P L D 1989 Supreme Court 747 (PLP)

(On appeal from the judgment dated 11‑10‑1988 of the Federal Shariat Court in Criminal Appeal No.165/L of 1988). ‑‑‑S. 377/511‑‑Constitution of Pakistan (1973), Art.203‑F‑‑Appraisal of evidence‑‑Testimony of victim himself was not only convincing but also found support from other circumstantial evidence‑‑Delay in lodging F.I.R. and medical examination was explainable‑‑Doctor had found multiple bruises on the buttocks of the victim and reddening of the skin around his anus with a further abrasion on the "inner aspect of the left buttock" and Shalwar of the victim was found to have been stained with blood and semen both, which could be treated as a very strong negation of doctor's opinion that it was only a case of attempt‑ Held, it might have been a fit case for conviction' under 5.377, P.P.C. and not under 5.377/511, P.P.C. in circumstances but since no appeal either against acquittal from charge under 5.377, P.P.C. or for enhancement of sentence was filed and features appearing in the case excluded the theory of false involvement of accused petitioner, there was no merit in petition for leave to appeal against conviction and sentence. S. Sajjad Raza Jafri, Advocate Supreme Court (absent) and S. Abul Asim Jafri, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 3rd July, 1989. MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑Leave to appeal has been sought against the judgment of the Federal Shariat Court, whereby the petitioner's appeal against his conviction and sentence under section 377/511. P.P. C. was dismissed. The finding against the petitioner is that he made an attempt to commit sodomy with a boy Zia Qamar aged 7/8 years. Both the learned Courts below have on proper appraisal of evidence held the petitioner guilty. Learned counsel has pointed out that there was inordinate delay in the F.I.R.; that there was also considerable delay in the medical examination; that the petitioner has been acquitted of the charge of abducting the boy, he should not have been convicted for attempt at sodomy; that there is an established enmity between the father of Zia Qamar and the petitioner; and lastly, that the father of Zia Qamar as also his other close relations are in the Police and they have falsely implicated the petitioner. We having heard the learned counsel, at length, in support of the aforestated points have very carefully examined the main features of the case with reference to the evidence. The careful scrutiny at this stage was due to mainly two reasons. One, that there was an element of estrangement between the two families and secondly, it was easier for the complainant side in this case on account of Police influence to falsely implicate the petitioner, if there was a need and desire to do so. Despite this anxiety and notwithstanding careful scrutiny we have not been able to agree with the learned counsel that the petitioner has been falsely implicated. The so‑called enmity was not such that the father of Zia Qamar a boy of 7/8 years only, being himself a Head Constable, would have involved his own son for falsely implicating the petitioner. On the contrary a possibility cannot be ruled out that in addition to the motive of lust the petitioner might have been motivated .on account of the alleged enmity to violate such a young boy of tender age, belonging to his adversaries so as to teach them a lesson. The testimony of the boy himself which has been quoted by the Federal Shariat Court in its judgment, is not only convincing but also finds support from other circumstantial evidence. The delay in the F.I.R. and medical examination is explainable on the reasoning contained in the impugned judgment. It needs to be mentioned here that if it would have been a simple case of attempt at sodomy without visible physical molestation of the boy, on these facts, we might still have considered it a fit case for grant of leave to appeal, but it is not so. The Doctor had found multiple bruises on the buttocks of the boy and reddening of the skin around his anus with a further abrasion on the "inner aspect of the left buttock". Together with this although the swabs taken from the anal canal did not disclose the presence of semen on them, which according to the learned trial Judge might have been on account of passing of the stool during the two days which elapsed between the act and the examination, yet the Shalwar of the victim was found to have been stained with blood and semen both. All these could have been treated as a very strong ‑negation of the Doctors opinion that it was only a case of attempt. It was not so because out C of two statements‑‑ one by the victim that the petitioner "committed carnal intercourse" with him and that he "bleeded" from his private' part and the other, Doctor's statement that it was only attempt to commit sodomy, the former got strong support from the results of the examination conducted by the Doctor himself which, as already pointed out, contradicted his opinion. It might, therefore, have been a fit case for conviction u/s 377 and not under section 377/511, P.P.C. However, there is no appeal against acquittal nor for enhancement. The Federal Shariat Court also failed to take note .of these features of the case so as to examine the question of at least enahncement. Be that as it may, these features in this case, as distinguished from an ordinary case of attempt at sodomy without any physical feature, make it certain that the petitioner has not been falsely implicated. Accordingly, this petition is dismissed. M.B.A./T‑52/S Petition dismissed.