P (PLP)

Asim Malik, for Appellant. Public prosecutor, for Crown. JUDGMENT.‑This is an appeal against the judgment of the learned Sessions Judge in Baluchistan dated 30th September, 1950 in which he has convicted one Muhammad Shuaib of an offence falling under the provisions of section 377, Pakistan Penal Code and has sentenced him to one year's rigorous imprisonment. I have heard learned Counsel for appellant as well as the public prosecutor and I have also perused the records of the case. The facts of the case, as alleged by the prosecution, are very briefly that on January 1, 1950 at about 8 p. m. one Wali Muham mad a boy aged about 16 years from Kandhar, met the appellant Muhammad Shuaib who took him to a certain hamam where, as alleged by the boy, sodomy was forcibly committed upon him by the appellant. The main basis for the prosecution case is that of the medical evidence supported by certain alleged eye witnesses who have given evidence to the effect that they actually saw the offence of sodomy being committed. In the first place, I observe from the judgment of the Sessions judge that he is not prepared to believe the evidence of these eye‑witnesses (P. W. 1 and P. W. 3) for the reasons given in his judgment. These reasons are to the effect that since these two eye‑witnesses saw what was going on and since they took no steps to rescue the boy, their evidence must be considered unreliable. The main ground for conviction in this case is mainly the medical evidence which has been adduced and which, in terms of this appeal, I propose to examine carefully to see whether the Sessions judge has reached a proper conclusion in this case. In Indian Cases 1.926, p. 257 it was, I consider, rightly observed by the learned judge that evidence in support of a charge under section 377 Pakistan Penal Code must be very convincing as it‑is very easy to bring such a charge but extremely difficult to refute it. One of the essential ingredients to prove an offence under section 377, Pakistan Penal Code is, among others, that penetration must have been effected. In this sense the committal of an unnatural offence is very similar to that of rape where equally penetration is an essential ingredient which must be proved before conviction can follow. In so far as the medical evidence is concerned, there is on the record the oral evidence of the Doctor concerned, namely P. W. 2, who examined Wali Muhammad the complainant some three hours after the alleged offence had been committed. He also examined Muhammad Shuaib appellant. In his examination of the complaint he states that he found, no marks or bruises on his body while a smear was taken from the anal area of his anus which showed the presence of dead sperms. It is, however, significant to observe that in the medical examination of the appellant the smear taken showed no indication of the presence of sperms. It was on the basis of the discovery of dead sperms near the anal area of the complainant that this witness expressed an opinion that sodomy had been committed, but in terms of evidence relating to penetra tion this witness has stated that he found no bruise on the male organ of the appellant, though he stated that if the size of the anus is small and the male organ is large the anus itself would be bruised or the penis would have been bruised. While I have no reason to disbelieve the evidence given by this expert witness, I think it must be accepted with considerable reserve before deciding whether or not penetration had in fact been effected. The fact that sperms had been found round the anal area by no means proves that an essential ingredient of this offence was complete, namely penetration. It may be treated possibly as corroborative though not conclusive evidence. I next come to the chemical analysis in regard to the clothes of both the complainant and the appellant. The record indicates that seminal stains were present on the shirt of the appellant. There can be little doubt that this shirt did in fact belong to the appellant though he himself in his statement does not admit this fact. It has been held in A. I. R. 1947 All. 97 that seminal stains on the clothes of an accused person are by no means a decisive factor. With this view I am disposed to agree though the presence of stains according to the circumstances of each case might be of value as corroborative evidence. In so far as the judgment of the Lower Court is concerned, I am in agreement with the views expressed by the learned Sessions Judge in discarding the evidence of the two eye‑witnesses (P. Ws. 1 and 3). The reasons he has given are, in my opinion, logical but I would go further. The evidence indicates that these two cases observed what was taking place through a small hole in a room in the hamam where it is alleged the appellant and the complaint were present and where the former was actually seen in the act of committing sodomy upon the complainant. I observe from the evidence of P. W. 1 that he states that he was able to see the appellant inserting his penis into the anus of the complainant. On the other hand, there is evidence to the effect that the alleged offence took place at 8 p. m. on a night in January when it was pitch dark and that the room in which the offence is alleged to have taken place, being a room in a hamam, was full of steam and that only a small light was shining in that room. The light has been exhibited before the Trial Court and is Ex. D/1. It has also been produced before me and is only a very small chiragh" which, in my opinion; would give an extremely poor form of light. It would therefore appear to be quite impossible to expect a man looking through a small hole of a few inches in diameter, as the witness states in his evidence, into a room full of steam and lit only by a very small lamp to have been able to see the appellant actually inserting his penis. This evidence is, in my opinion, beyond all bounds of possibility and is a further reason why I would view the evidence of both these Witnesses and the other eye‑witness, with extreme reserve. There are also other grounds for suspecting the prosecution evidence in this case for its attempts to show that force was used. This is completely negatived by the evidence of the doctor who says there were no marks on either the complainant' or the appellant except that the latter had some marks on his back. This fact clearly indicates that the eye‑witnesses cannot have been telling the truth. The Sessions Judge, however, concludes that the complainant was a willing victim but if I consider grave doubt must be cast on the value of the prosecution evidence as a whole the question of whether the offence was com mitted by force or with consent will not arise. If I discard the vital evidence of the two eye‑witnesses to this offence the remainder of the prosecution evidence, other than that of the Chemical analysis and the medical. evidence, is virtually valueless in proving the offence. The remainder of the oral evidence relates to other witnesses who had no direct knowledge of what had taken place other than what they had been told by these two particular witnesses. Briefly the evidence remaining in favour of the prosecution is the opinion of the doctor that sodomy had been committed, his evidence of sperms near the anus of the complain ant and the presence of seminal stains on both complainant's and appellant's clothes. None of this evidence can prove the fact that penetration took place and without penetration an offence under section 377 Pakistan Penal Code has not been committed. A relevant factor in this case also is that the assessors, for reasons stated by one assessor, gave an opinion of not guilty against the appellant. The reason stated by one assessor was that some of the prosecution witnesses and appellant were apparently at enmity from which I can only conclude that the assessors pre sumed that this was a fabricated case. While it might be danger ous to make such a presumption the fact remains that the assessors unanimously carne to the conclusion that the appellant was not guilty; and though a judge need not conform to the opinions expres sed by the assessors it is always advisable for him to give very strong and convincing reasons in his judgment for disagreeing with them. Having discarded the evidence of the alleged eye‑witnesses I do not feel disposed to rely for the purposes of a conviction virtual ly on the sole opinion of the doctor, unsupported by any evidence as to penetration, that sodomy had been committed. However, strong the presumption may be‑and in this case, it must be strong because dead sperms were found round the anal area of the complainant‑‑such presumption must not be allowed to take the place of proof that penetration bad been effected; Since therefore an essential ingredient, which is required to be proved if a conviction is to follow under section 377 Pakistan Penal Code is lacking in this case, I have no alternative but to give the benefit of the doubt to the appellant. Accordingly I accept the appeal, set aside the conviction and acquit the appellant: I further direct that he shall be set at liberty‑immediately. K. M. A. Appeal accepted: