1998 PLP 1924 (MLD)

Third discrepancy shown is that the victim boy has replied to certain suggestions that before the occurrence appellant was neither known to him nor to his father nor to his family. He has also denied that the appellant was in the habit of teasing his father while he used to go in the Bazar. In conflict to all this when suggestions concerning compromise on Rs.20,000 through Haji Rasheed, Arbitrator was made to the complainant he avoided further cross while indicating that he had become indisposed and requested for adjournment which was granted. On the subsequent date i.e. on 21-3-1996 he made a sommar-sault and deposed that on the earlier date he did not say that he was not feeling well. All this was done on the earlier date to gain time for tutoring from his counsel as he was going to be confronted with signed stamp papers of compromise. This conduct of the complainant is suggesting the consent by the passive agent and so called victim. (P.W.8) S.I./I.O. is deposing:

"It is correct that I have not seen any sign of resistance or using of force against any one in the shop. I had recorded the statement of 4/5 persons at the place of occurrence when I reached there. No one else had made statement before me for seeing the occurrence except the P.W. the brother of Khurram Shahzad. " In contrast to this Asad Iqbal (P.W.6), brother of the victim has deposed that police did not record the statement of any person who had gathered there.

7. Following discrepancies and conflicts in the deposition of the alleged victim as suggested by the defence do make up this case to be a case of sodomy by consent. "The distance between Khalid Karyana Store and Lovely Music Centre is 20 paces. It is correct that Niaz accused started dragging me towards Lovely Music Centre from my arm. I do not remember how much time lapse while Niaz accused took me to Lovely Music Centre from Khalid Karyana Store. Niaz took me into the shop Lovely Music Centre while he was physically lifting me. I tried my best to free myself from possession of Niaz accused ...It is correct that as soon as Niaz opened my Azarband forcibly he started committing sodomy with me. During the occurrence I remained weeping and has been trying to free myself from Niaz accused. It is correct that my hands were not tied during the occurrence. It is correct that I tried to free myself from the accused by using my hands and beating him. I do not remember that how long time had elapsed in committing sodomy with me by Niaz accused ....It is correct that whether this sodomy took 2/4 minutes or 4/5 hours showed my Shalwar which was stained with semen to my brother ...It is correct that my father took me to Police Station in the same clothes. When reached the Police Station I was not asked by the police to hand over the Shalwar nor I gave them the Shalwar .....It is correct that I went to the hospital in the same clothes." All these pieces of evidence shake the confidence in the deponent on the one hand so far his allegation of the application of force is concerned and non -securing of Shalwar stained with semen is proving a negligent irresponsible conduct of the police and the doctor who examined the victim.

8. Now comes the turn of another conflict which is crumbling the edifice of the story of force applied for sodomy. Asad Iqbal (P.W.6) is deposing: "My father and Khurram entered into the shop alongwith the police. When police arrived there some people gathered there. I do not tell whether they are the owner of the shops around the shop of Music Centre. Police did not record the statement of any person who had gathered there. However, the police made querry from them. In clear contradiction, Akber Ali (P.W.8), S.I./I.O. is deposing: "I had recorded the statement of 4/5 persons at the place of occurrence when I reached there. No one else had made statement before me for seeing the occurrence except of the P.W. the brother of Khurram Shahzad. With the perusal of the police file the Investigating Officer gives the answer that the brother of Khurram Shahzad has not stated that he has seen the original occurrence of unnatural offence with his own eyes. It is correct no P.W. appeared before me who has stated about the occurrence that he has seen the unnatural offence committed by the accused with his own eyes . ....It is correct that all the evidence which I have collected is hear-say evidence

I have not seen the body of or any part of the victim when I sent him for medical examination. I have not seen any sign of scratch blood on the body of Khurram when I recorded the statement, I have not collected any piece of clothes or clothes of victim on which semen were found during the investigation. "

