2006 P Cr (PLP)

SAEED-UR-REHMAN FARRUKH, J.

This appeal is directed against the judgment dated 12-5-2003, passed by Additional Sessions Judge, Gujranwala whereby the appellant was convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to ten years' R.I. with a fine of Rs.25,000 or in default to further undergo two years' R.I. He was further convicted under section 377, Pakistan Penal Code and sentenced to ten years' R.I. plus fine of Rs.25,000 or in default thereof to further undergo two years' R.I. Both the sentences awarded to the appellant, were ordered to run concurrently. Benefit of section 382-B, Criminal Procedure Code was extended to the appellant.

2. Prosecution case, as divulged in the written complaint Exh.P.A. submitted by Muhammad Siddique P.W. (later on reduced into formal F.I.R. Exh.P.A./1) was; on 2-11-2001 the complainant had gone to cut fodder for his animals at the Dera of Malik Muhammad Hussain and asked his two grandsons Waqas Ahmad and Hassan Bilal to follow him on a cart. Both these brothers sat on the cart and were on their way to the Dera of Malik Muhammad Hussain when the appellant, who was riding bicycle confronted them. He made both Waqas Ahmad (victim) aged about 12/13 years and his brother Hassan Bilal to disembark from the cart. He caught hold of Waqas Ahmad from his throat and put a pistol on his head. He dragged Waqas Ahmad for a distance of about 2 acres and took him into a room behind the tubewell of Master Muhammad Ashiq. He forcibly undressed Waqas Ahmad and started to commit sodomy with him. Hassan Bilal ran of the Dera of Malik Muhammad Hussain and informed the complainant about this occurrence on which he and Muhammad Yousaf (not produced) rushed there. They saw the appellant committing sodomy with Waqas Ahmad. They were still at a short distance from the place of occurrence when the appellant fired with his pistol at them. Then he released Waqas Ahmad, took his bicycle and fled away making aerial firing with his pistol.

3. After registration of the case the investigation was initiated and the appellant was arrested. The police took the victim to the hospital and got him medically examined. After completion of the investigation, the appellant was challaned to Court.

4. On 2-12-2002, the appellant was charge-sheeted for offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, Pakistan Penal Code. He denied the allegations, pleaded not guilty and claimed trial.

5. At the trial, statement of Muhammad Siddique was recorded as P.W. He supported the prosecution story about commission of sodomy with Waqas Ahmad by the appellant. He stated that the victim was taken to the hospital for medical examination and he was with the police at that time. He was cross-examined at great length. He admitted that, the police did not visit the place where Muhammad Yousaf P.W. was cutting fodder at the relevant time. He also admitted that Malik Muhammad Hussain Virk was not joined by the police in the investigation. He conceded that he got registered a case No.775 of 1998 under section 452/34, Pakistan Penal Code against Abdul Qayyum son of Abdul Latif and Asmat Ullah son of Sharif, regarding obscene acts committed by them with his grandson Zaheer Ahmad (brother of Waqas Ahmad victim). He also admitted that the said case was patched up due to intervention of the respectables. He was questioned as to whether a case under section 392, Pakistan Penal Code was got registered by him against Mullan and Akram sons of Abdul Latif. His answer was in the affirmative but explained that the case was registered 2-1/2 years prior to the present occurrence. He denied the suggestion that the case was also patched up by getting some money from the accused. According to him, the case was still under adjudication before the trial Court. He was then questioned as to whether a case was registered at Police Station Noshera Virkan against the father of the appellant namely Bashir for murder of one Mushtaq. He admitted this fact but repelled the suggestion that he pursued the case. According to him, this case was "decided on compromise". He admitted that Muhammad Yousaf (cited P.W.) appeared before the police and stated that he was not cutting fodder at the relevant time and did not witness the occurrence. According to him, he was at a distance of 10 Karams when appellant fired at them. He denied the suggestion that he had involved the appellant with mala fide intention in this case and had been demanding money from the parents of the accused for compromise.

6. Waqas Ahmad aged about 12/13 years victim in the case appeared as P.W.2. He deposed that on 2-11-2001 at about 8/9-00 a.m. He along with younger brother namely Hassan Bilal was going to their grandfather Muhammad Siddique to cut fodder. When they reached the bridge of Khal the appellant came there on a bicycle with a pistol in his hand. He deboarded them from the donkey cart, and put his pistol on his pinna and dragged him to the tubewell room at the distance of "less than one acre". He further deposed that he was forcibly undressed and subjected to unnatural offence by the appellant. He raised hue and cry and his younger brother Hassan Bilal ran toward his grandfather. After some time his grandfather Muhammad Siddique P.W. 1 and Muhammad Yousaf (given up) came there along with Hassan Bilal. On seeing them the appellant made aerial firing and ran away, The witness further deposed that he was medically examined by the doctor in the hospital on same day. He was cross-examined at some length. Some minor discrepancies were highlighted between his statement made before the police (Exh.D.A.) and his statement in Court. He deposed that the police visited the spot on the same day and carried out some investigation. He denied the suggestion that a quarrel had taken place between him and the appellant prior to this occurrence and that "after getting fake and fictitious medical certificate" a false case was got registered against him.

