice must not only be done but also be seen to be done, emphasizing the importance of applying the law as a deterrent to prevent similar acts in society. The learned Courts below, he contended, decided the case on its merit after considering the evidence and circumstances, rendering the judgments free of any flaws. The appellants, he asserted, have failed to present valid grounds for intervention. The prosecution, he argued, successfully proved its case beyond a reasonable doubt, thereby justifying the convictions. He elaborated that under Section 377-APC, carnal intercourse against the order of nature constitutes an offence, requiring only simple penetration for completion. The victim, Hammad Mehmood, testified credibly and consistently, and his statement, corroborated by medical evidence, suffices for conviction under Section 377-APC, as established in case law (2012 PCr.LJ 1200). The medical report confirmed the victim's claim of being subjected to unnatural lust, and this was further supported by the examining doctor's testimony. Additionally, Nauman, the accused, was found capable of performing intercourse, thereby substantiating the offence. The recovery of motorcycles and the victim's testimony further corroborated the charges of kidnapping and wrongful restraint under Sections 341 and 342-APC, as well as Section 12 of the Zina (Enforcement of Hudood) Act. Lastly, the learned Advocate argued that the courts below judiciously evaluated all evidence and reached a lawful conclusion, making the impugned judgments well-founded and not requiring any interference by this Honorable Court.

7. Mr. Ahmed Saad, the learned Assistant Advocate-General appearing for the State, contended that the convict-appellants have failed to present any cogent or valid grounds for interference with the judgment of the learned High Court. He argued that the prosecution successfully proved its case beyond a reasonable doubt, justifying the convictions recorded by the courts below, which are liable to be sustained. Referring to Section 377-APC, he emphasized that the offence of sodomy is complete when carnal intercourse against the order of nature occurs, requiring only simple penetration to constitute the offence. The victim, Hammad Mehmood, appeared in the witness box and narrated the incident in a credible and confidence-inspiring manner. His testimony was corroborated by the medical report, which confirmed signs of sexual assault, including damage to the anal or external sphincter, bruises on the back, and evidence of a struggle all occurring approximately two to three hours prior to the medical examination. The examining docto endorsed these findings, supporting the prosecution's case. Additionally, the accused Nauman was medicall-examined and found capable of performing intercourse substantiating the commission of the offence under Section 377-APC with unblemished evidence. The recover memos of the motorcycles further corroborated the use the motorcycles by the appellants during the incident, strengthening the prosecution's case. He lastly submitted that the appellants have failed to point out any material flaw or infirmity committed by the Courts below, and thus, the impugned judgments should be upheld and the appeals dismissed.

8. We have heard the learned counsel for the parties in all the appeals and have thoroughly examined the record of the case along with the impugned judgments. Initially, we shall address the case concerning the principal accused, Nauman Butt, and thereafter proceed with our findings regarding the co-accused. The prosecution's case is that, upon exiting the Golden Sparrow School after tuition and boarding his motorcycle, the victim was approached by the convict Nauman alias Mari Butt, along with co-accused Raja Adnan and Kamran alias Bagga, who arrived on a motorcycle. They obstructed the victim's path, with Nauman mounting the victim's motorcycle in the front and Kamran boarding at the rear. The accused then forcibly took the victim towards Thothal Ban Road, with Raja Adnan following on another motorcycle. Upon reaching a cattle room near Ban Road, Nauman committed an act of unnatural lust while Kamran and Adnan remained outside as lookouts.

9. The most crucial witness in this case is the complainant/victim, Hammad Mehmood, on whose application (Exhibit PA) dated February 14, 2020, the case was registered. In his judicial statement, the complainant testified that on February 14, 2020, after attending tuition at Golden Pearl Academy and leaving the premises at approximately 6:40 PM, he was riding his motorcycle on his way home when the convict-appellants intercepted him. Convict Nauman Butt sat in front of him on his motorcycle, while convict Kamran alias Bagga sat behind him. Convict Raja Adnan followed them on another motorcycle. The convicts then forcibly took him to a desolate location on Ban Road and subsequently into an abandoned haveli. There, convict Nauman Butt subjected the complainant to an unnatural sexual assault, while the other two convicts, Kamran and Adnan, kept watch outside. The complainant further stated that after the incident, he returned home and informed his elder brother, Hamza Mehmood, and his father, Mehmood Chohan, about the occurrence. His father then accompanied him to the police station, where they submitted the initial application (Exhibit PA) and had the FIR (Exhibit PB) registered. The complainant categorically denied having any prior enmity or hostility with the convicts or any motive to falsely implicate them.

