P L D 1984 Federal Shariat Court 23 (PLP)

MUHAMMAD SIDDIQ, J.‑Mian Muhammad, complainant lodged the first information report Exh. P. F. with Police Station Daud Khel; alleging therein that on 7‑4‑1982 at about 4/5 p. m. his grandson, Muhammad Zubair P. W. aged about 9‑10 years, following his aunt Mst. Hajra, was going to the fields, when be reached near tube‑well Rustam Wala, Muhammad Tufail, accused stopped him and took him to a nearby wahn, after putting one hand on his mouth. The accused removed the shalwar of. Muhammad Zubair P: W. and started committing unnatural offence with him. Muhammad Zubair P. W. felt pain and, therefore, raised alarm which attracted Muhammad Amin and Abdullah P. Ws. to the place of occurrence. Seeing these persons Muhammad Tufail, accused made good his escape. After getting the medical examination of Muhammad Zubair P. W. the complainant lodged the first information report with the police.

2. In support of its case the prosecution produced 6 witnesses. Doctor Muhammad Mushtaq Ahmad M. O. Civil Hospital, Kala Bagh (P. W. 1) on 8‑4‑1982 at 6‑30 p. m. examined Muhammad Zubair P. W. and found the following injuries on his person :‑ (1) "A linear' tear cm x 2 mm on the posterior margin of anus. Anal edge was swellen. No seminal or blood‑stains were found on the clothings or the body. (2) An abrasion 1 x cm x 1 cm on the back of right elbow joint. It was slightly septic." Three anul swabs were taken from the anus of the victim, sealed in a container, signed by the doctor and were handed over to the complainant for sending the same through the Police Station Daud Khel, to the Chemical Examiner, Lahore for detention of human blood and semen. The injuries were simple in nature and were caused within the duration of 24 hours,‑ Injury No. 1 was caused with blunt weapon or male sexual organ. Injury No. 2 was caused with a blunt weapon. While handing over the swabs to the complainant, the doctor had written a letter to the chemical Examiner, Lahore, copy of which is Exh. P. B. The doctor received the report of the Chemical Examiner Exh. P. C., according to which the swabs were found stain 6d with semen proving that sodomy was committed against Muhammad Zubair P. W. The doctor gave his opinion Exh. P..D. that sodomy was committed against: Muhammad Zubair p. U.

