1991 P Cr (PLP)

6. The Medical Officer had examined Allah Ditta and had reported as follows:-- "(1)????? Body examined. No scratches, cut mark or wounds present on body. (2)??????? Anal examination done. (i)???????? External examination of anus done. No laceration or congestion at anal margin seen. Perianal hair not meted together. (ii)??????? On digital examination no tenderness present and finger stall was not stained. (iii)?????? On protoscopy nothing was detected. Note: Thick stain present at Shalwar Qamiz. Two anal swabs were taken for chemical examination from Lahore." He had further deposed that anal swabs were taken and sent to the Chemical Examiner, Rawalpindi. The report of the Chemical Examiner indicated the same as having been stained with semen. Qamiz and Shalwar of Allah Ditta also were found stained with semen. The report of the Chemical Examiner is placed on record as Exh.P.G. In view of the record of the Chemical Examiner the Medical Officer recorded the report Exh.P.E./1, which reads as under:-- "As per report of the Chemical Examiner, Rawalpindi, the anal swabs were stained with semen which depicts the definite proof of sodomy."

7. Allah Ditta P.W.1 deposed that about four months ago at about 11-00 a.m. he was present at Mehr Shah Wali where his paternal-aunt resides. He was proceeding to Mela Mandi and on the way some unknown person had committed sodomy upon him and then he went away. He came at the metalled road and started weeping while standing on the roadside. Tariq Khan, accused, came there and he took him to the police station. There Tariq Khan, accused, and the local police exchanged some hot words. Tariq Khan, accused, however, had not committed sodomy upon him. He, however, admitted his thumb-impression on complaint Exh.P.A. but according to him, police after having recorded it, had not read it over to him. In this manner the witness had turned hostile. The learned S.P.P. requested that said P.W. had suppressed the truth and therefore, he may ' be allowed to cross-examine him. This request being genuine, the witness was i declared hostile and was subjected to cross-examination by the S.P.P. He, however, denied having made statement before the police that Tariq Khan, accused, had committed sodomy upon him. He also denied that due to compromise having been effected he had exonerated the accused. In nutshell, the complainant admitted having been subjected to sodomy but according to his statement before the Court the accused was some unknown person and it was not Tariq Khan, accused, about whom reference is made in the F.I.R. He, however, admitted that Tariq. Khan, accused was present at the roadside where he was present after the occurrence.

8. Muhammad Ashraf S.I. P.W.7 has deposed that he alongwith other police officials was on patrol duty for checking illicit arms and intoxicants and that police party was going towards Sultan Khel. When they reached Baruch Wahn, they heard noise. They went to the spot and saw that Tariq Khan, accused, was busy in committing carnal intercourse with Allah Ditta. He, therefore, recorded statement of Allah Ditta vide Exh. PA. and sent to the police station for formal registration of the F.I.R. He inspected the spot and prepared site plan Exh. P.J. He also took into possession Truck No.6571-PRG alongwith its papers vide memo. Exh. P.B. and Exh. P.C. respectively. He got Allah Ditta medically examined through Nawab Khan Constable. He also got two sealed parcels containing semen stained clothes of Allah Ditta, complainant/victim and the other parcel contained swabs. He took the same into possession vide memo. Exh. P.D. He recorded statements of eye-witnesses and had challaned the accused under section 377, P.P.C. and under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

9. The learned trial Court, placing reliance upon the evidence of the prosecution witnesses, and ignoring the testimony of P.W.1 Allah Ditta, complainant/victim, on the ground that he being a minor may have been influenced by his elders as a result of a compromise with the accused not to support the case of the prosecution, convicted and sentenced the appellant as stated above.

10. Learned counsel for the appellant and the State have been heard at length and the record of the case perused with their assistance.

11. The learned counsel for the appellant submitted that the star witness of the prosecution, namely, the complainant/victim, P.W.1 Allah Ditta, has not supported the case of the prosecution. Further submitted in this respect that although the said witness was subjected to cross-examination after having been declared hostile yet the prosecution failed to elicit anything thereby to its advantage. Further submitted that the medico-legal report does not support the version of the prosecution in any manner, for, according to the medico-legal report, it is not established that any penetration has taken place which is essential requirement for the offence charged to be established in accordance with the explanation stated in the relevant section 377, P.P.C. Further submitted that the clothes of the accused were never taken into possession to support the version of the prosecution. Further submitted that it shall not be in keeping with the safe administration of criminal justice to place reliance entirely upon the evidence of officials to bring in a verdict of conviction under the facts and circumstances of the case as Stated above. Further submitted that there are material contradictions in the testimony of the P.W.2 Nawar Khan Constable and P.W.3 Muhammad Khan A.S.I. in respect of the place of occurrence. In this respect, the learned counsel pointed out that whereas P.W.2 Nawar Khan stated that the place of occurrence was the pacca road, but P.W.3 Muhammad Khan deposed that the place of occurrence was the Katcha road. Therefore, further argued that such a contradiction in respect of the place of occurrence cannot be termed as minor discrepancy and that the only inference that can be drawn under such circumstances is that the said P.W.2 and P.W.3 had not witnessed the occurrence.

11. The learned counsel for the State opposed the present criminal appeal but fairly conceded that according to the medico-legal report it cannot be said that penetration had taken place and further confirmed, after consulting the record that the contradiction pointed out in the testimony of P.W.2 and P.W.3 stated above, is borne out from the evidence on the record.

12. In view of what has been stated above, as the complainant/victim had not supported the case of the prosecution and in spite of having been subjected to lengthy cross-examination, after having been declared hostile by the prosecution, the said P.W.1 Allah Ditta stood by his testimony before the trial Court, and as the medico-legal report does not establish, in any manner, that penetration had taken place, the same being sine qua non for the offence charged to be established, and as there was material discrepancy in respect of the place of occurrence in the testimony of P.W.2 and P.W.3, as stated above, therefore, it is hereby held that the prosecution has failed to bring the guilt home to the appellant beyond reasonable doubt.

13. Therefore, in pursuance to the above discussion, allowing benefit of doubt to the appellant, the present appeal is accepted and the impugned judgment is hereby set aside. The appellant is hereby acquitted of the offence charged. He shall be set at liberty forthwith, if not required to be detained in any other case. ' H.B.T./T-131/L??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.