1995 PLP 1988 (MLD)

(e) There are contradictions and infirmities in the evidence of Mst. Razia Bibi and eye‑witness Allah Rakha and on account of these contradictions and infirmities no reliance can be placed on their evidence which should have been rejected by the trial Court. (f) Medical certificate is signed by Dr. Liaqat who had examined the victim but he did not appear in the witness‑box and the said medical certificate being inadmissible in evidence cannot be relied upon by the prosecution for establishing the case against the appellant. (g) There is no report of the chemical examiner and in the absence of the chemical examiner's report confirming the prosecution version about the unnatural offence having been committed upon the victim, prosecution failed to establish its case against the appellant. (h) There is no evidence about the penetration and as such the charge of sodomy cannot be sustained.

8. Mr. Malik Muhammad Nusrat Mehal, learned counsel for the State, opposed the appeal arguing that the case had been established beyond reasonable doubt by the prosecution against the appellant. It was argued that the delay in the lodging of the F.LR. had been explained; it was not unnatural on the part of Mst. Razia Bibi and Allah Rakha to have made this incident public before the lodging of the F.I.R. out of the two witnesses, Allah Rakha had been examined and he supported, the prosecution and the non‑examination of Yasin has not reflected adversely upon the prosecution case; failure of Allah Rakha and Yasin to apprehend the appellant does not affect the veracity of their evidence; the contradictions pointed out by learned counsel for the appellant are not material or substantial to affect the evidence given by the two witnesses about the commission of sodomy upon the victim medical certificate had been proved through Dr. Khalil Ahmad who was conversant with the "handwriting of Dr. Liaqat who had examined the victim and Dr. Khalil Ahmad had identified the signatures of Dr. Liaqat on Exh.PC and, in the circumstances, the medical certificate (Exh.PC) had been properly introduced in evidence and also exhibited; non‑production of the chemical examiner's report was not fatal to the prosecution case and so also evidence regarding penetration. As regards the delay of about 2 days in making the complaint about the incident, the incident having taken place on 23‑3‑1988 whereas the report having been made by P.W.1 Umar Din on 25‑3‑1988, reliance was placed by learned counsel for the appellant on a judgment of Peshawar High Court in the case of State v. Muhammad Iqbal 1984 PCr.LJ

257. This was a case where the trial Court had acquitted the accused on account of various deficiencies in the prosecution case and the State had filed an appeal under section 417, Cr.P.C. against the acquittal. The question of delay was considered by the Court and, alongwith other deficiencies, infirmities and weaknesses in the case of the prosecution, the Peshawar High Court came to the conclusion that, in view of the evidence produced in the case, the order of acquittal of the respondent was neither perverse nor unreasonable. The judgment of Peshawar High Court relied upon by the learned counsel is no authority for the proposition that in such cases delay of two days is fatal to the prosecution case, where the child is a minor boy of 5 years and the father of the child who had gone to another city for work and was not present and the mother, waited for her husband to come back before taking a decision to lodge the report.

10. The second contention of the learned counsel for the appellant was that, during the period of two days which elapsed between the date of incident and the date of the report, neither Mst. Razia Bibi nor eye‑witness Allah Rakha mentioned or disclosed the incident to any one and this caused a doubt about the prosecution case. No principle can be laid down that, in case the matter is not reported to others till the report is lodged, the prosecution case becomes doubtful. Inference to be drawn for such non‑disclosure would depend on the facts and circumstances of the case. Both Mst. Razia Bibi and Allah Rakha have given reasons for non‑disclosure and I find that, in this case, no adverse inference can be drawn against the prosecution on account of non disclosure of the incident having taken place till the husband of Mst. Razia Bibi had come back.

11. In support of the contention that, as out of the two eye‑witnesses only Allah Rakha was examined and Yasin was not examined, a presumption is to be drawn that if Yasin had been examined he would have given evidence against the prosecution, learned counsel relied upon a judgment of the Supreme Appellate Court in the case of Kamal Athar v. State 1992 SCMR

282. However, perusal of the entire judgment shows that the judgment is not relevant to the point raised by learned counsel. In fact no such argument was raised before the Supreme Appellate Court. On this point Malik Muhammad Nusrat Mehal, learned counsel for the State relied upon a decision of the Supreme Court in the case of Ghulam Haider v. State 1983 SCMR

842. In this case two of the witnesses who had been attracted to the scene on. account of the noise had not been examined and a similar argument was raised as has been raised by the learned counsel for the appellant in the present case. In the cited judgment of the Supreme Court, it was observed as follows:‑‑‑ "As regards the non‑production of Muhammad Tufail and Munir who were not the inmates of the house but were attracted on the noise raised, no adverse inference can be drawn against the prosecution. The natural witnesses, the witnesses who would not falsely implicate the petitioner, had been produced and they had made a consistent statement against the petitioner. Non‑production of the other witnesses on the ground that they were unnecessary does not raise any adverse presumption against the prosecution case as such." In the facts of this case, where Mst. Razia Bibi and Allah Rakha have been examined, I am of the view that no adverse inference is to be drawn against the prosecution for not examining Yasin.