9. Now comes a stage where the conduct of the so-called victim (P.W.4) needs a correct appraisal. P.W.6 is deposing: "My father and Khurram entered into the shop alongwith the police. When police arrived there some people gathered there. I do not tell whether they are the owner of the shops around the shop of Music Centre. Police did not record the statement of any person who had gathered there. However, the police made querry from them .... I am not an eye-witness of the occurrence. It is correct that I have narrated the story today about the occurrence which was being told Khuram Shahzad to me

It is also incorrect that my brother Khurram is a habitual passive agent and it is known to the people of the Mohalla. My father is not a cunning man. " When these pieces of deposition are read with the observations of Dr. Muhammad Ashraf (P.W.1) that the anus of the victim was fully congested, and to a suggestion he has also admitted that anus was semi-dilated from its normal position, the case of so-called victim according to Forensic Science and circumstantial evidence stands proved to be that of a habitual passive. Modi in his classic on Medical Jurisprudence and Toxicology is giving his expert opinion about the examination of the habitual passive Agents in the following words: "

1. The shaving of the anal hair but not necessarily the pubic hair,

2. A funnel-shaped depression of the buttocks towards the anus. But this may be absent in strong healthy person who are habituated to the act as passive agents, while it may be natural in thin individuals or old women. But in passive agents there is a complete relaxation of sphincter when lateral traction is applied on both the buttocks.

3. The dilated and patulous condition of the anus with disappearance of its radial folds and the prolapse of the rectal mucosa as the sphincter is relaxed. In a dead body the anal orifice dilates from decomposition. " From the above-mentioned, discussion, at least it stands proved that for the alleged victim, being a passive agent of sodomy, it was not the first experience because the examining doctor has admitted that there was no mark of violence whereas in such cases such marks must appear, the anus of the alleged victim was semi-dilated from its normal position, he was a young healthy person. Dr. Muhammad Ashraf (P.W.1) has deposed during cross that the cases of habitual passives, the anus must be funnel shaped. This opinion is falsified by Modi at point No.2 (supra) wherein he has given his expert opinion that funnel- shaped depression may be absent in strong healthy persons who are habituated to the act as passive agents.

10. Now emerges the contention that in the circumstances of the present case, it was essential for Investigation Officer to have sent the samples of the semen of the appellant and the rectal swabs to the serologist for comparison and grouping. This has not been done. In a case reported as 1996 PCr.LJ 1161 at para. No.5, their Lordships have enunciated the following principle: "It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist. In cases of Zina the prosecution will be well-advised to obtain the semen of the accused and have it analysed by the Serologist for matching with the semen found on the swabs. This Court even earlier in the case of Mst. Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit with the semen found on the vaginal swabs. It was observed.' It is not understandable why the Medical Officer examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina-bil-Jabr. The Police Officers in their reference to the Medical Officers should also in such cases invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swabs and clothes/cloth etc., having seminal stains.' Copies of the judgment were sent to the Secretary Interior. Secretary Department of Law, Home Secretaries and the Inspector-General, Police of the Provinces but the Investigating Officers have shown no interest in complying with the said direction and requiring the Medical Officers to obtain specimen of semen of the accused for comparison with the semen found on the vaginal swabs or the clothes both etc. having seminal stains. This is high time that these directions are followed in letter and spirit as this important piece of evidence will remove doubt if any with regard to the identity of the person committing Zina or Zina-bil-Jabr. " There are scores of other rulings of superior Courts on the same lines. The prosecution seems to be negligent in obeying these rulings and this way is indulging into the offence of the contempt of the Superior Courts. In the present case, when it stands proved that the alleged victim has not been subjected to this loathsome act by force and the ingredient of consent is present and that it was not the first experience for the victim, comparison and grouping was highly essential to connect the appellant with the offence.

