2025 PLP 2439 (YLR)

Muhammad Waheed Khan, J.

Through this appeal, Muhammad Shafiq alias Pheeqi (appellant), has challenged his convictions and sentences awarded to him by the learned Additional Sessions Judge, Arifwala District Pakpattan Sharif, vide judgment dated 18.07.2017, in case FIR No.60 dated 08.02.2015, registered under sections 377, 367-A P.P.C at Police Station Qabula Sharif, Tehsil Arifwala District Pakpattan, whereby he was convicted and sentenced under the above-said offences for rigorous imprisonment for five years, each with fine of Rs.10,000/-, each. Both the sentences were ordered to run concurrently.

2. Facts of the case are that on 31.01.2015 at about 2:00 P.M. Mohammad Shafique alias Pheeqi (appellant) along with his co-accused, namely, Mohammad Waqas, Ghulam Hassan alias Goga and Akhtar Rasool, persuaded son of the complainant, namely, Asif Shahzad, for sodomy and on his refusal, they took him in the 'Beithak' of Waqas, co-accused where, Muhammad Shafique alias Pheeqi (appellant), forcibly committed sodomy with him, while Ghulam Hassan alias Goga and Akhtar, co-accused were guarding the incident with their weapons. On hue and cry raised by the victim Asif Shahzad, PWs Mubashar and Aslam attracted at the place of occurrence, witnessed the same and tried to catch hold the accused persons but they fled away, hence, this case.

3. After registration of formal FIR (Ex.P-A/1), investigation was carried out and challan was submitted to the Court concerned. Thereafter, formal charge was framed, to which the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as seven witnesses. Complainant Mst. Salma Bibi appeared as PW-1; Muhammad Asif Shahzad (victim) appeared as PW.2; Mohammad Aslam, eye-witness appeared as PW.3; Ahsan Haider, ASI/Investigating Officer of the case appeared as PW-4; and besides other witnesses, Dr. Asif Jalees appeared as PW.7. The prosecution after producing certain documents closed its evidence. After completion of prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C., in which he denied the allegation levelled against him by the prosecution. He neither opted to appear as his own witness under section 340 (2) Cr.P.C., nor produced any evidence in his defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct "beyond any shadow of doubt", which resulted into conviction and sentence of the appellant in the afore stated terms.

4. In support of the instant appeal, learned counsel for the appellant has contended that the prosecution story is inherently flawed and failed to inspire confidence as there are material contradictions in the statements of the prosecution witnesses; that the impugned judgment is based on surmises and conjectures as material evidence available on record in favour of the appellant has been mis-read; that the medical evidence is contradictory to the prosecution evidence and lastly prayed that by accepting the instant appeal the appellant may be acquitted of the charge.

5. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has faithfully defended the impugned judgment by controverting the arguments of learned counsel for the appellant and has contended that the prosecution has ably proved its case against the appellant "beyond reasonable shadow of doubt"; that to substantiate the case of the prosecution apart from other evidence, the prosecution has adduced PW.3 who is an independent witnesses and also produced the victim and their evidence fully supports the prosecution case, so, in presence of voluminous evidence, the appellant had rightly been adjudged guilty by the learned trial Court, hence, the instant appeal is liable to be dismissed.

6. I have heard the arguments of learned counsels for parties, perused the record with their assistance and noticed that Muhammad Shafiq alias Pheeqi (appellant), was booked in the above-said criminal case on the charge of committing sodomy with one Muhammad Asif Shahzad, aged about 13-years (at the time of incident) on 31.01.2015 at about 2:00 p.m. in the area of Timber Market, Qabula Tehsil Arifwala District Pakpattan. As per contents of the FIR, Muhammad Waqas (since died), Muhammad Shafiq alias Pheeqi (present appellant), Akhtar Rasool and Ghulam Hassan alias Goma had committed unnatural offence/sodomy with the son of complainant and also filmed the incident on mobile phone which later on, was up-loaded on the social media. Although, a serious allegation of committing sodomy has been levelled against the present appellant but on going through the record, it is noticed that the victim Muhammad Asif Shahzad (PW.2) was medically examined on 08.02.2015, eight days after the occurrence by Dr. Asif Jalees. On going through his testimony, it is noticed that he has observed no marks of violence on elbow and knee of the victim; no marks of violence were seen around anal region of the victim; no tenderness, no swelling was observed. Three anal swabs were taken and sent to the Chemical Examiner for detection of semens and DNA analysis and final opinion was reserved till receiving of the reports. However, no seminal material was found present on the item sent to Punjab Forensic Science Agency, vide report of Punjab Forensic Science Agency Ex.PH. While responding to the query put by learned defence counsel, he himself admitted that no seminal material was identified according to the report of Punjab Forensic Science Agency and that he cannot tell anything whether sodomy was committed with the victim or not, meaning thereby that the medical evidence is not in line with the prosecution case rather it contradicts the same. Muhammad Asif Shahzad, victim of the case also deposed before learned trial Court as PW.2 but as stated above, the stance taken by the prosecution was not supported by the medical evidence.