3. The same doctor on 10‑4‑1982 examined Muhammad Tufail accused and made the following observations :‑ (1) His mental health was normal. (2) His physique was thin and normally developed according to his age. (3) His external organs of generation were normally developed. (4) There was no growth of hair on the face, lips and the chest. (5) There was scanty, thin growth of black hair on the axilla and pubes. (6) He had 28 permanent teeth in his mouth, (7) His penis showed no erection on manual stimulation of‑the organ. In my opinion he was 15 to 16 years old. He had reached the stage of puberty: He was physically and mentally fit to perform the sexual act. Exh. P. E. is my report". In cross‑examination the doctor stated that he gave his opinion that sodomy had been committed upon the victim on the basis of the report of the Chemical Examiner. He further admitted that had the report of the Chemical Examiner been negative, he would have said that it was a doubtful case. It is further stated by the doctor that if the surface is hard and force applied on the victim, then there is every chance that the victim would receive injuries on knee, lips and front part of the body. Injury No. 2 could be due to hard surface. The doctor however, could not say what position was adopted by the accused while committing sodomy with the. victim. It is further deposed by this witness in cross‑examination that he had no source to contact the Police Officer and, therefore, had handed over the swabs to the private party after duly sealing them. He denied the e.efence suggestion that he was deposing at the instance of complainant party and that the report was false. The complainant Mian Muhammad (P. W. 2) has stated that Muhammad Zubair, victim is the son of his nephew and since his father Allah Ditta had died, therefore, Zubair was living with him. On the day of occurrence at about degarwela, Mst. Jajra the aunt of Zubair. P. W. had gone out to bring fodder and Zubair P. W. also went after her. On the same day at about sunset time, Muhammad Amin and Abdullah P. Ws. brought Muhammad Zubair to him telling him that Muhammad Tufail, accused had committed unnatural offence with Zubair in a wnhn and the accused had run away. The following day at about 9/10 a. m. the complainant took Muhammad Zubair P. W. to the Hospital Kala Bagh for medical examination. At about 6 or 7 p. m. on the same day Muhammad Zubair was medically examined and the doctor gave him one report and sealed parcel for delivery to the police. The complainant then went to the police station and delivered the same intact to the police. He lodged the Report Exh. P. F. In cross‑examination he was confronted with Exh. P. F. He stated that he did not know if one Sanaullah the maternal uncle of the victim was accused of illicit relations with one Mst. Muridan, the cousin of the accused. He denied the defence suggestion‑ that Mst. Zaivar Khatun was murdered on account of said Sanaullah's alleged illicit relation with Mst. Muridan. He further denied any knowledge if one Sanaullah had .been challaned in that case and whether the said Sanaullah was a relative of Muhammad Amin P. W. He further deposed that Police Station Daud Khel would be at a distance of 6 miles from the place of occurrence and Daud Khel comes on the way when proceeding to Kala Bagh. He denied the defence suggestion that he had gone to the police station for reporting and discussed the affair with his friends and well‑wishers and then took the victim to the doctor on the following day. He, however, admitted that he was advised by the' friends and well‑wishers to first go to the Medical Officer and then to the police station. He contacted the Compounder who took him to the doctors. He denied the defence suggestion that he had procured the medical‑report by illegal gratification. He further denied the defence suggestion that Tufail, accused was falsely implicated on account of the alleged enmity between said Sanaullah and the relatives of Muhammad Tufail, accused. It is also denied that:.‑ the accused was involved as he had some enmity with Muhammad Amin‑P. W. Muhammad Zubair (P. W. 3) was about 9/10 years of age at the relevant time. . The trial Court before administering oath and recording his statement asked certain questions from the witness. From the answers given by the witness, the trial Court was satisfied that the witness was intelligent enough to answer the question put by the Court and, therefore, was examined as a prosecution witness after administering oath to him. Muhammad Zubair has deposed in examination‑in‑chief that his father is dead and Mian Muhammad, complainant is his grandfather. He was living in Thatti with his grandfather Mian Muhammad, complainant. Mst. Hajran was his aunt who had gone to bring fodder and he had gone to help him. At about degarwela when he had reached near tubewell Rustam Wala, Muhammad Tufail, accused suddenly appeared there, caught hold of him and forcibly took him to wahn where he laid him naked after removing‑his shalwar and committed 'unnatural offence with him, Muhammad Amin and Abdullah P. Ws. were attracted by his cries. Tufail, accused then decamped. Amin and Abdullah P. Ws. that took him to his grandfather. The following day he was taken to Civil Hospital, Kala Bagh, where he was medically examined. The complainant then went to the police station to lodge the report. In cross‑examination he denied the defence suggestion that one Javed was also there at the time of occurrence. The witness also had little bleeding and was not in a position to walk. He admitted that he had one maternal uncle whose name was Ibrahim and Sanaullah was his son. Muhammad Amin (P. W. 4) is the eye‑witness of the occurrence. He has deposed that on the day of occurrence at the relevant time he was going towards his land when he saw Tufail, accused committing unnatural offence with Zubair, victim who was raising cries. Abdullah (given up P. W.) was also with him. On seeing them the accused ran away. The witness then took the victim to Mian Muhammad P. W. who is grandfather and told him the whole story. The witness has admitted in cross‑examination that Sikandar was his 'maternal grandfather UU and Roshan was his brother. Sarfra is son. of Roshan and Mst: Khan Zadi is the daughter of said Sarfraz. Niamtullah is son of said Khan Zadi. Niamatullah is involved in a murder case of Mst. Zewar Khatun. The name of the wife of the witness was Mst. Waziran, daughter of Muzafar, who is his maternal uncle. It is admitted by this witness that Mst. Zewar Khatun deceased was cousin of Tufail 'accused but he does not know whether Tufail accused; his ' father and his uncle are P. Ws. in that murder case against Niamatullah. He further does not know whether Sanaullah son of Abdullah was accused of illicit relations with one Asst. Muridan and whether said Mst. Muridan was wife of one Ghulam Rasool. The witness claims to have seen the accused and the victim in compromising position and there was blood around the 'anus of the victim. The witness denied the defence suggestion that he was falsely deposing against the accused as there was enmity between him and the accused party. It is further denied by him that since one NiamatuMah is involved in a murder case, he was deposing against the 'accused. The witness categorically stated that he had never. seen Niamatullah and' he could say on talaq that he was stating correctly.. S. H. O. Muhammad Akram (P. W. 5) is the Investigating Officer in this case. He was. S. H. O. Police Station Daud Khel at the relevant time. The complainant Mian Muhammad reported the case to him. and on his dictation he wrote down the F. I. R. Exh. P. F. On the same day and time Mian. Muhammad, complainant. handed over to the police one parcel containing swabs and a sealed envelope and both were taken into posses sion vide Exh. P. G. The Investigating Officer visited the spot, prepared the site plan Exh. P. H. recorded the statements of the witnesses under section 161, .Cr. P. C. and arrested the accused on 10‑4‑1982. Ghulam Habib Naib Muharrir had made entry in the relevant register No. 19 against. Serial No. 51, which he handed over 'to him on 8‑4‑1982. Accor ding to the said entry in the‑register these parcels were entrusted to Esab Khan F. C. (P. W.)‑on 11‑4‑1982 for onward transmission to the Chemical Examiner, Lahore. In cross‑examination this witness admitted that register No. 19 was not prescribed register provided by the Stationery Department, Government of Punjab, Lahore. In fact he had no register and had made that register himself. The entries however, in that register were in accord ance with the prescribed form and the register had been started much earlier than this case. The entries. and the said register ‑had been checked by the Superintendent of Police but it had not been signed or initialled by any superior Officer to certify that since the proper register had not been furnished by the Government as such this register could be maintain ed. He denied the defence suggestion that register No. 19 was not pre scribed by the Government and he made it for his convenient's sake but in fact this register was prescribed in the Police Rules. This Police Officer further denied the defence suggestion that the parcels were not handed over to the Foot Constable for onward transmission to the Chemical Examiner and that Mian Muhammad P. W. bad not given him the two parcels and that is why he had not made the entries in the daily diary. It is also stated by this witness that he had been informed by the doctor on telephone that he was sending parcels but he had not entered this telephonic message anywhere in the daily diary and he had thought not essential to verify from the doctor bout the authenticity of the seal on the parcels. He denied the defence suggestion that the swabs were not genuine and had been planted in order to support the prosecution version. He has further denied the defence suggestion that one Javed son 'of Shah Wali was molesting the boy at the stating time and place and not the accused. Esab Khan F. C. (P. W. 6) on 11‑4‑1982 received on parcel and envelope duly sealed from Muhammad Hayat Muharrir and delivered the same in the office of Chemical Examiner, Lahore on 13‑4‑1982 intact. Report No. 11 in daily diary relates to his departure and contains his signatures. In cross‑examination this witness denied the defence suggestion that he had not taken the parcels relating to this case. The Public Prosecutor gave up Abdullah P. W. and Sikandar S.‑I. as unnecessary and tendered in evidence .report of the Chemical Examiner, Exh. P. C. and closed the evidence.