10. The father of the complainant, Mehmood Ahmed Chohan, also recorded his testimony in court, which corroborated the complainant's statement. He testified that he returned home from his office at around 6 PM and noticed that his son, who had gone to the tuition academy, had not returned home at his usual time of 6:30 PM. After inquiring with his son's friends, he learned that Hammad had left the academy at 6:15 PM. Mehmood further stated that Hammad returned home at approximately 8 PM, visibly distraught, and narrated the incident to him. Following this, Mehmood took his son to the police station, where the FIR was registered, and a medical examination was conducted. He testified that he had no prior enmity with the convicts and emphasized that he would not falsely implicate anyone, particularly in such a serious matter involving his son's honor and dignity.

11. The prosecution also presented Dr. Syed Fida Hussain Shah, Chief Medical Officer (CMO) at DHQ Mirpur, as a witness. He conducted the medical examination of the complainant on February 14, 2020, and issued an interim medical report (Exhibit PG), confirming the occurrence of unnatural sexual assault. Dr. Shah's findings detailed damage to the external anal sphincter, bruises on the complainant's back, and signs of struggle. He concluded that the assault had occurred approximately 2 to 3 hours prior to the medical examination. During cross-examination, the doctor denied the defense counsel's suggestion that the injuries could have been self-inflicted or fabricated. Additionally, further corroborating evidence was provided by Dr. Ahmed Hussain, CMO at DHQ Mirpur, who examined convict Nauman Butt on February 17, 2020, after he was presented by the police. The medical report (Exhibit PK) confirmed that the convict was a normal adult male with fully developed sexual characteristics, capable of performing sexual acts. Dr. Hussain refuted the defense's claim that the individual examined was someone other than the convict.

12. The testimonies of the complainant, his father and the medical experts were found to be consistent, credible, and corroborative. The complainant's statement was substantiated by Dr. Shah's medical evidence, which confirmed the occurrence of unnatural sexual act, and by Dr. Hussain's testimony, which established the convict's ability to perform such acts. In cases of this nature, the testimony of the victim, if coherent and credible, is often sufficient for conviction. It is highly implausible for a victim, particularly a young individual, to falsely implicate someone in such a crime, given the immense personal and social stigma attached. Similarly, the father would not knowingly jeopardize his son's honor by making false accusation. The evidence, both oral and documentary, including the complainant's testimony, his father's corroborative statement, and the medical reports, conclusively established that convict Nauman Butt committed sodomy with the complainant. Additionally Abrar and Adnan facilitated the crime by acting as accomplices. The testimonies of the four prosecution witnesses collectively confirmed the occurrence of the crime.

13. The learned trial Court, upon convicting the convict-appellant Nauman Butt, awarded him life imprisonment, 20 lashes, and a fine of Rs.50,000 under Section 12 of the Zina (Enforcement of Hudood) Act, 1985, along with life imprisonment and a fine of Rs.50,000 under Section 377 of the Pakistan Penal Code (APC). Additionally, he was sentenced to one month of simple imprisonment under Section, 341 APC and three months of simple imprisonment under Section 342 APC. The key issue that needs to be determined is whether, based on the evidence presented by the prosecution, the aforementioned sentences were justly awarded by the trial Court and upheld by the High Court. To assess this, it is essential to examine the relevant statutory provisions. Section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, is reproduced below for a clearer understanding:- "

12. Kidnapping or abducting in order to subject to unnatural lust. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping not exceeding 30 stripes"

14. The Section supra, addresses the offence of kidnapping or abduction with the intent to subject a person to unnatural lust. It provides that any person who kidnaps or abducts another with the intention of subjecting them to unnatural lust, or knowing puts them in danger of being subjected to such acts, shall face severe punishment. The punishment prescribed under this section is death or rigorous imprisonment for a term which may extend to twenty-five years. In addition, the offender is also liable to a fine, and if the punishment imposed is imprisonment, whipping not exceeding thirty stripes shall also be awarded. The essential ingredients of Section 12 are that firstly; the prosecution must establish that the act of kidnapping or abduction has occurred. Kidnapping involves taking a person away without his consent, whereas abduction entails forcibly or deceitfully compelling someone to move from one place to another. Secondly, the intention of the accused plays a critical role in establishing this offence. It must be demonstrated that the purpose of the kidnapping or abduction was to subject the victim to unnatural lust. The term "unnatural lust" refers to sexual acts that are against the order of nature. Third, if the accused does not have a direct intention but acts with the knowledge that the victim is likely to be subjected to unnatural lust, this also constitutes an offence under Section

