1998 PLP 1137 (MLD)

ABDUL WAHEED SIDDIQUI, J.

The Court of Sessions Judge, Abbottabad has convicted appellant under section 377, P.P.C. and has sentenced him for life imprisonment (25 years' R.I.) and fine of 8.5,00,000 (Rs. Five Lacy, if not paid, to suffer further R.I. for 6 years. If realised, 1/2 to be paid to the 3 victim sons of the appellant in equal shares as compensation and 1/2 to go to State. Benefit of section 382-B, Cr.P.C. is extended. The judgment dated 17-3-1997 in this regard has been impugned before us.

2. Story of prosecution, in brief, is that on 28-9-1995 Q 16-30 hours, complainant Faisal Shah (P.W.3) accompanied by '"any other persons reported at Police Station Mirpur, District Abbottabad that he had been a cleaner with his father (the appellant) who is a truck-driver. His father used to quarrel and beat him for trifling matters and whenever he uesd to come back to the home, used to commit sodomy with him since 2 years. A few days before, he came to know that his father (the appellant) remained committing this very act of sodomy with his brothers Qaisar Shah and Shah Khalid. On 26-9-1995 at about 9-45 p.m. he prohibited his father from taking away his brother Shah Khalid with an intention to repeat the carnal intercourse against the order of nature with him. His father did not listen to him and took away Shah Kahlid in his another house (Takia). On this, he informed Muhammad Akhtar and Muhammad Aslam who lived in their neighbourhood. Then they took away Shah Khalid who was weeping. Next day a Jirga was called and all the three victim brothers narrated their stories to it. In the meanwhile their father had taken away the truck somewhere. Then they remained waiting for the appellant accused to come back but he did not turn up. Consequently, in the form of delegation they came to the police station and lodged F.I.R. Appellant was arrested, challaned and charged firstly under Article 18 read with Article 12 of Ordinance VII of 1979, secondly under section 377, P.P.C. read with the abovementioned Ordinance to which he did not plead guilty.