4. Muhammad Tufail, accused in his statement recorded under section 342, Cr. P. C: denied the prosecution allegations. When asked why this case was made against him, he stated as under :‑‑ "I have been falsely implicated in this case due to enmity. Sana ullah maternal uncle's son of Zubair victim had illicit relations with my cousin Mst. Muridan. We wanted to catch hold of Sanaullah and wanted to teach him a befitting lesson on the day of occurrence. He, however, managed his escape and I was involved in this case. We do not have any other enmity with the complainant." The accused produced in defence a certified copy of the report under sec tion 173, Ci. P. C. Exh. D. B. Muhammad Tufail, accused was tried by the Sessions Judge, Minawali, who charged him under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 19'9 (hereinafter referred to as the Ordinance) as well as under section 377, P. P. C. The trial Court vide impugned judgment dated 19‑7‑1982, acquitted Muhammad Tufail, accused under section 12 of the Ordinance but found him‑guilty under section 377, P. P. C. aid sentence him to undergo R. I. for two years and a fine of Rs. 2,000, or in default of payment of fine further R. I. for 6 months. The convict has challenged his‑ conviction and sentences through Criminal Appeal No. 18/I of 1982 while Muhammad Zubair P. W. has filed a separate Criminal Appeal No. 98/1 of 1983 praying that the conviction of Muhammad Tufail accused may be altered from section 377, h. P. C. to one under section 12 of the Ordinance and suitable punishment may be awarded to him in accordance with law to meet the ends of justice. This appeal was duly admitted for regular hearing vide order dated 30‑10‑1982 and notice of this appeal was duly served upon Muhammad Tufail convict. Since both these appeals arise out of the same impugned judgment, they shall be disposed of by single judgment.