11. Appellant at the time of alleged occurrence was a raw youth of 17 years of age vide deposition of P.W.2. If offender is young in age and is not a previous convict, Courts take a lenient view in awarding sentence. In Islamic Jurisprudence, the concept of Adl is blended with Ihsan. In holding this view I am assisted by 1991 PCr.LJ 574 in which the relevant rulings appear at paras. Nos. 11 and 12 which read: "We have gone through the case-law cited at the Bar and find that the punishment awarded under section 10(2) of the Ordinance ranges between 5 years and 10 years. We have also noted observations in some of the cases and particularly in Halsbury that maximum punishment prescribed in the statute should be avoided as far as possible. On the scrutiny of the cases we find that the rule of decision adopted for a lesser sentence is age of the offender and his previous life style. If the offender is young in age and is not a previous convict/first offender Courts take a lenient view in awarding sentence. In Islamic jurisprudence the concept of 'Adl' is blended with 'Ihsan' In the case on hand we find that the appellant is a first offender and he is as young in age as only 18 years. At this age passion of a person sometimes rules stronger than discretion. Beastly instinct overpowers reason and restraint. Looking to ail the facts we would reduce the sentence of imprisonment from 10 years to five years R.I. The punishment of whipping membering thirty stripes is mandatory and it is to be left undisturbed. The sentence of fine of Rs.30,000 must also remain. We would, however, add that the fine, if realised, would be paid to the parents of the deceased. The appellant has been allowed the benefit of section 382-B, Cr.P.C. by the learned Trial Court and it is affirmed

Before parting with the case reference may be made to some cases on the reduction of the sentence to an offender under section 10 of the Ordinance. In a case reported in PLD 1985 FSC 1, conviction of the accused was converted from section 10(3) to section 10(2) and the sentence awarded was reduced from 10 years R.I. to 5 years R.I. The following observation made in para. 19 of the judgment may be reproduced;

The facts on record, however, do suggest that it was not a Zina-bil-Jabr but the act was done with the consent of the prosecutrix. We, therefore, alter the conviction from sections 10(3) to 10(2) and keeping in view section 382-B, Cr.P.C. reduce the sentence to five years R.I. with 15 stripes. The appellant is also fined Rs.2,000, and in default of payment of fine, he shall suffer three months S.I. " In another case reported in PLD 1985 FSC 1, (Muhammad Ashraf etc v. The State) the conviction was converted from section 10(3) of the Ordinance to section 10(2) and sentence reduced from ten years to five years R.I. and thirty stripes to fifteen stripes ....In another case decided by a D. B. of this Court and reported in PLD 1987 FSC 11, (Bahadur Shah v . The State) the conviction was converted from section 10(3) to section 10(2) of the Ordinance and the sentence was reduced from five years R.I. to four years R.I. thirty stripes and fine of Rs.1,000 with the following observations in para. 14 of the judgment:

'The above statement of the lady doctor and the rest of the tacts and circumstances in which the occurrence has taken place lead us to this conclusion that whatever may be the reasons and circumstances Mst. Kalsoom Bibi had put not real resistance and it appears that the act was done with her consent. We are, therefore, of the view that the appellant had committed the offence of Zina with consent which is punishable under section 10(2) of the Ordinance. His conviction. Under section 10(3) of the Ordinance is altered to one under section 10(2) of the Ordinance and the sentence awarded is reduced to four years R.I. The sentence of whipping awarding is maintained. However, the appellant is further sentenced to pay a fine of Rs.1,000 or in default of payment of fine to undergo further R.I. for one month. The appellant shall also get benefit of the period of detention suffered by him during the trial as laid down in section 382-B, Cr.P.C." Keeping in view appellant being a student and a raw youth and all other circumstances of the case, while maintaining the conviction under section 377, P.P.C., the sentence of appellant is reduced to two years and fine of Rs.1.000 in default of payment of which the appellant shall have to undergo a simple imprisonment for one month more. Benefit of section 382-B, Cr.P.C. is also extended to him. Appeal is dismissed in such terms. N.H.Q./1197/FSC Sentence reduced.