2004 PLP 1148 (MLD)

2. The facts giving rise to the present appeal are that, on 26‑2‑2000 at about `Khuftanvela' complainant Rahat Khan (17/18), after having meals, went to the nearby fields to ease himself. He was about to sit when in the meanwhile, two young persons, one having long hairs, duly armed with pistol and the other empty handed, came near the complainant aimed pistol at his forehead and took him to the fields. The empty handed person removed shalwar of the victim and they committed sodomy upon him turn by turn. Afterwards, they left the spot firing with pistol and warning the complainant that in case he informed anybody, lie shall be murdered. The complainant relieved himself from the clutches of the accused and on reaching home, narrated the woeful tale to his brother‑in‑law Shah Daulaz Khan P.W. and his brother Raees Khan. They left the house, to search the culprits and returned back after sometime. They disclosed the names of the culprits as Alam Noor and Hakim Khan appellants. The matter was reported by complainant Rahat Khan on the following day at 1030 hours at Police Station Cantt: Bannu, Explaining the delay, it was stated that due to darkness and fear of accused, report could not be lodged in time.

3. ASI Mir Qasim (P.W.6), Police Station Cantt: Bannu recorded the report (Exh. PA), prepared site‑plan (Exh. PB) at the instance of the complainant. He prepared injury sheet of the complainant and sent him to the hospital for medical examination. Dr. Ahmad Rafi (P.W.2) DHQ Hospital, Bannu on 27‑2‑2000 at 11‑55 A.M examined the complainant. He found no mark of violence around the anal canal or adjacent to it. He also found no stains on the clothes or body of the complainant. The doctor took one cotton swab from the anal canal, sealed, signed and handed over the same to police constable. The appellants Alam Noor and Hakimuliah were arrested on 29‑2‑2000 and 2‑3‑2000 respectively. Appellant Hakimullah was examined by Dr. Abdullah (P.W.1) Medical Officer, DHQ Hospital, Bannu on 3‑3‑2000 at 10‑30 A.M. and found potent to perform the act of sexual intercourse. The Medical Officer found the shalwar of the appellant stained with suspected matter. Three suspected pieces of shalwar plus three urethral swabs were taken, sealed into bottle and handed over to police for chemical examination. An identification parade was conducted on 9‑3‑2000 in District Jail, Bannu under the supervision of Abdul Ghafoor Shah (P.W.3), Naib Tehsildar in which the complainant picked up and identified the accused‑appellants. At this juncture, A.S.‑I. Mir Qasim handed over the file to S.H.O. Sahaullah (P.W.5) Police Station Saddar, Bannu who partite investigated the case, placed on file the result of FSL and after completion of the investigation, submitted complete challan against the accused in 'Court.

4. During the trial, the prosecution produced as many as nine witnesses in order to prove its case and substantiate the charge. The appellants were examined under section 342, Cr.P.C. wherein they denied the prosecution allegations and professed innocence. They neither examined themselves on Oath as required under section 340(2), Cr.P.C. nor produced defence.

5. Learned trial Court after appraisal of evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment.

6. Mr. Salimullah Khan Ranazai, Advocate for the appellants contended with force that statement of the complainant is not corroborated by any other independent evidence and it was not safe to place implicit reliance on his testimony; that the F.I.R. has been lodged with inordinate delay and the intervening period has been consumed in consultations and deliberations and that prosecution has totally failed to connect the appellants with the commission of offence. Additionally, he urged that the medico legal report does not support the story of prosecution and report of the Chemical Examiner runs contrary to the medico legal report which has made the prosecution version highly doubtful. To substantiate the pleas, he placed reliance on Waqarul Islam and another appellants. v. The State respondent (1997 PCr.LJ 1107) and Muhammad Riaz appellant v. The State respondent (1997 PCr.LJ 1114 Federal Shariat Court). On the contrary, while supporting the impugned judgment, Mr. Shukat Hayat Khakwani, learned Deputy Advocate- General for the State maintained that the reasons advanced by the trial Court are well founded and there is hardly any substantial ground for lawfully challenging the impugned judgment.