5. We have beard at length the learned counsel for the parties and have also perused the entire material available on the record.

6. It is vehemently contended by Mr. Rab Nawaz Noon, Advocate, khe learned counsel for Tufail, convict that delay in lodging the F. I. R. has not been satisfactorily explained. In reply the learned State counsel has argued that in the circumstances of the case the delay has been explained. Zubair, victim in this case is a minor orphan, Zubair, victim is the son of the nephew of Mian Muhammad complainant. The occurrence had taken place at about 5. p. m. on 7‑4‑1982. It was in the evening that Muhammad Amin and. Abdullah P. Ws. took Zubair, P. W. to the com plainant and narrated the whole occurrence to him. Next morning the complainant took the victim to Kala Bagh for medical examination and it was after this formality that the F. I. R. was lodged on 8‑4‑1982. The fact that the Police Station Daud Khel falls on the way while going to Jala Bagb, does not prejudice the prosecution case because either the complainant himself might have thought or he might have been informed by others that in a case like sodomy the medical examination of the victim is necessary before lodging the report with the police. He, therefore, first took the victim to Kala Bagh for medical examination and then went to the Police Station Daud Khel and lodged the F.

1. R. ':his process must have consumed sufficient time. It is not denied that medical examination of the victim was necessary in this case: However, according to the defence counsel the complainant must have lodged the F. I. R. with the police and then it was for the police to get victim medically examined. It is, however, not denied that the complainant belonged to a kammi class of the village and, therefore, he must have faced some difficulties in lodging the report without prior medical examination of the victim. It is, however, not shown by the learned defence counsel, how the delay in lodging the report has been used against the accused for fabricating a false case. After taking into consideration the relevant facts and circumstances of the case, we are satisfied that the delay in lodging the report with the police has been satisfactorily explained and this has not in any way prejudiced the case of the defence.

7. Another argument advanced on behalf of the convict is that a false case has been concocted against Muhammad Tufail, accused. Reliance in this behalf is placed upon Exh. D. B. We have repeatedly asked Mr. Rab Nawaz Noon to show how the murder of Mst. Zewar Khatoon has any direct or indirect connection with the present case. He has read out this document before us several times but has not been able to show how that murder case of Mst. Zewar Khatun helps the accused in the present case and ultimately be had to admit before us that the defence has failed to connect that murder case with the present one, In such a situa tion we feel that the trial Court has rightly rejected this plea of the defence.