7. I have gone through the impugned judgment and noticed that learned trial Court in Paragraph No.14 had mainly relied upon the video recording CD which was exhibited before learned trial Court as Ex.P-1. This film was watched by learned Presiding Officer in the Court showing that the appellant was committing sodomy with PW.2, and Muhammad Waqas, co-accused (since died) was present at the spot while making video of the incident, so, learned trial Court, while relying upon the said piece of evidence, convicted the appellant and his co-accused Muhammad Waqas, who, later on died during the pendency of his appeal and the appeal filed by him (Crl. Appeal No.58004/2017) stands abated by this Court vide order dated 13.05.2025. Crux of arguments of learned counsel for the appellant is that video film exhibited and relied upon by learned trial Court was of no help for the prosecution as the same has not been forensically tested. When confronted, learned Law Officer, assisted by learned counsel for complainant, candidly admitted that the said video film taken into possession by the police during the course of investigation, was never sent for forensic analysis, so the conclusion is inescapable that video in question, is not aboveboard especially in the backdrop when the prosecution case has been totally belied by the medical evidence. The other aspect of the case is that the alleged occurrence took place on 31.01.2015, whereas the FIR was lodged with a noticeable delay of eight days on 08.02.2015 and this inordinate delay in lodging the FIR remained unexplained on the part of the prosecution. This factum alone creates serious doubt not only about the veracity of the prosecution case but also suggests that consultation and due deliberation was made before lodging the FIR. Learned counsel for appellant submits that during the pendency of pre-arrest bail of the appellant, both, complainant Mst. Salma Bibi (PW.1) and victim Muhammad Asif Shahzad (PW.2), tendered their duly sworn affidavits before learned trial Court wherein they had denied happening of the alleged occurrence with the assertion that appellant was not their accused. Today, both, the victim and his mother/ complainant are present before this Court and submit that they have nominated the present accused/appellant on account of some confusion and they have got no objection, if, the appellant is acquitted from the charge. So in the light of supra discussion, the conclusion is irresistible that the prosecution remained fail to prove its case 'beyond reasonable shadow' of doubt. As discussed earlier, the prosecution case is replete with number of doubts, such as conflict in the ocular account and medical evidence, there was no forensic report qua the authenticity of video film, so, the benefit of such loopholes/ lacunas in the prosecution case must go in favour of the accused.

8. The prosecution is supposed to prove its case against the accused beyond 'reasonable shadow of doubt' and if any reasonable doubt arises from the prosecution story, the same shall be resolved in favour of the accused, so while relying upon the judgments passed by the august Supreme Court of Pakistan in cases of "Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others" (2019 SCMR 79), "Muhammad Akram v. The State" (2009 SCMR 230), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Tariq Pervez v. The State" (1995 SCMR 1345), I have reached to an irresistible conclusion that the prosecution remained unable to prove its case against the appellant according to the dictates of law.

9. In sequel to the above discussion, the convictions and sentences arded by the learned trial Court should not be allowed to stand. herefore, the instant appeal is allowed and convictions and sentences awarded to the appellant Muhammad Shafiq alias Pheeqi (appellant) through the impugned judgment are set aside and he is acquitted of the charge. He is on bail, so, his surety stands discharged from the liability of bail bond. JK/M-108/L Appeal allowed.