12. Knowledge here refers to awareness of the potential consequence of one's actions. Fourth, the section also covers situations where the victim is put in danger of being subjected to such acts. It is not necessary for the act of unnatural lust to have been completed; the prosecution must show that the victim faced real and immediate risk. The law prescribes severe punishments to reflect the gravity of the offence. The offender may face death or rigorous imprisonment for up to twenty-five years, accompanied by fine. If imprisonment is imposed whipping not exceeding thirty strips may also be awarded.

15. Similarly, Section 377 of Azad Penal Code, is regarding the commission of unnatural offence. For ready reference, the same is reproduced hereunder for better appreciation:

377. Unnatural Offences: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine."

16. Section 377 supra, deals with the offense of unnatural carnal intercourse, which refers to sexual acts that are considered "against the order of nature." This indicates acts such as Sodom, bestiality or other forms of intercourse deviating matured from reproductive foundation. The section prescribes imprisonment of either description, ranging from two to ten years, along with a fine. Key aspect of this provision include the following; even the slightest penetration is sufficient to establish the offense, and completion of the act is not necessary for conviction. The act must be committed voluntarily, meaning it is done intentionally and without coercion. Carnal intercourse involves penetration, whether with a man, woman, or animal. The phrase "against the order of nature" is central to this law and implies acts that do not align with natural reproductive functions or accepted societal norms.

17. In the present case, the principal convict, Nauman Butt, has been sentenced under both Section 12 ZHA and Section 377 APC. However, the learned counsel for the appellant contended that the prosecution failed to establish the charge of abduction or kidnapping, which, according to him, is a fundamental element for the application of Section 12 of the ZHA. The appellant's counsel argued that, despite this deficiency, both the trial Court and the High Court did not give due consideration to this crucial aspect of the case. He referred to certain portions of the victim's testimony, as well as statements from other prosecution witnesses, in an attempt to construct a narrative suggesting that the victim was not abducted. Given the gravity of the allegations involved, this Court, in the interest of justice, carefully examined the entirety of the witnesses' statements and the record of the trial Court to determine whether the prosecution had indeed failed to establish the charge under Section 12 ZHA or whether the counsel's arguments were based on speculative assertions. The prosecution's case, as outlined in the FIR, is that the three accused-appellants forcibly abducted the victim and took him to the place of occurrence, where convict Nauman Butt committed the act of sodomy upon him. However, during his testimony, the Investigating Officer/ SHO Muhammad Zohaib Tahir, initially corroborated the story as stated in the FIR, describing the abduction as a part of the alleged sequence of events. Yet, during cross-examination, the IO conceded that further investigation did not substantiate the abduction charge. This admission by the IO raises significant doubts on the credibility of the abduction charge and necessitates careful evaluation of prosecution sufficiently proved the elements required for conviction under Section 12 ZHA have been adequately proven by the prosecution. The relevant portion of the IO's statement, where he admitted the lack of proof regarding the abduction, is reproduced hereunder for a comprehensive analysis of the matter. Firstly, it is imperative to underscore that an Investigating Officer (IO) bears the responsibility of presenting clear, consistent, and credible findings. A statement from the IO, asserting that abduction was not proven, particularly in a case where the victim has provided a detailed and coherent account of being forcibly taken by the convicts to the location of the incident, followed by the commission of sodomy by one of them, raises concerns about the adequacy and diligence of the investigation. Such ambiguity in the IO's statement does not negate the victim's testimony, which is pivotal and corroborated by other evidence on record. Secondly, it is a well-settled principle of law that the entire trial cannot be nullified or vitiated merely on the basis of a single contradictory or ambiguous statement made by one of the prosecution witnesses, including the IO. While the accused are entitled to the benefit of any reasonable doubt that arises from inconsistencies in witness statements or evidence, this principle does not extend to disregarding credible evidence and corroborative recorded altogether. A trial Court must evaluate the entirety of the evidence, ensuring that the collective weight of credible testimony and corroboration is not undermined by isolated ambiguities. In cases involving sensitive and grave offences, such as the one at hand, the victim's testimony, when corroborated by medical evidence and other material facts, forms the bedrock of the prosecution's case. The law recognizes that lapses or discrepancies in the investigation process may occur, but such deficiencies should not lead to a wholesale rejection of otherwise compelling evidence. These shortcomings, if any, may be appropriately considered in the context of mitigating the sentences awarded to the convicts, but they do not absolve the convicts of their culpability, particularly when the evidence on record convincingly establishes the commission of the crime. Thus, while the IO's ambiguous statement requires scrutiny, it does not suffice to vitiate the trial or overshadow the substantive and corroborated evidence presented by the prosecution.