8. The learned defence counsel has also contended that it was some Javaid who had committed sodomy with Zubair (P. W.) but due to enmity Tufail, accused was falsely implicated in this case. We have given our anxious consideration to this defence suggestion but find no force in it. If it was some Javaid who bad committed this offence than the complainant party would have no sympathy with him and allow him to go scotfree. Sub stitution in such cases is rather difficult. This was a day time occurrence and, therefore, there could be no mistaken identity about the real culprit. It is nobody's case that the accused had muffed his face or otherwise had 'taken precaution to conceal his identity at the time of the commission of the offence. Zubair who was the victim in this case would know as to who 'committed sodomy with him. Similarly Muhammad Amin (P. W.) who is the eye‑witness in this case has clearly named Tufail, accused as the s person who committed unnatural offence with Zubair (P. W.) Moreover for false implication of Tufail, accused, there should be strong or serious enmity between the parties but the defence failed to bring any such material on the record to justify such inference. Thus, it is mere allegation of the defence which is not supported by any evidence‑direct or cir cumstantial.

9. Another argument advanced by the learned defence counsel is that the medical evidence does not support the prosecution. In this regard he has referred to the statement of Dr. Muhammad Muhstaq Ahmad (P. W. 1) who had medically examined Zubair (P. W.) as well as Tufail, accused. Although the doctor has categorically stated that Tufail, accused was physically and mentally fit to perform the sexual act yet in his report it is observed that the penis of the accused showed no erection on manual stimulation of the organ. On the basis of this observation, it is vehemently contended by Mr. Rab Nawaz Noon that the accused could not commit sexual act and, therefore, M. L. R. Exh. P. E. should be completely ignored. The doctor was subjected to lengthy cross‑examination but the defence could not shake his credibility. No doubt sexual act is not possible without erection of the male organ but non‑erection of the male organ on manual stipulation can be for more than one reasons. The counsel for the parties have referred to various books on medical jurisprudence as well as the medical dictionary in this behalf. If non‑erection of the male organ is due to the impotence then the argument of the learned defence counsel 'will have force. However, in the instant case the opinion of the doctor is that Tufail accused was physically and mentally fit to perform the sexual act and, there fore, no question of impotence arises in this case. In view of such positive and clear cut opinion of the doctor regarding potency of the accused, we have to judge whether non‑erection of male organ on manual stipulation can be for reasons other than impotence. It is mentioned in several medical book and not even denied by the learned defence counsel, that such non‑erection can be due to psychological and other factors like fear temporarily. The defence has not brought any material on the record to show that Tufail accused was really impotent or incapable of performing sexual act at the relevant time. The symptom mentioned in the observation of the doctor clearly support his conclusion that the accused was fit to perform sexual act. In the absence of any such material available on the record we find no legal justification to differ with ‑the opinion of Muhammad Mushtaq Ahmad (P. W.) that Tufail, accused, was physically and mentally fit to perform the sexual act of the relevant time.

10. The learned defence counsel has, however, argued that the M.L.R. and the report of the Chemical Examiner should not be attached any) importance for the reasons that Zubair was not medically examined through the police but on the request of the private party and the anal swab were also handed over by the doctor to the private party. As mentioned above Mian Muhammad, complainant took Zubair (P. W.) direct to the medical officer (Dr. Muhammad Mushtaq Ahmad) and got him medically examined. The doctor after taking three anal swabs, sealed them into a container and handed over the same to the complainant with the direction to deliver the same to the police for onward transmission to the Office of the Chemical Examiner, Lahore. Accordingly the complainant handed over these sealed swabs to S. H. O. Muhammad Akram (P. W.) who too the same into possession vide memo. Exh. P. G. Alongwith the sealed parcel the doctor had also written to the Chemical Examiner a forwarding letter No. C. H. K., dated the 8th April, 1982, a carbon copy of which is Exh. P. B. This sealed parcel was entrusted to F.C. Isab Khan (P. W. 6) for delivering the same in the Office of the Chemical Examiner/Lahore, and he delivered the same intact. The report of the Chemical, Examiner regarding anal swabs is positive. In these circumstances, the learned defence counsel has failed to show how the medical examination of Zubair (P. W.) through the private party. and handing over the sealed parcel of anal swabs to the same party, has prejudiced the defence. It is not shown by the defence that the complainant or the police had either tampered with or substituted the sealed parcel of anal swabs. The report of the Chemical Examiner Exh. P. C. shows that the said sealed parcel was received through D. C. Isab Khan intact.

