2013 PLP 2817 (YLR)

ABDUL SAMI KHAN, J.

Through this single judgment I propose to decide the instant Appeal along with Criminal Appeal No.209 of 2010 and Criminal Appeal No.211 of 2010 filed under section 410, Cr.P.C. as in all these appeals the appellants have called in question the judgment dated 31-3-2010 handed down by the learned Additional Sessions Judge, Taxila, Rawalpindi, wherein the appellants were convicted and sentenced as under:-- Muhammad Iftikhar appellant was convicted under section 367-A, P.P.C. and sentenced to undergo 25 years' R.I. with fine of Rs.50,000 and in default of payment of fine to further undergo one year's S.I.. He was also convicted under section 377, P.P.C. and sentenced to undergo 10 years' R.I with fine of Rs.100,000 and in default of payment of fine to further undergo one year's S.I. All his sentences were ordered to run concurrently. Muhammad Azeem appellant was convicted under section 377 P.P.C. and sentenced to undergo 10 years' R.I. with fine of Rs.100,000 and in default of payment of fine to further undergo one years' S.I. Muhammad Masood appellant was convicted under section 377 P.P.C. and sentenced to undergo 10 years' R.I. with fine of Rs.100,000 and in default of payment of fine to further undergo one years' S.I. All the accused have been extended benefit of section 382-B, Cr.P.C.

2. According to the prosecution story set forth in the F.I.R. the complainant is resident of Mouza Jhang Tehsil Fateh Jhang, District Attock and a student of First Year in Swedish Institute. On 2-2-2008 he obtained leave from the College and went to Rent a Car showroom of one Hasnain in Basti along with his friends Adil Khan son of Sher Ahmad Khan and Aqib Khan son of Safdar Khan. When they reached at the showroom of Hasnain Shah, he was not present there, while Iftikhar was sitting there. The complainant alongwith his friend had Salam Dua with him and sat there. After few moments, Iftikhar asked the complainant that he had some job with him and requested him to accompany him. Iftikhar boarded him in Alto VXR vehicle and took him to Mouza Bhabra. He made a telephonic call to Hasnain Shah that they had reached near his house and requested him to come out from his house. As soon as they reached there, Hasnain was already present there. Hasnain Shah took key of the Car from Iftikhar. Iftikhar took the complainant inside the house. There existed two rooms. In one room, Tahir Khan, Azeem Khan, Masood son of Muhammad Taj and an unknown person were present, whom the complainant stated that he can identify on seeing. Accused Iftikhar pushed the complainant to the second room, subjected him to violence and locked the room. He took off his shalwar and committed unnatural offence (sodomy) with him. Prior to leaving the room, he directed the complainant not to wear his clothes. Thereafter, Azeem Khan, then Iftikhar and unknown person committed sodomy with the complainant turn by turn. Azeem Khan also made naked snaps of the complainant with his mobile phone. The unknown person and Azeem Khan, who were armed with pistol threatened the complainant that in case he disclosed the occurrence to any one, his dead body would be found and they would not leave him alive. Thereafter, the complainant put on his clothes. They boarded him in the same vehicle. Masood and Hasnain Shah took him to the showroom. There he found sitting both his friends Adil and Aqib P.Ws. They inquired as to why he consumed so much time in returning back. Masood stated that time had been consumed in preparing rent agreement. Thereafter the complainant along with his friends left for their village. The complainant further alleged that due to fear, threats, he neither came out of his house nor he disclosed it to any one and today his brother inquired him about the problem, he was facing and the reason for not going to College or out of the house, then he narrated the occurrence to his brother and came to police station along with his brother for reporting the matter. After completion of investigation, challan was submitted in the learned trial Court wherein the appellants did not plead guilty and claimed trial.

3. The prosecution in order to prove its case examined as many as nine witnesses before the learned trial Court. The ocular account in this case has been furnished by P.W.5 Khayam Riaz victim. Adil Hayat (P.W.3) and Aqib Khan P.W.4 deposed regarding the fact of taking away the complainant by Iftikhar appellant. Khalid Pervaiz, S.-I./Investigating Officer appeared before the learned trial Court as (P.W.8) who after drafting the application Exh.PC sent the victim to the hospital for medical examination through Muhammad Arshad HC, prepared recovery memo Exh.PB, conducted spot inspection, took various steps during investigation, arrested the appellants on 23-4-2008 and after finding the appellants guilty submitted report under section 173, Cr.P.C. before the learned trial Court. The medical evidence in this case was furnished by Dr. Syed Sultan Ahmad, Medical Officer (P.W.9). Rest of the prosecution witnesses were almost formal in nature.