3. Prosecution examined nine witnesses. Abdul Aziz Khan (P.W.1) S.H.O./S.I. proved that he completed challan after investigation. Although opportunity provided, he was not crossed. Dr. Niaz Ali (P.W.2), Medical Officer, examined the appellant accused and proved that he had found no physical disability to hamper sexual intercourse. He found an old minor scar on the right side of root of the penis. He was not crossed in spite of an opportunity provided. Faisal Shah (P.W.3), complainant aged 23 years has deposed that the accused appellant used to commit sodomy with him 5/6 years prior to the F.I.R. when he was conductor and at the time of first assault in Sindh he could not understand that it was a sin or wrong act. For about three years, the sin continued, but then he started resisting which caused quarrels between him and the appellant. Thereafter, he started avoiding his father and his father complained that he was wasting money and was indulging into Charas. Then some elders decided that he should go alone on the truck, whereas his father should remain at home. About a year before complaint, he was again asked to surrender for the dirty act and on refusal he received beating. Consequently he ran away from the house to Gadoon Amazai and worked there for 2-3 months in a welding workshop. Then he came to the house of his sister from where he was brought back by his mother. After few days a dispute arose as his father wanted to take his brother Shah Khalid and live somewhere else as the culprit had already started sodomy with his two younger brothers and his mother knew all about it. Then they reported the matter to their relatives and for about 15 days the deliberations were going on as to whether it may be reported to police or not. Finally then they reached the conclusion that the appellant was incorrigible and thus the complaint. He has proved lodgement of F.I.R. During cross he admitted that he worked with his father since 1984 and with none else and that before last Jirga only his mother and his brothers knew about the commission of offence. He has also admitted that he is a Shia and so is his father and he has established an Imam Bargah which is, adjacent with their house, whereas his relatives and other people of the locality are Sunnis. They were converted to Shia sect about 14/15 years back. Qaiser Shah (P.W.4), aged 18 years has deposed that about two years before the report, he was alone at home and his father committed forcible sodomy upon him which was reported to his mother when she came to the home. His mother advised the appellant accused to refrain from such acts but he did not accept the advice. A few days later a Jirga was arranged and lastly on the date of report. The sodomy was committed with him one year after the first incident at Takya. Again a quarrel had taken place between his father and mother on this incident. The matter became ripe for report when an attempt of sodomy was made upon his younger brother Shah Khalid and when his father ran away to face a Jirga. During cross, he has admitted that he, his other brothers and mother are Sunnis, but his father is a Shia who had established a Takiya which was not liked by him and even the villagers including Muhammad Afsar had pelted stones at Takiya. He has admitted further that the sodomy was committed with him with full penetration. One Khalid Saeen who used to be present at Takiya normally, was shunted out by the appellant on the accusation that he was committing sodomy with Shah Khalid (P.W.5). Whenever his father did not go with the truck, driver Zubair and sometimes driver Juma used to go with Shah Faisal (P.W.3). One Subhan also accompanied them sometimes as a conductor. Many other persons also worked as conductors at different intervals of time. His brother Shah Faisal, the complainant, smokes cigarettes and the appellant used to forbid him from smoking. Shah Khalid (P.W.5) aged about 12 years has deposed that about a year before the report first time sodomy was committed with him at Takiya by his father, the appellant. The incident was informed to his mother who quarrelled but of no avail. Thereafter, after every one or two days the offence used to be repeated with him. During cross he has admitted that his father appellant was converted to Shiah about 12 years back and established Takiya about 5 years back. His uncles, mother and other brothers are not Shias. His father used to force him for conversion. He has denied pelting of stones on Takiya by the people before his levelling charges of sodomy. Khalil Saeen was shunted out from Takyia by the appellant on false allegation of his indulgence into sodomy with him. His father used to commit sodomy with him for about 8 to 10 times during night or day time. He heard that his mother said a few days back that she will compromise in case the appellant transferred his land to his wife and sons He has further admitted that they used to go to Takiya for prayers. Shah Aurangzeb (P.W.6) aged 47 years has deposed that the appellant is his firs cousin. One year before the report he was informed by the wife of the appellant in the presence of three victim sons about the commission of offences. He could not tell anything to the appellant due to shyness and appellant's being elderly to him. Thereafter Shah Faisal, the complainant, left the house and started residing separately with his grand maternal mother at Sheikhalbandi. Then he, and the mother and father of the angry boy went together to bring him back. There then the angry boy disclosed about the sinful nature of his father. This witness then stopped his own children to learn the holy Quran from the wife of the accused appellant. 7/8 months afterwards a Jirga was arranged which was avoided by the appellant. Hence the report. During cross he au-muted that he came to know about the offence first time when he went to bring back Shah Faisal from Sheikhalbandi. He has also admitted of one Saeen Khalil at Takiya. Mst. Sidra Bibi (P.W.7) wife of the appellant and mother of the alleged victims, aged 50 years has deposed that she was told about the commission of sodomy upon her eldest son Shah Faisal 5/10 years back. On denial by the appellant, she disbelieved her son. After some time when her second son Qaiser Shah disclosed about the same act, again appellant denied on query, but a quarrel took place. After some time when her minor son Shah Khalid also complained of the same act she summoned Shah Aurangzeb, her real cousin, and requested him to restrain the appellant. Then Shah Faisal ran away to the house of her mother. Later on a Jirga was convened and finally a report was lodged. During cross she has admitted that she is a Sunni and so are her all the sons and appellant was converted to become Shia about 14/15 years back. She has also admitted that she was willing to compromise in case the appellant was going to transfer his property to her and her sons, but due to refusal on his part the report was made. Mir Dad (P.W.8) S.I. and Additional S.H.O. has proved that the complainant came to the Police Station Mirpur in a delegation consisting of eight persons and made report which was recorded by him in the shape of F.I.R. (Exh. P.A.). He got all the three victims and appellant examined medically. Doctor Arshad Hussain (P.W.9) examined all the three alleged victim brothers on 28-9-1995. About Qaisar Shah (P.W.4) he has given his finding that there is no external injury, on proctoscope no old or fresh tears inside the rectum are detected, P/R examination is painful to the patient which indicates that the examinee is not a habitual catamite. About Shah Khalid (P.W.5) his findings are that there are no tears and no recent or fresh sodomy is noted. About Shah Faisal (P.W.3) it has been found that there are healed tears seen on rectum and the opinion given is that he is well-used for sodomy. During his statement under section 342, Cr.P.C. the appellant has? replied to question No. 4 as under:-- ??????????? "It is incorrect. Medical reports regarding Shah Khalid and Qaisar Shah are negative whereas, Shah Faisal is found habitual according to his medical report. Other evidence on file reveals that said Shah Faisal used to travel and work with different drivers for a period of two years for which period he never worked with me. " To a question as to why P.Ws. have deposed against him, his reply is:-- "I belong to Shia Sect while my sons and co-villagers including my wife belong to Sunni Sect. I built Imam Bargah in my village and I preach for my school of thought. Therefore, my co-villagers and my family members are annoyed. They used to pelt stones on Imam Bargah. My sons in collusion with Pervez P.W. have brought this false charge against me just to fetch my landed property. In this regard Pervez P.W. (abandoned) wrote me a letter which is self-explanatory. It is Exh. D.I. Said Pervez contacted another person namely Sharafat of the village who is in jail by writing a letter to him, in this context which is Exh. D.2. Due to above reason the co-villagers and P.Ws. are interested in my conviction and snatching my property under coercive measures." The appellant examined himself on oath under section 340(2), Cr.P.C. and exhibited two documents in his defence.