18. According to the narrative presented in the FIR, the convict, Raja Adnan, purportedly followed the victim and the other convicts on a motorcycle. However, the investigation revealed discrepancies in this account. Specifically, evidence indicated that Raja Adnan was not present at the scene but was allegedly called by Nauman after the victim had been brought to the site of the occurrence. This inconsistency raises questions about the sequence of events. Moreover, the victim, during his testimony in court, explicitly stated that he did not see Raja Adnan at the crime scene, further casting doubt on the prosecution's claim regarding his presence and involvement in the abduction. Adding to the uncertainty, no recovery of a motorcycle was made from Raja Adnan, which undermines the credibility of the claim that he followed the victim on a motorcycle. This gap in the prosecution's case creates reasonable doubt about the abduction aspect of the incident. However, it is a well-established principle in cases involving sodomy that the testimony of the victim is afforded paramount importance, given the inherent difficulties in corroborating such offences through other means. The victim's account of the incident, supported by other evidence, remains central to the determination of guilt. While the doubts regarding Raja Adnan's specific role in the abduction cannot be ignored. These ambiguities may instead serve as mitigating factors. In light of the victim's credible testimony and the corroborative evidence, the possibility of abduction cannot be entirely ruled out. Nonetheless, the benefit of mitigating circumstances may appropriately be extended to the convicts recognizing investigative and evidentiary shortcomings.

19. The statement of the victim's father, recorded under Section 161 Cr.P.C, was delayed by one month and four days. The prosecution attributed this delay to the constraints posed by the COVID-19 pandemic, asserting that the prevailing situation hindered the immediate recording of the statement. However, the record reveals that the victim's father frequently visited the police station during this period for various purposes, yet no effort was made to record his statement promptly after the initial report. It is a well-established principle of law that undue delay in recording a statement under Section 161 Cr.P.C diminishes its evidentiary value as such statements are more susceptible to fabrication or embellishment by a cogent and justifiable explanation. In the present case, the explanation provided, although plausible given the extraordinary circumstances of the pandemic, is contradicted by the documented visits of the complainant's father to the police station. This contradiction raises questions about the credibility and reliability of the delayed statement. Courts must exercise caution in evaluating the probative value of such statements, ensuring that any delay is scrutinized in the context of the case's overall facts and circumstances. While the COVID-19 pandemic presents a potential justification, the failure to record the statement despite multiple opportunities undermines the validity of the explanation. Therefore, the delayed statement of the victim's father cannot be afforded the same weight as contemporaneous evidence, unless the prosecution provides a more compelling and substantiated justification for the lapse. A judgment of the Supreme Court of Pakistan tilted Noor Muhammad v. The State and another on this legal point is particularly insightful and highly relevant in this regard: - "Similarly, Mst. Amina Bibi and Mst. Imtiaz Fatima introduced eye-witnesses of the occurrence also made their statements under section 161, Cr.P.C on 31.12.2018, with the dealy of more than one and half year. It is established principle of law that delayed recoding of statement of the PW under section 161, Cr.P.C reduces its value to nil." The same view has been taken in another case reported as Abdul Khaliq v. The State, by the Apex Court of Pakistan, wherein, it has been held that: - "Late recording of statement of a prosecution witness under section 161, Cr.P.C reduces its value to nil unless delay is plausibly explained." In a latest Judgment of Supreme Court of Pakistan, titled Bashir Muhammad Khan v. The State, while reiterating the same view, it has been held that: - "Delayed recording of statement of PW under section 161, Cr.P.C reduces its value to nil unless and until it is explained rendering justiciable reasoning."