12. I also find no merit in the contention raised on behalf of the appellant that as no attempt had been made by Allah Rakha to apprehend the assailant, the testimony of such witness is to be rejected as not trustworthy. It has to be observed that different persons react differently in a situation. A person, on witnessing a crime being committed, may rush towards the place of incident with the intention of saving the victim from the assailant or other offence being committed by the assailant, and another person may react differently by just watching the incident and not helping the victim. Just because Allah Rakha failed to make any effort to apprehend the appellant is not a sufficient circumstance to treat his evidence as untrustworthy.

13. Medical certificate issued by Dr. Liaqat (Exh. PC) about the examination of the victim and the internal injuries suffered by him was introduced in evidence during the evidence of Doctor Khalid Ahmad. In his examination‑in‑chief, P.W.8 Khalil Ahmad had stated that he recognized the handwriting of Dr. Liaqat on the medico‑legal report about the victim, Muhammad Siddique. The entire cross‑examination of Dr. Khalil Ahmad conducted on behalf of the appellant is reproduced here:‑‑‑ "I know that Dr. Nisar (who had conducted the examination of the appellant to determine his potency) and Dr. Liaqat are on ex‑Pakistan leave. This has been stated to a question `are you in a position to inform about their inavailability'? I have no information whether the said Doctors have visited Pakistan or not. It is correct that I would be in a position to reply to the particular questions about the medical report Exh.PC. It is very rare that severe constipation causes laceration on the anal's region. It is correct that inside part of anus is delicated. If the patient suffers from prolapse of rectum is reduced rough that causes laceration." From the examination‑in‑chief of Dr. Khalil Ahmad it transpires that when the medical report of Dr. Liaqat was produced, an objection had been raised about its admissibility and the trial Court observed that the point will be taken at the time of arguments. Learned counsel for the appellant submitted that, in the judgment of the trial Court, this point of admissibility of Exh.PC had not been decided and the said point keeping legal‑should have been decided before the medical report was relied upon against the appellant. It is correct that the trial Court's judgment does not indicate that the question of admissibility of Exh.PC was specifically dealt with but then, in the cross‑examination of Dr. Khalil Ahmad, in answer to a question, the witness stated that Dr. Liaqat was on ex‑Pakistan leave. In his examination‑in‑chief, he had already stated that he recognized the handwriting of Dr. Liaqat on the medico‑legal report of the victim. Then questions on the medical report were also asked as is evident from the cross‑examination which has been reproduced above. The Doctor stated in his evidence that he recognized the handwriting of Dr. Liaqat of Narowal Hospital, where the witness had been serving as a medical officer at the time of the incident, and then in cross‑examination, in answer to a question whether Dr. Liaqat was not available to give evidence, the witness replied that he knew that Dr. Liaqat was on ex‑Pakistan leave. In the circumstances, I am of the view that Exh.PC was admissible in evidence and no illegality has been B committed by the trial Court in relying upon the said medical certificate. In this connection reference may be made to a decision of the Supreme Court in the case of Sirajud Din v. Misbahul Islam (PLD 1977 SC 14) cited by learned counsel for the State. The following passage from the judgment of the Supreme Court supports the contention of the learned counsel for the State that, in the present case the medical report, was admissible in evidence and had been rightly relied upon by the trial Court: "Lastly the learned counsel contended that the participation of the second respondent was not established as the post‑mortem report was inadmissible in evidence. Elaborating his stand the learned counsel contended that it has not been strictly proved that Doctor Muhammad Yamin Khan, who had performed autopsy on the body of the deceased, was not available for giving evidence at the trial. In support of his contention he relied on the case of Allah Ditta v. The State (PLD 1958 SC (Pak.) 290) in which it was held that `in the absence of any direct evidence the mere declaration that `delay and unnecessary adjournment' would be involved in procuring the appearance of Lala was not sufficient for satisfying the relevant conditions of section 33 aforesaid which is that it should have been proved that the witness could not be found', and as such his evidence was held to be inadmissible. The present case is distinguishable, for, Fateh Muhammad (P.W.4) the Dispenser has categorically stated that Doctor Muhammad Yamin Khan had gone to Saudi Arabia and there was no likelihood of his return in the near future. He was not cross examined to cast doubt as to his not being in Pakistan, and therefore, the rule laid down in the case of Allah Ditta v. The State will not apply, for, in that case there was not definite proof of the witness not being available."