7. Dr. Ghulam Mustafa, Medical Officer, R.H.C., Noshera Virkan P.W.3 deposed that he medically examined the appellant on 13-5-2002 for potency and found him fit to perform sexual intercourse, vide Medico-legal report (Exh.P.C.). Statement of Waris Ali, A.S.-I. P.W.4 and Riasat Ali Constables, P.W.5 are of formal nature and need to be dilated upon.

8. P.W.6 Muhammad Ilyas, A.S.-I. deposed that on 5-11-2001 he was posted at Police Station Noshera Virkan and on receipt of application (Exh.P.A.) he prepared formal F.I.R. (Exh.P.A./1). He then proceeded to place of occurrence and carried out necessary investigation. The appellant could not be apprehended despite search for him. On 7-5-2002 he received information that the appellant was detained in judicial lock-up in case F.I.R. No.124 of 2002 registered at Police Station Sadar, Kamonke. He went there and arrested the appellant after seeking permission from the Ilaqa Magistrate.

9. During the course of cross-examination he admitted that he had not visited the field where the complainant along with Muhammad Yousaf (given up) P.W. were busy in cutting fodder at the time of alleged occurrence. He admitted that first version of the appellant before him was that he quarreled with Waqas Ahmad P.W. and gave him a slap. It was due to grudge that he was involved in the case. Manzoor and Siddique Masih appeared before him and supported the plea of innocence of the appellant. They also submitted their affidavit in this regard. He conceded that Muhammad Yousaf (given up) P.W. was found, during the course of investigation, to be not present near the place of occurrence. He did not take into possession the clothes of Waqas Ahmad (victim) during the investigation.

10. Dr. Ghulam Mustafa, Medical Officer, R.H.C., Noshera Virkan appeared as P.W.7 and deposed that on 2-11-2001, he medically examined Waqas Ahmad (victim) aged about 11 years and found the following injuries:-- (1) Anus was patulous. (2) Anus was bruised from the outer side. (3) There was an abrasion 1/2 x 1/2 c.m. at 2'O Clock position on inner side of the inner canal. (4) There was redness on the both knees. (5) Semen stains were present on the Shalwar.

11. The doctor took three anal swabs for chemical analysis. He proved his Medico-legal report (Exh.P.E.), which bore his signature. He went on to state that in view of the report of Chemical Examiner (Exh.P.F.), which was before him, the swabs were found to be stained with semen and one swab was being sent to the Serologist for semen grouping. In the light of the observation of the Chemical Examiner, he was of the opinion that act of sodomy had been committed with Waqas Ahmad (victim). During the cross-examination he denied the suggestion that injury No.4 (referred to hereinbefore) was self-inflicted. According to him, it was not possible to create these type of injuries. He admitted that though Shalwar (of victim) was stained with semen, yet the same was not taken into possession. He denied the suggestion that he prepared fictitious Medico-legal report in connivance with the complainant party.

12. After closure of the prosecution evidence, the statement of the appellant was recorded under section 342, Criminal Procedure Code. In reply to the question as to why the case had been registered against him, he stated that a quarrel had taken place between him and Waqas Ahmad (victim) prior to this occurrence and on account of this quarrel fake and fictitious Medico-legal report was obtained and he was falsely implicated in this case. He contended that Muhammad Siddique was Secretary of Union Council and he got registered a case F.I.R. No.775 of 1998, dated 11-11-1998 under section 452/34, Pakistan Penal Code against Abdul Qayyum and another wherein he levelled allegations of obscene acts with one Zaheer Ahmad, his grandson but the said case was patched up after obtaining some money from the accused. He further alleged that the complainant also got registered a case under section 392, Pakistan Penal Code at Police Station Noshera Virkan 2-1/2 years after the alleged occurrence in this case. That case was also patched up after extracting some amount from the accused. He went on to state that yet another case under sections 302/148/149, Pakistan Penal Code was registered at Police Station Noshera Virkan and the complainant (in this case) pursued the said case. He alleged that in the present case complainant demanded money from his parents but they refused to oblige. He stated that he would not like to produce any defence evidence nor would appear in his own defence as witness under section 340(2), Criminal Procedure Code.

13. On 26-4-2003 the appellant tendered in defence; (i) Attested copy of F.I.R. No.775 of 1998, dated 11-11-1998 under sections 452/ 506/34, Pakistan Penal Code (ii) Attested copy of F.I.R. No.313 of 1999 under section 392, Pakistan Penal Code registered at Police Station Noshera Virkan as Exh.D.B. and Exh.D.C. and closed his defence evidence.