20. For the constitution of the offence under Section 12 of the ZHA, the essential element is the abduction or kidnapping of the victim. In the present case, as discussed above, certain doubts arose regarding the occurrence of abduction. In light of the mitigating circumstances, imposing the harshest or maximum punishment prescribed under Section 12 ZHA cannot be justified. Consequently, we find that the sentence of life imprisonment and twenty stripes awarded to the principal convict, Nauman Butt, by the trial court under this section is excessive. Instead, the alternate punishment provided under Section 12 ZHA, must be proportionate to the circumstances.

21. The co-accused, Adnan Nazir and Ibrar alias Bagga, were sentenced to ten years of imprisonment along with a fine of Rs. 50,000 each under Section 12 ZHA. Upon reviewing the record and evidence, it is apparent that significant mitigating circumstances exist, particularly concerning the allegations of abduction of the victim and contradictions in the prosecution's narrative. Specifically, the claim in the FIR that Adnan Nazir followed the victim and other convicts on a motorcycle is inconsistent with the findings during the investigation, which revealed that Adnan Nazir was not present at the scene initially but was allegedly called to the location later. This contradiction is a material inconsistency that raises doubts about the prosecution's version of events. Furthermore, the investigation also failed to substantiate the recovery of a motorcycle from Adnan Nazir, further weakening the allegation of his direct involvement in the abduction. It is also pertinent to note that both Adnan Nazir and Abrar alias Bagga have already served a substantial portion of their sentences, and this fact carries considerable weight in the dispensation of justice, especially when viewed alongside the mitigating circumstances. The learned High Court, despite these contradictions and mitigating factors, upheld the maximum sentences imposed by the trial court without adequately addressing the discrepancies in the prosecution's case or the reduced culpability of these co-accused.

22. Addressing the crucial question regarding the application of Section 377 APC, it is necessary to assess whether the punishment awarded to the principal convict, Nauman Butt, by the trial Court and subsequently upheld by the High Court, was justifiable in light of the evidence and legal principles. The convict was sentenced to life imprisonment and a fine of Rs. 50,000 under Section 377 APC. The learned counsel for the convict, Nauman Butt, Mr. Kamran Tariq, raised two critical points challenging the conviction and sentence under this provision. Firstly, counsel argued that the essential ingredient for an offence under Section 377 APC is penetration. The medical evidence presented during the trial, particularly the report of Dr. Syed Fida Hussain Shah, stated that the external anal sphincter of the victim was damaged but did not explicitly confirm penetration. The absence of internal anal injuries or signs of deeper trauma was emphasized by the defense to cast doubt on the prosecution's claim of penetration. The doctor's statement that "sexual assault has happened" was characterized as inconclusive and insufficient to establish the offence beyond reasonable doubt. It was further argued that the medical findings, while indicative of some form of assault, fall short of proving the penetration necessary to substantiate a charge under Section 377 APC, thereby rendering the application of this section questionable. Secondly, the learned counsel contended that the punishment of life imprisonment is disproportionate considering the convict's young age. Referring to precedents from this Court and jurisprudence in Pakistan, the counsel emphasized that the principle of proportionality arguing that it should be applied when sentencing young offenders. He argued that excessive punishment in such cases not only fails to align with established principles of criminal justice but also risks undermining the rehabilitative purpose of sentencing, especially when mitigating factors such as age and the convict's potential for reformation are present. In light of these submissions, the validity of the punishment under Section 377 APC warrants careful reconsideration.

23. The first point raised by the learned counsel was that penetration is the main requirement of application of section 377 APC, but the instant case no penetration has occurred. According to the medical report, the Doctor has opined that Section 377 APC deals with unnatural offences and states that "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment..." The law clearly states that even the slightest penetration is enough to fulfill the requirements of the offence. Complete and deep penetration is not prerequisite, a principle well established in criminal law. In this case, the medical report prepared by the doctor reveals important findings that strongly point to sexual assault, specifically involving anal intercourse. The report confirms damage to the anal or external sphincter which strongly indicate penetration and substantiates the charge under section

377. To better understand this, it is important to consider that the anatomy of the anal sphincter which consist of two muscles: the internal and external sphincter. These muscles help control the opening and closing of the anus. Damage to these muscles usually occurs when there is a forceful anal penetration, especially when it happens without consent or lubrication. Such damage is often caused by forceful thrusts, resulting in tears, abrasions, or trauma. The doctor has further clarified that these injuries occurred about "2 to 3 hours before" the examination, which means the trauma is fresh and directly linked to the incident being investigated.