4. We have heard the counsel for appellant and State. The learned counsel for appellant has contended that F.I.R. is lodged with inordinate delay; that there is material conflict among the P.Ws.; that the medical evidence is in conflict with the evidence of alleged three victims; sectarian extremism is the basis of this malicious prosecution resulting into the conviction of an otherwise innocent, religious and aged person; that the star witnesses are not corroborated by medical evidence; that a criminal conspiracy has cropped up against the appellant with a motive of usurpation of the truck, house, Takiya. Imam Bargah and agricultural property owned by him; that the evidence of Pervaiz was essential but he had not been examined by the trial Court as a C.W. and that the impugned judgment has relied on the weaknesses of defence evidence whereas the onus of proving the case beyond all reasonable doubts was on the prosecution and reliance has been placed on PLD 1994 SC

879. The learned counsel for State has contended that the F.I.R. is delayed due to closest relationship among the victims, wife and the appellant; that the evidence is inspiring confidence and is corroborated by Medical evidence to the extent of Shah Faisal (P.W.3), the complainant.

5. Before entering into the arena of the case, the first and foremost fact about which we have taken a judicial notice is the existence of the circumstances of extreme hatred amongst the citizens of Pakistan on petty sectional differences and nefarious activities carried against each other in violation of, inter alia, the following Injunctions of Ilam and the Fundamental Rights as conferred by the Constitution of the Islamic Republic of Pakistan. The Holy Quran declares: Those who have generated sects in their religion and have become groups within groups, you do not belong to them. Let their affairs be with God and soon shall they be informed as to what they were doing. VI-159. "All of you must hold the rope of God with strength and collectively and do not indulge into sectarianism. Remember the bounty of God upon you when you were enemies then he placed mutual love in your minds and resultantly you turned into brethren as a reward from him. You were standing on the precipice of a cliff of an inferno, but then he saved you. This way God expounds to you His symbols and signets so that you choose righteousness." (III-103) "Do not become like those polytheists who have generated secterianism and are converted into sections and then every one of them is happy with what they linger on. xxx-31, 32 "There is no compulsion in religion. The righteousness stands distinguished from going astray. (II-256) "For you is your ideology, for me is mine" (CIX-6) Constitution of Pakistan, Article 20: "Subject to law, public order and morality,-- (a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions. Every one knows that even the mosques and those who pray and prostrate before God, the Almighty, are not spared due to existence of this phenomenon. Where such extreme mischief in its aggravated form can happen, the sanctity of close blood relations is at stake. Cases are on the record where gangincests have taken place due to differences of ideologies, sects, sub-sects and even minor differences of juristic opinions of different schools of jurisprudence. On the other hand, under such circumstances, in the Courts of Pakistan such false cases are cropping up in which allegations of incest, sadism, bestiality lesbianism, coitus person murder after commission of rape, gang rapes urinating in the mouth, and carnal intercourse against the order of nature with one's own wife, daughter and son, intercourse with a dead female etc. are made and due to the hatred generated by extreme sectarianism When we look at the present case before us in this general perspective, we find certain mysteries of the case unfolding themselves before us in the following manner.