4. In their statements recorded under section 342, Cr.P.C. the appellants Muhammad Iftikhar, Azeem Khan and Muhammad Masood denied all the allegations levelled against them by the complainant and professed their innocence. In their statements they deposed as under:-- Muhammad Iftikhar "I am totally innocent. I am an employee of Anti-Narcotics and was on the place of my duty. It is false and bogus case. F.I.R. has been lodged by brother of so-called victim with unexplained delay. I.O. prepared injury report stating that no injury existed on the body of so-called victim. Medical Board negates the MLR. Name of owner of the house is missing and khasra number not mentioned wherein the house is located. Investigation was partial and dishonest. Even the witnesses were interested and their statements were got recorded under the threat of their involvement in the case". Azeem Khan "I and Tahir Mehmood have been falsely implicated in this case due to political rivalry and enmity. Riaz Khan Balra is our close relative who is a staunch supporter and ally of Maj. Tahir Sadiq, the sitting District Nazim Attock and a prominent leader of Pakistan Muslim League (Q). In the general elections held on 18-2-2008, Sher Ali Khan was contesting election for the seat of Provincial Assembly from our constituency on the ticket of Pakistan Peoples Party parliamentarian. We and our family whole heartedly supported Sher Ali Khan and also arranged his public meetings. During the election compaign, a quarrel had taken place between the supporters of Sher Ali Khan and Ishtiaq Khan. We also participated in the said quarrel. Ishtiaq Khan had threatened us that he would teach us a lesson for opposing him. Ghulam Sarwar Khan, Ex-Federal Minister and Tehsil Nazim Taxila namely Muhammad Siddique Khan, who are real brothers inter se are close relatives of Ishtiaq Khan. The complainant of this case and his family belong to the group of Ishtiaq Khan. In order to avenge the quarrel and opposition of Ishtiaq Khan in the election, he with the help and support of Ghulam Sarwar Khan and Muhammad Siddique Khan, Ex-Federal Minister and sitting Tehsil Nazim Taxila respectively, by concocting a false, baseless and fictitious story of the alleged sodomy with the complainant, got registered the instant case against us just five days before the national elections. The instant case has been registered falsely against me due to political motivation, rivalry and enmity. The private witnesses are inimical, interested and politically motivated whereas the official witnesses have deposed against me in order to add feathers to their caps and to strengthen the instant false case against me". Muhammad Masood " .It is a bogus case. Brother of so-called victim is my friend. So-called victim borrowed Rs.100,000 without the knowledge of his brother. I.O. prepared no injury report stating that he found no injury marks, on the body of so-called victim. Exh.PD is bogus story and no photographs were recovered during investigation. Name of owner of house is missing. Application was preferred by brother of so-called victim. During investigation, I asked police to bring Khayam before me but brother of so-called victim pretended that he has gone to Karachi. Investigation was dishonest and partial. The report of Medical Board has nullified the prosecution case. The witnesses were coerced to give statement under the threat of involvement in the case."

5. Upon completion of the trial the learned trial Court found the case against the appellants to have been proved beyond any reasonable doubt and, thus, convicted and sentenced them as mentioned above. Hence, these three appeals before this Court.

6. Learned counsel for the appellants submit that the prosecution has failed to prove its case beyond any shadow of doubt against the appellants. Further submits that there is a delay of eleven days in the registration of F.I.R. which has not been explained by the prosecution; the victim is a grown-up boy of 17 years of age and it is not understandable as to why he kept mum for eleven long days; there is glaring contradiction between the ocular account and the medical evidence; the report of the Chemical Examiner regarding the swabs taken from the anus of the victim is of no consequence as it has been procured by the prosecution after 11 days in order to strengthen its case; it is not possible that the semens remain present in the anus of the victim even after eleven days; there is no report of semen grouping in this case; there are no marks of violence on the elbows and knees of the victim; neither the nude photographs of the victim were recovered nor the same were produced before the learned trial Court during the trial; there is no eye-witness of the occurrence and the statement of the victim is not confidence-inspiring and is not corroborated by any other piece of evidence produced during the trial; the learned trial Court also convicted the appellant Muhammad Iftikhar under section 367-A, P.P.C. for life imprisonment on the ground that victim was abducted for committing sodomy but there is no evidence available on record that the victim was forcibly or deceitfully taken to the place of occurrence, rather in his statement the victim himself admitted that he went with Iftikhar appellant voluntarily; the learned trial court misread the evidence and erred in law while awarding convictions and sentences to the appellants; the impugned judgment has caused a great miscarriage of justice to the appellants. Learned counsel for the appellants have relied upon 1995 MLD 950, 1996 MLD 457 and 1997 PCr.LJ 1107.