24. The medical report also mentions struggling signs of struggle which are physical marks indicative of the victim resisting during the sexual assault. These signs include scratches, bruises, or cuts on the body. Struggling marks usually occur when the victim fights back while the offender uses force to restrain them. The doctor further noted bruises on the victim's back, caused by blunt force trauma. Such bruises are often observed when a victim pinned down or forcibly held against a hard surface during an assault. This finding tends additional credence to the evidence of non-consensual sexual force aligning with the legal definition of sexual assault under Section 377 APC. The signs of struggle and bruising corroborate the victim's testimony and clearly demonstrate the absence of consent. The learned counsel for the accused argued that the medical report does not explicitly use the word "penetration" and, therefore, the offence under Section 377 cannot be established. However, this argument lacks merit when considered in light of the legal standard. It is important to note that the law does not require the doctor to specifically use the word "penetration" in their report. Penetration can be inferred from the evidence of damage to the anal sphincter, which serves strong proof of forceful entry. Courts have consistently held that even the slightest degree of penetration fulfills the legal requirement under Section 377 APC. Complete penetration or ejaculation is not necessary. In this case, the doctor's findings-damage to the anal sphincter, the presence of struggling marks, and the confirmation of the sexual assault clearly indicate that penetration occurred.

25. Although the medical report does not explicitly mention the word "penetration," it provides more than sufficient evidence to establish that it occurred. The law does not demand specific terminology to prove penetration; rather it evaluate the entirety of the evidence and circumstances. The injuries documented in the report, such as trauma to the anal sphincter, bruises, and signs of struggle, combined with the doctor's conclusion that sexual assault took place, are more then adequate to meet the requirements of Section 377 APC. Therefore, focusing solely on the absence of a particular word in the report is a unconvicing not a valid argument and does not absolve the accused.

26. The second contention raised by learned counsel relates to the age of the accused at the time of the incident, asserting that he was approximately 17 or 18 years old and, due to his young age, the punishment of life imprisonment is excessive and disproportionate. Upon examining the record, it is evident that the medical report prepared during the convict's examination indicates his age as 17 to 18 years. The medical officer further noted that the convict is a normal adult male, with normal pubic hair distribution and fully developed sexual characteristics. The report also confirmed positive penile erection upon prostatic massage, concluding that he was capable of performing sexual acts. Based on the available evidence, it is determined that at the time of the incident, the accused was approximately 17 years and a few months old, slightly below the age of

18. However, he exhibited all physiological traits consistent with those of an adult individual, including the ability to engage in sexual activity, evidenced by the medical findings. According to Section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1985, an individual found guilty of zina or zina-bil-jabar who is not an adult may be subjected to imprisonment for a term not exceeding five years, a fine, or both, and may also face the punishment of whipping, not exceeding thirty stripes. For clarity, the provision is as follows "Punishment for Zina or Zina-bil-Jabr where convict is not an adult -- A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded for the punishment of whipping not exceeding thirty strips; Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.' It is undisputed that if the convict is not an adult, he may be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, as provided under Section 7 of the Offence of Zina (Enforcement of Hudood) Act, 1985. However, the primary issue requiring determination is whether the convict was an adult at the time of the commission of the offence, specifically whether he was under the age of