6. Faisal Shah (P.W.3), the complainant, is the eldest and real son of the appellant. During cross he has tried to hoodwink the Court while declaring that he is himself a Shia like his father and in the absence of appellant father he is looking after the Imam Bargah established by his father. On this point, he is falsified by his own mother Sidra Bibi (P.W.7) while replying to a suggestion that she and her sons are not Shiahs and so is the deposition of Shah Khalid (P.W.5) on the same lines. Shah Aurangzeb (P.W.6) aged 47 years has admitted his close relationship and family terms with the appellant. He has also admitted that he is a Sunni and his children used to learn the Holy Quran from the wife of the appellant. In spite of this closeness, he has replied to a suggestion that he does not know whether the wife of appellant is a Shiah or Sunni. He has shown his ignorance on this point intentionally with a view to hide the nefarious secterian activities which were taking place against appellant in violation of the Fundamental Rights conferred on him by Article 20 of the Constitution of Pakistan. Qaisar Shah (P.W.4) has admitted that he and the people of village were against the establishment of Takiya (i.e. a religious centre of Shias) and it is correct that Muhammad Afsar and other villagers had pelted stones at Takiya. He has also admitted that he did not like to go to Takiya, but his father (the appellant) used to force him to go there. Faisal Shah (P.W.3), the complainant, has tried to hide these incidents based on secterian hatred in the following words:-- "It is correct that our relatives and other people of locality are Sunni. We have actually converted to Shia Sect about 14/15 years ago. It is wrong to suggest that Muhammad Pervez and other named in` the F.I.R. wanted to remove Imam Bargah in our village. It is wrong to suggest that they had quarrelled with my father in establishment of Imam Bargah." As against the facts narrated by Qaisar Shah (P.W.4), Shah Khalid (P.W 5) has replied during cross that it is wrong to suggest that people of their village were annoyed on his father's conversion to Shiaism and that it was wrong to suggest that people had pelted stones on Takiya before his allegations against his father. Shah Aurangzeb (P.W.6) has also tried to take the course of law on wrong lines while deposing that the people used to tolerate all the religious activities of the appellant. Sidra Bibi (P.W.7) taking the same lines as Shah Aurangzeb (P.W.6) has tried to falsify the deposition of her own son Qaisar Shah (P.W.4) while deposing that she had no dispute with the appellant about religion and he was at liberty to perform rites. She has also denied the incident of pelting stones by people at the Takiya in conflict of the admission of such an incident by P.W.4 and P.W.5. Now the religiosity of the appellant is apparent from the record. According to his own wife Mst. Sidra Bibi (P.W.7), he was converted as a Shia about 14/15 years back. She and Shah Aurangzeb (P.W.6) have admitted that all other close or distant relatives of the appellant and the people of the locality are Sunnis. In the presence of such an atmosphere, the appellant seems to be so staunch about his religious opinion that he established an Imam Bargah or Takiya as a religious centre for prayers etc. Shah Khalid (P.W.5), has admitted during cross that the fact was that they used to go to Takiya for prayers. Qaiser Shah (P.W.4) has admitted that his eldest brother Shah Faisal, the complainant, used to smoke cigarettes but the appellant forbade him from smoking. He has also admitted that an accusation of sodomy was levelled against one Sain Khalil with Shah Khalid, but he was shunted out by the appellant from the Takiya. How can it be believed then that such a staunch religious person making efforts to save his sons even from smoking can even conceive of indulging into such a heinous crime like sodomy with his own teen-aged and minor sons, one after the other.

7. Shah Khalid (P.W.5) aged about 12 years has deposed that his father, the appellant, used to commit sodomy with him for about 8 to 10 Mmes during night or day time. He has also admitted that during initial attempts the appellant avoided full penetration, but afterwards he used to fully penetrate and that the witness is a student of 6th class, but first time sodomy was committed with him when he was student of 5th class meaning thereby that when he was almost 11 years of age. Now first of all he is contradicted by the course of human conduct as set by nature. It does not appeal to mind that appellant being of advanced age and charged for being a habitual sodomist since about more than a decade could commit this crime upon his own son of 11 years of age for 8 to 10 times during 12 hours length of time as has been alleged by this witness. He has been contradicted by Dr. Arshad Hussain (P.W.9) who examined him on 28-9-1995 at 9-30 p.m. i.e. 5 hours after the complaint was lodged with the police station. This witness has proved Exh. P.W. 9/3 in which following note is falsifying Shah Khalid: "No recent or past? penetration of penis i.e. sodomy (sexual abuse) noted. " This same P.W.9 has also proved Exh. P.W. 9/1 which gives medical opinion about examinee Qaisar Shah (P.W.4) that there is no evidence of recent or past abuse. But the allegation of Qasir Shah and other P.Ws. against the appellant is that this witness was under continuous assaults of sodomy since two years. About Shah Faisal (P.W.3), the eldest son of the appellant and the complainant, medical evidence of P.W.9 is that he is well-used for sodomy and at the time of medical examination his anus was freshly shaved (which is generally done by habitual catamites). About swabs of this examinee sent to the chemical examiner, the report is negative. Shah Qaisar (P.W.4) and Shah Khalid (P.W.5) not corroborated by the medical evidence and the P.Ws. being in material conflict among each other, it stands proved that the allegation of sodomy committed upon them is fabricated and as proved above, extreme sectarian hatred is the background of the entire episode.