7. On the other hand learned Deputy Prosecutor-General has controverted the contentions of the learned counsel for the appellants and has submitted that there is no previous enmity between the parties so as to falsely implicate the appellants in this case. The prosecution has proved its Case beyond any shadow of doubt against all the appellants through ocular as well as medical evidence. Parties are known to each other therefore there is no chance of mistaken identity as it is a day time occurrence. The P.Ws. are inconsistent with one another on each and every point and despite lengthy cross-examination nothing injurious to prosecution came on record. Delay in such like cases does not matter as people do hesitate to report the matter. Thus delay is not fatal to the prosecution case.

8. Arguments heard. Record perused.

9. Admittedly there is an unexplained delay of eleven days in the registration of F.I.R. which has not been properly explained by the prosecution and this fact is shrouded in mystery as to why the victim kept mum for eleven long days. It is very astonishing that the victim disclosed act of sodomy committed with him before his elder brother after 11 days and he did not share this alleged unfortunate incident with his friends with whom he is frank whereas admittedly he kept on performing his daily routine work. During investigation of this case, the victim had not identified the place of alleged occurrence. During trial the victim himself admitted that he voluntarily went with Iftikhar appellant while in his senses. This part of the statement of the victim is enough to set aside the conviction handed down to Muhammad Iftikhar accused-appellant under section 367-A, P.P.C. The victim deposed before the learned trial Court that he along with his friends, namely, Adil Hayat P.W.3 and Aqib Khan P.W.4 went to the show-room to get vehicle on rent at Wah Cantt. The name of the showroom is not mentioned by the victim or any P.W. It is not proved that whether Iftikhar is the owner of the showroom or he works thereat. Allegedly the victim was taken away by Iftikhar appellant in an Alto VXR white colour car but the said car was never produced before the learned trial Court nor it was taken into possession by the Investigating Officer during investigation. As per prosecution story the victim and P.W.3 and P.W.4 went to the showroom to get car on rent. Admittedly the victim Khayam Riaz and his friends P.W.3 and P.W.4 went away to their village without obtaining the car on rent after the alleged occurrence. Furthermore P.W.4 admitted that he asked said Iftikhar as to why so much time has been consumed and he replied that the time was consumed in preparing the rent deed. In this regard the prosecution has not produced any rent deed executed between the owner of the showroom or any of the P.Ws. including the victim. This fact also cast doubt on the prosecution story. The victim has levelled allegations against Iftikhar, Masood, Tahir Mahmood, Azeem Khan and one unknown person that they have committed sodomy with him turn by turn. He has admitted that an unknown person has committed sodomy with him and at that time that unknown person was armed with pistol and he gave him beating with pistol. Admittedly according to the MLC of the victim there is no mark of violence on any part of his body except a small laceration on anus. It is also an admitted fact that according to the victim Khayam Riaz in the first instance an unknown person committed sodomy with him but the prosecution fails to establish the identity of unknown person. During trial it has come on record through the evidence of P.W.3 and P.W.4 that the victim Khayam Riaz kept on performing his daily routine work such as playing cricket, etc.

10. Admittedly the victim was medically examined after eleven days of the occurrence and strangely the report of Chemical Examiner regarding the swabs taken from the anus of the victim is positive which is against the medical jurisprudence as the semens do wash away with the passage of stool. Admittedly he has passed stool several times during this period. This piece of evidence has been maneuvered by the prosecution to prove the allegations levelled against the accused-appellants. This Court is mindful of the fact that according to the MLC there is faint lacerated marks present over 11 O'Clock and 3 O'Clock position and while considering these marks the Doctor has opined that act of sodomy has been committed with the victim Khayam Riaz. I am afraid that accused could not be sentenced solely on the opinion of the Doctor without there being any cogent and confidence inspiring evidence produced by the prosecution which is missing in this case. Admittedly there is no report of the semen grouping procured by the prosecution or produced during trial which is a valid piece of evidence in such like cases when there are allegations against more than one person of committing sodomy with the victim.

11. It has also been observed by this Court that the clothes of the victim were never produced before the Investigating Officer or before the learned trial Court. Even during investigation of this case pistol was also not recovered. Apart from the victim there is no other eye-witness of the occurrence. No doubt conviction can be awarded on the sole testimony of the victim if it rings true and corroborated by other pieces of evidence but in this case there is no corroboration of the statement of the victim which can be taken into consideration. Admittedly neither the naked photographs of the victim were recovered nor they were produced before the learned trial Court during the trial. It is settled principle of law that one circumstance creating doubt is enough to acquit an accused.

12. For what has been discussed above, the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. It is golden principle of criminal jurisprudence that it is better to acquit hundred guilty persons than to convict a single innocent person. So the prosecution fails to prove its case against the appellants beyond shadow of doubt. Their appeals are allowed and they are acquitted from the charges levelled against them. They are present before this Court on bail. Their bail bonds are cancelled and sureties are discharged from their liabilities. HBT/M-139/L Appeals allowed.