18. To ascertain this, reliance must be placed on the definition of "adult" as provided in Section 2(a) of the Offence of Zina (Enforcement of Hudood) Act, 1985, which states: ""adult" means a person which has attained, being a male, the age of eighteen years or, being a female the age of sixteen years, or has attained puberty." Thus, in the case of a male person, he is deemed to be an adult if he has attained the age of 18 years or has attained puberty, whichever occurs earlier. In the present case, although the convict's age at the time of the commission of the offence was not exactly 18, the medical evidence clearly establishes that he had attained the physical and sexual maturity necessary for the commission of the offence. The doctor's report unequivocally stated that the convict was capable of performing intercourse, a conclusion supported by other corroborative factors detailed in the medical findings. For further clarification, Modi's Medical Jurisprudence and Toxicology (1979, 2nd Edition, page 303) defines puberty as the stage at which an individual attains full sexual maturity which is as follows: "Boys are considered to be sexually potent at the age of puberty which usually occurs at the fifteenth or sixteenth year. Sexual intercourse is, however, possible at about the thirteenth or fourteenth year, as the power of coitus commences earlier and ceases later than the power of procreation. The changes which occur in a boy at puberty are the development of the genital organs, the ability to secrete semen, the-growth of hair on the pubes, axillae and chin, and the increase in size of the larynx leading to the deepening of the pitch of the voice." In the present case, the medical evidence clearly indicates that the convict had attained the physical maturity as detailed in the doctor's report which highlights the development of sexual characteristics such as the ability to perform intercourse. This substantiates the conclusion that the convict had reached adulthood. The learned counsel for the principal convict referred to the case of Muhammad Iqbal v. Muhammad Tahir and others 2006 PCr.LJ 1531, where the convict was considered underage, and the Court extended the benefit of his young age. However, upon examining the facts of that case, it is evident that the convict was only 16 years old, with no corroborative factors such as the development of genital organs, the ability to secrete semen, or the growth of pubic, axillary, and chin hair. These indicators were crucial in determining the convict's physical maturity, and their absence led the Court to grant the benefit of the accused. In contrast, the present case presents a different scenario. The convict has exhibited clear signs of physical maturity, including the ability to engage in sexual activity, as confirmed by the medical examination. Thus, the reasoning applied in the Muhammad Iqbal case is not applicable here. The facts of this case unequivocally indicate that the convict had reached the stage of sexual maturity and qualifies as an adult under the law. 26.(sic) One matter of concern that requires attention is the inadvertence on the part of the doctor in failing to explicitly use the term "penetration" or "canal intercourse," which are essential elements for establishing an offence under section 377 A.P.C, this omission raised doubt in the mind of the learned counsel for the appellant while the medical report has given rise to two interpretations. The appellants counsel argued that the absence of the term "penetration," undermine the claim that an offence under section 377 was committed, however, based on Doctor's report, physical evidence, such as external sphincter and presence of bruises, strongly suggest that penetration or carnal intercourse did occur. While the lack of precise medical terminology is relevant it does not overshadow the -broader facts and context of the case. The failure to use specific terminology does not negate the reality of the crime. Nonetheless, this lapse has provided the appellant an opportunity to seek mitigation of offence committed. It is crucial for the court to adopt a fair and liberal approach in such cases. A well-established principle of law holds that where two plausible explanations of a situation exist, the one that favors the accused should be preferred. This principle emphasized in Muhammad Iqbal's case, (supra), where, it was observed: - "In the present case unfortunately no such symptoms have been mentioned by the doctor in his report. When anything positive is missing from the report then in such cases the presumption would be in favour of an accused person because it is a celebrated principle of law that when two explanations of a particular situation can be drawn, then one favourable to the accused is to be mentioned by the doctor, therefore, the presumption would be that there were not in existence as such were mentioned by him in the report." The Peshawar High Court also reiterated this principle in the case Naseeb-ur-Rehman v. Muqarab Khan and another, stating that: "It is well settled principle of law that when two interpretations of evidence are possible, then one favouring the accused is to be followed." In line with the principle, the convict-appellant is entitled to some degree of mitigation. However, this mitigation must be assessed in light of the unique facts and circumstances of the current case. It is important to emphasize that any mitigation granted here should not serve as a binding precedent for future cases. Each criminal case is distinct, and the facts and circumstances of one case may not necessarily apply to another. Courts retain discretion to evaluate similar situations on their own merits in future cases. Considering the specific facts of the case while conviction under section 377 APC as passed by the trial Court and affirmed by the High Court is upheld, the sentence is modified. Based on the foregoing detailed discussion and careful analysis of the evidence and legal principles, we partly accept the appeals and modify the impugned judgment in the manner as indicated below: i. The conviction of Adnan Nazir and Ibrar alias Bagga is upheld. However, their punishment is reduced to the sentence they have already undergone, acknowledging the circumstances of their individual cases. ii. The conviction of Nauman Butt is also upheld. However, the sentences imposed upon him are modified as follows: Under section 12 of the Azad Hudood Act (ZHA): The punishment of life imprisonment is reduced to rigorous imprisonment for a term of 10 years, along with a fine of Rs. 50,

000. Under section 377 APC: The punishment of life imprisonment is reduced to rigorous imprisonment for a term of 10 years, along with a fine of Rs. 50,

000. Under section 341 APC: He is sentenced to one month of simple imprisonment. Under section 342 APC: He is sentenced to three months of simple imprisonment. JK/21/SC(AJ&K) Order accordingly.