8. So far as the case of Shah Faisal (P.W.3) is concerned, he has been corroborated completely by the medical evidence and to the extent that he is a habitual catamite. His allegation is that it is due to the mischief of the appellant that he is in that condition. But the evidence on the record is not assisting him in this allegation against the appellant. As proved above, this witness tried to hoodwink the trial Court while declaring himself be a Shia whereas he was a Sunni, he has also tried to prove that since 1984 he had continued working as a conductor with his father and that he did not work with any other person except his father. To a suggestion, he has replied that whenever his father could not go, he alone drove the truck in the far flung areas of Gilgit. In conflict to this statement, Shah Qaisar (P.W.4) has deposed that whenever appellant did not go with the truck, Zubair driver went alongwith Shah Faisal (P.W.3) and once for about 3 months. Earlier to him one Jumma of Gilgit used to go alongwith Shah Faisal towards Gilgit areas. Subhan also accompanied them as a conductor for about a month or two. Many other persons also worked as conductors on their truck: Even Shah Faisal (P.W.3) has deposed that he had run away from his house to Gadoon Amazai and worked there as a labourer in welding workshop for 2-3 months. About his running away he has been corroborated by his mother Mst. Sidra Bibi (P.W.7) and Shah Aurangzeb (P.W.6) who brought him back to the house. All this evidence proves that Shah Faisal has been in the company of other drivers, conductors, mechanics and many other people without being accompanied by the appellant and that also not for few days but for many months away from home at long distances covering from Gilgit to Sindh. Although he has denied that in the absence of appellant, he was subjected to sodomy by other drivers etc. who used to accompany him, but his own conflicting statements do suggest that he is indulging into false denial. Here then we find the following piece of evidence from statement of appellant under section 342, Cr.P.C. which is inspiring confidence: "Shah Faisal I found habitual according to his medical report. Other evidence on file reveals that said Shah Faisal used to travel and work with different drivers for a period of two years for which period he never worked with me. "

9. We have also noted that the complaint is made with inordinate delay of many year for which the only explanation coming forward is that it was such a shameful act that the offence could not be reported. But simultaneously Shah Khalid (P W.5) is deposing that he heard that his mother said a few days ago that she will compromise the case if the appellant/accused transfers his land to her and to her sons. To a Court question Mt. Sidra Bibi (P.W.7), the wife of appellant, has admitted that she was willing to compromise with the appellant if he agreed to transfer his property to her and her sons, but he refused and, therefore, the case was registered. All this evidence suggests that a conspiracy had cropped up against the appellant due to sectarian hatred. It was based on two alternatives and both were to the effect that he was to quit his native village. First alternative was to make him agree to transfer all his properties to his wife and sons and with a natural consequence of abandoning the locality as a destitute. Second alternative was that in case he did not agree the law enforcing agencies should be moved in a manner and with such a modus operandi that either a judicial murder of the appellant was going to take place or a sentence of life imprisonment was to be his destiny. Since first alternative failed, the people of locality used the blood and sacred relations in a manner that abuse of the process of the Court has taken place.

10. The documents produced as Exhs. D.W./1 and D.W./2 by the appellant in his defence are to the effect that while the appellant was in the jail as an undertrial prisoner an effort of compromise was going on through P.W. Pervaiz and on the conditions as disclosed by Mst. Sidra Bibi (P.W.7) and Shah Khalid (P.W.5) during their depositions. These documents could have been proved by Muhammad Parvaiz Khan who is appearing at Serial No. 4 in the calendar of witnesses in challan. He has been abandoned vide statement of P. P. dated 18-12-1996. In these circumstances of the case, we presume within the meaning of clause (g) to Article 129 of the Qanoon-e-Shahadat, 1984 that the evidence of this witness Muhammad Pervaiz Khan while it could be and is not produced would, if produced, be unfavourable to the prosecution who has withheld/abandoned him. In holding this view we are strengthened by Qaisar Shah (P.W.4) who has made a reference to this withheld witness as one of those respectable persons of locality who had gathered in the Jirga. Although the reply is in negative to a suggestion made to Shah Aurangzeb regarding appellant's dispute with this withheld witness on some land, but the document exhibited as D/2 by the appellant is also in the nature of the compromise, inter alia, about immovable properties and is a letter written to this very witness who has been withheld and this circumstance also favours the view taken by us in this regard

10. We agree with the impugned judgment only to the extent that this is a unique case. But in view of the reasons discussed above, we have already set aside the impugned judgment and have acquitted the appellant vide our short order dated 8-7-1997 and have allowed the appeal while giving him benefit of doubt. N.H.Q./1164/FSC ????????????????????????????????????????????????????????????????????????????? Appeal allowed.