14. I have heard the learned counsel for the parties and perused the record with their assistance. It is contended by the learned counsel for the appellant that Muhammad Siddique grandfather of Waqas- Ahmad (victim) was a habitual litigant and used to indulge in blackmailing, firstly by involving people in false cases and then patching up the matters by extracting money from them. It is also urged that Muhammad Siddique could not have witnessed the occurrence, he being at quite a distance from the alleged place of occurrence and thus his testimony could not be believed. It was also pointed out that Muhammad Yousaf (cited eye-witness) was withheld by the prosecution. Lastly, it was submitted that the evidence of Waqas Ahmad was not reliable, he being a child witness and, keeping in view the inherent improbabilities in his statement, the same merited to be discarded. On the other hand the learned counsel for State stoutly defended the impugned judgment. He urged that Waqas Ahmad (victim) had given a cogent and consistent account of the occurrence, which was duly corroborated by the testimony of Muhammad Siddique complainant and the doctor's evidence.

15. I find no merit in this appeal. Perusal of the evidence on record shows that the main thrust of the defence was to impeach the character of Muhammad Siddique complainant by showing him to be a professional litigant who would involve innocent persons in false cases, which always ended in compromise after he obtained monetary benefits. Muhammad Siddique was closely questioned in this regard with suggestions that he used to take money from the accused party and then arrange compromise. The appellant tried to prove that the case against him was also fabricated by Muhammad Siddique with ulterior motive.

16. In my view, whether or not Muhammad Siddique was instrument/responsible for registration of some criminal cases, earlier, is immaterial for adjudication of the present appeal. Be that as it may, Muhammad Siddique refuted the suggestions of receiving money qua those cases. Significantly, no evidence, whatsoever was brought on record to support the plea regarding character of Muhammad Siddique.

17. The main witness in the case is victim Waqas Ahmad (P.W.) himself. He at the time of occurrence, was aged about 11 years and was competent witness to depose about the alleged occurrence. It is in his testimony that the details of the reprehensible occurrence have been vividly brought on the record. He deposed that he was accompanied by his younger brother Hassan Bilal and they were riding a donkey cart so as to fetch fodder which their grandfather was cutting at the Dera of Malik Muhammad Hussain Virk. The appellant came across them. He forcibly debarred Waqas Ahmad (victim) from the donkey ,car and B dragged him for about one acre to the room behind the tube-well of Master Muhammad Ashiq. Then, at pistol point, the appellant committed sodomy with him. Waqas Ahmad stood the test of cross-examination successfully. He gave consistent and cogent replies to the searching questions by the defence. No reason could spelt out from the record to disbelieve his testimony. The presence of Muhammad Siddique complainant at the spot when his grandson was being subjected to sodomy by the appellant was natural. His testimony also inspires confidence and lends corroboration to the statement of Waqas Ahmad victim.

18. That is not all. The statement of Dr. Ghulam Mustafa, Medical Officer R.H.C. Noshera Virkan, who medically examined the victim coupled with C positive report of the Chemical Examiner, which was positive lends further support and corroboration to the testimony of Waqas Ahmad victim.

19. The appellant took up wholly artificial and concocted plea in his statement under section 342, Criminal Procedure Code of having quarrelled with Waqas Ahmad earlier and giving him a slap, which led to his false implication in the case. This plea is worth little consideration. No reasonable person would imagine that owing to such a trival incident. Muhammad Siddique could have gone to the extent of involving his grandson in the matter with the accusation that he was subjected to this nefarious act by the appellant. Significantly, neither any defence evidence was led nor the appellant entered the witness-box to depose on oath, in disproof the prosecution allegations.

20. Before concluding, I may observe that the appellant absconded after the occurrence and remained untraceable for more than six months. It was Muhammad Ilyas, A.S.-I. P.W.6, who per chance learnt that the appellant was in judicial lock-up in connection with another case at Police Station Sadar Kamonke. The appellant ran away from the village and remained in hiding for a long time before being arrested by the c police in this case. Prolonged abscondance of the appellant is also a factor to reckon with for holding him guilty.

21. The learned trial Judge has taken pains to appraise the evidence on record in a careful manner. He neither misread nor omitted from consideration any material piece of evidence. The conclusion drawn by him from the evidence/material on record were fully justified, in the circumstances of the case. Accordingly, I uphold the conviction of the appellant, as recorded by the learned trial Court.

22. However, the question of the sentence needs consideration. The sentences awarded to the appellant appear to be excessive. In my view, the ends of justice would be met if the substantive sentences are reduced from ten years to seven years and sentence of fine is also reduced from Rs.25,000 to Rs.12,000 on each count or in default to further undergo six months S.I. on each count, both sentences to run concurrently. The amount of fine, if recovered, shall be paid to the victim as compensation. Benefit of section 382-B, Criminal Procedure Code granted to the appellant, by the trial Court, shall remain intact. With the above modification In the sentences, the appeal is dismissed. The above are the reasons for the order, dated 25-5-2004. H.B.T./13/FSC??????????????????????????????????? ??????????????????????????????????????????????? Order accordingly.