11. As regards the merit, we find that the prosecution case is support ed by Zubair (P. W.) who at the relevant time was a minor boy of 9/10 years of age. He was subjected to length cross‑examination but his credibility could not be shaken by the defence. The learned defence counsel has not been able to point out any material on the .record to show his enmity or motive to falsely implicate Tufail, accused. After going . through his statement we find that he is a natural and truthful witness and has been rightly believed by the trial Court. He is supported by Muhammad Amin (P. W. 4) who is the eye‑witness in this case. He has E fully supported the prosecution case and had no motive to falsely implicate the accused. The statement of the victim (Zubair, P. W.) is also corro borated by the medical evidence and the report of the Chemical Examiner. Dr. Muhammad Mushtaq Ahmad (P. W.) has clearly stated that Zubair (P. V.) was subjected to sodomy. Similarly the report of the Chemical Examiner (Exh. P. C.) is positive showing that the anal swabs were stained with semen. Thus, we are convinced that the prosecution has established the guilt of Muhammad Tufail accused beyond any shadow of doubt.. He has been rightly convicted by the trial Court under section 377, P. P. C. We also maintain his conviction. The question of his sentence is discussed below in the connected appeal.

12. Now we take up the connected Criminal Appeal No. 98/I of 1982, filed by Muhammad Zubair through his counsel Mr. M. Bilal, Advocate. As mentioned above the prayer in the memo of appeal is that the convic tion of Muhammad Tufail, accused may be altered from section 3,77 to one under section 12 of the Ordinance VII of 1979 and a suitable punishment may be awarded to him in accordance with Law to meet the ends of justice: During the argument, however, Mr. M. Bilal did not press his prayer for altering the conviction of Tufail, accused from section 377, P. P. C. to one under section 12 of the Ordinance but contended that the sentence of imprisonment under section 377, P. P. C. be enhanced suitably. Even otherwise we find that section 12 of Ordinance VII of 1979 is no attracted to the facts of the instant case because taking Zubair (P. W.) from the path to a nearby wahn would not constitute kidnapping or abduction as contemplated by section 12 of Ordinance VII of 1979. On the question of quantum of sentence Mr. M. Bilal has cited several authorities including Naushad v. Jehan Zeb (1977 S C M R 234) and P L D 1959 Lah.

677. It is not disputed that any principle enunciated by the Supreme Court is constitutionally binding upon this Court. In the case of Naushad referred to above the Supreme Court of Pakistan enhanced the sentence of imprisonment from 3 months to 5 years R. I. under section 377, P. P. C. Similarly the Lahore High Court in the appeal filed by the State against Wali Muhammad, convict sentenced the accused to 5 years R. 1 under section 377, P. P. C. After taking into consideration the relevant facts and circumstances of the case and following the precedences and principal laid down by the Supreme Court referred to above, we enhance the sentence of imprisonment from 2 years R. I. to 4 years R.

1. The sentence of fine awarded by the trial Court is also maintained.

13. The result is that Criminal Appeal No. 18/I in 1983 filed by Muhammad Tufail, convict is dismissed but Criminal Appeal No. 98/I of 1982 filed by Muhammad Zubair (P. W.) against Muhammad Tufail. convict is accepted to the extent that the sentence of imprisonment of 2 years R. 1. under section 377, P. P. C. is enhanced to 4 years' R.

1. The sentence of fine ' of rupees two thousand imposed by the trial Court is also maintained. In default of payment of fine the convict shall undergo further R. I. for 6 months. M. A. K. Order accordingly.