7. I have heard at length the arguments and submissions of learned counsel for the parties. I have also gone through the record with their eminent assistance.

8. Generally speaking, in such like cases the most significant statement would be that of the victim and subsequently it would be seen as to whether it has been corroborated by other convincing material or otherwise. The corroboration of evidence need not be direct evidence but it may be independent evidence of such a character which could connect he accused directly or indirectly with the alleged offence. In the instant case, Rahat Khan complainant has narrated the episode in a truthful manner and his deposition amply stands corroborated by the ocular testimony of Shah Daulaz (P. W.9), brother‑in‑law of the complainant. Both these witnesses were subjected to fairly long and searching cross examination but nothing material could be elicited to favour the appellants. It is true that the crime in question having taken place on 26‑9‑2000 at about `Khuftanvela', the matter was reported to police on the following day at 1030 hours but it is equally true that delay in lodging of the F.I.R. has been satisfactorily explained and the delay per se is not fatal in this case.

9. As mentioned above, an identification parade was conducted on 9‑3‑2000 in District Jail, Bannu under the supervision of Abdul Ghafoor Shah (P. W.3), Naib Tehsildar in which the appellants were correctly picked up and identified by the complainant. Learned counsel for the appellants attempted to argue that the identification parade has not been conducted properly and prior to it, the appellant were shown to the complainant. The submission is misconceived. Statement of P. W.3 clearly indicates that the identification parade was held properly in Jail premises, all the legal formalities were complied with and as such, no prejudice seems to have been caused to the appellants. Mere long interval in holding test parade and identification of accused would not itself tie sufficient to discard the said testimony when the testimony with regard to it was also not challenged by the appellants in cross‑examination. Arif Maseeh and another appellants v. The state respondents (PLD 2001 SC 398).

10. Adverting to the submission of learned counsel regarding false involvement of the appellants owing to previous enmity, I find that no serious enmity between the two families has been shown for false implication. The explanation offered by the appellants in their statements under section 342, Cr.P.C. is not convincing. The complainant had come from Lahore to meet his sister Mst. Farhat married to Shah Daulaz (P.W.9), resident of Kotka Shazamani, Bannu. He had no reason to charge the appellant with false motive and bring bad name to his family. The deposition of complainant is inspiring confidence and in no way can be termed a witness acting under the spell of animus and allegation of enmity is only hearsay and has no foundation at all and is an afterthought to save the appellants.

11. Much stress has been laid on the point that the medical evidence and report of Chemical Examiner (Ex. P.W.5/3) run contrary to each other and do not lend support to the prosecution case. The submission is misconceived. The medico legal report and report of the Chemical Examiner fully corroborate the prosecution case. The Chemical Examiner opined that the suspected seminal stains on the articles were subjected to physical, chemical and microscopic analysis, and revealed that the semen of human origin were detected on the articles and clothes. In my opinion, the mere fact that semen of appellants were not sent to Serologist for grouping, by itself, is not sufficient to damage the prosecution case. It is well established by now that, "the omission of scientific test of semen status and grouping of sperms is neglect on the part of prosecution but not materially affecting the other evidence." In this view of the matter, I am supported by the observations made in Haji Ahmad, v. State (1975 SCMR 69) and Shahid Malik v. State (1984 SCMR 908). The Courts remain conscious regarding this aspect of the matter and it was held by learned Federal Shariat Court in case titled Ehsan Begum v. State (PLD 1983 FSC 204) that, "The police investigation in Pakistan is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officer examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina‑bil‑jabr. The police officers in their reference to the Medical Officers should also in such cases invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them to Chemical Examination and Serology alongwith vaginal swabs and clothes/cloth etc. having seminal stains."

12. In view of the above discussion, I find that the prosecution has successfully proved charge against the appellants and they have rightly been convicted under section 377, P.P.C. The order of learned trial Court needs no interference to this extent and is, therefore, maintained.

13. As regards section 506, P.P.C. is concerned, I feel that prosecution has not been able to prove the same beyond reasonable doubt. The appellants are, accordingly, acquitted of the charge under section 506, P.P.C.

14. The appeal stands disposed of with the above modification. H.B.T./62/P Appeal dismissed accordingly.