14. In support of the contention that as the medical examiner's report regarding the presence of semen in swabs taken at the time of medical examination of the victim had not been produced in the evidence, the prosecution had not established its case of sodomy against the appellant, learned counsel for the appellant relied upon two reported decisions. First is the judgment of the Sindh High Court in the case of Ghulam Qadir v. State (1985 PCr.LJ 256). In this case, appellant Ghulam Qadir was convicted under section 377, P.P.C. by a Magistrate and the judgment was confirmed by the Additional Sessions Judge who dismissed the appeal filed by Ghulam Qadir. He came in revision before the Sindh High Court and the High Court set aside the two judgments of the Courts below on the following reasoning:‑‑‑ "The learned counsel for the applicant has argued that the important evidence that of the report of the Chemical Examiner was not put in evidence. According to him, that report is material evidence for either corroborating the prosecution evidence or contradicting it. The learned A.A: G. states that it appears from papers that report of the Chemical Examiner was obtained but it seems to have been misplaced and it was not put in evidence. Since the case of the prosecution mainly rests on the evidence of the victim boy, the report of the Chemical Examiner would furnish important evidence either in corroboration of the evidence of the victim boy or in contradicting it and lead to a just decision of the case. Accordingly, the judgments of the Courts below and conviction of the appellant and the sentence awarded on him are set aside and the case is remanded to the Additional City Magistrate, Sukkur, for putting in evidence the report of the Chemical Examiner and give decision afresh." This judgment is distinguishable as apart from the victim boy there was no other evidence. In the present case, there is an eye‑witness, namely, Allah Rakha and Mst. Razia Bibi mother of the boy, who had reached the scene immediately after Allah Rakha. The other judgment relied upon by learned counsel for the appellant in support of the proposition that, in the absence of the chemical examiner's report the prosecution had failed to establish its case, is the judgment of a learned Single Judge of this Court in the case of Muhammad Ali v. State reported in 1987 PCr.L1671. The facts in the case are distinguishable and no rule has been laid down that, in the absence of the report of the Chemical Examiner, a case of Zina or sodomy cannot be established. Here reference may be made to the judgment of the Peshawar High Court in the case of State v. Muhammad Iqbal (1984 PCr.LJ 257). It has been referred in the earlier part of this judgment, as it had been relied upon by the learned counsel for the appellant in support of another contention dealt with above. In the said case, as observed, the State had filed appeal against the acquittal and, on behalf of the State, reliance was placed on the Chemical Examiner's report which was to the effect that the swabs were stained with semen. Apart from giving other reasons for not relying upon the Chemical Examiner's report, the Peshawar High Court gave the reason that the possibility of the complainant having passed the stools in between 25th November and 28th November, 1980, could not be excluded and in case of passing the stools it was difficult to believe that the swabs taken from the rectum of the complainant on the third day of the occurrence would be stained with semen. In the present case, the incident is of 23‑3‑1988 whereas the medical examination had taken place on 25‑3‑1988. According to Mst. Razia Bibi, she had given a bath to the child and had also washed his blood‑stained clothes. In the two days which elapsed before the medical examination took place, the victim must have passed the stools. C Absence of the chemical examiner's report, in the circumstances, is not fatal to the prosecution case.

15. The next contention of the learned counsel for the appellant was that there is no evidence to establish penetration and as such the charge under section 377, P.P.C. had not been proved against the appellant. Reliance was placed on the judgment of the learned Single Judge of this Court in the case of Muhammad Ali 1987 PCr.LJ 671 relied upon in support of another contention. In the said case, it was held that penetration is essential ingredient in the offence of Zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The facts are clearly distinguishable from the facts of the present case. Secondly, the present is a case under section 377, P.P.C. where the victim was so young that his evidence was not recorded by the trial Court, but then there was evidence of Allah Rakha an eye‑witness, evidence of Mst. Razia Bibi, victim's mother and the medical evidence. Absence of direct ocular testimony about the penetration is not mandatory to establish a case under section 377, P.P.C. against the accused if other evidence otherwise establishes the prosecution case against the accused beyond reasonable doubt.

16. Finally, learned counsel referred to certain contradictions in the evidence adduced on behalf of the prosecution. It was pointed out by learned counsel that, in the evidence of Allah Rakha and Mst. Razia Bibi, there are contradictory statements as to whether the appellant had run away from the door or having scaled the wall. In my view, explanation given by learned counsel for the State is correct that, as the sodomy was committed in a room, the appellant must have escaped from the door and then scaled over the wall of the house to avoid arrest. Even otherwise, in the facts of this case, this is not such a contradiction to affect the prosecution version given by Allah Rakha and Mst. Razia Bibi.

17. It was then pointed out that the blood‑stained shirt of the victim was not produced. In view of evidence of Mst. Razia Bibi who had carried her son and had then given a bath to the boy and washed blood‑stained shirt, the absence of blood‑stained shirt is of no consequence. It was also submitted that there was contradiction about whether the area was populated or not, but this contradiction does not affect the prosecution version about the commission of sodomy upon the victim.

18. The prosecution case has been established through the evidence of eye‑witness Allah Rakha, victim's mother Mst. Razia Bibi and the medical evidence. The reason given by the appellant in his statement under section 342, Cr.P.C. pleading false implication was that he had seen Mst. Razia Bibi and Allah Rakha in a compromising position as they had developed illicit relations and he had narrated the story to others, has no substance. If this was the defence, at least suggestion should have been made to both Allah Rakha and Mst. Razia Bibi in that regard. Admittedly, no such question was put to Allah Rakha in the cross‑examination and Mst. Razia Bibi. The only question about false implication put to Allah Rakha was that he was giving false evidence as he was from the same "Biradari" as the complainant.

19. As a result, I find no merit in this appeal which is dismissed. The appellant is on bail. His bail is cancelled. He may be taken into custody to serve out his sentence. N.H.Q./997/FCS Appeal dismissed.