P L D 1975 Peshawar 221 (PLP)

2. This judgment will dispose of the appeal and Cr. Revision No. 125/74 'Ghulam Mohyuddin v. Gul Mohammad etc. On 4-11-1972, Ghulam Mohyuddin P. W. made a report in Police Station West Cantt. to the effect that on 2-11-1972 at 'Asha' time, he left his shop for `Taraveeh' prayers leaving the shop in, the care of his servants Gut Mohammad (appellant), P. Ws. Naseer Mohammad and Mohammad Habibul Haq, sister's son of Ghulam Mohyuddin. Ghulam Hohyuddin runs a tailor's shop and the appellant and Mohammad Naseer are his apprentices. On his return, Ghulam Mohyuddin found his servants present and about Mohammad Habibul Haq he was told to have gone home. Next morning Mohammad Habibul Haq expressed trouble in the stomach and Ghulam Mohyuddin came to the shop. On 4-11-1972, at morning time, the mother of Mohammad Habibul Huq (sister of Ghulam Mohyuddin) disclosed that she had found the Shalwar of Mohammad Habibul Haq blood stained. On being questioned by Ghulam Mohyuddin, on his return from school the boy disclosed that on the eventful night between the 2nd and 3rd of November 1972, while he (Ghulam Mohyuddin) had gone for Taraveeh prayars, Gut Mohammad took him to the interior of the shop in a room and committed sexual intercourse with him in the absence of P. W. Naseer who had left for urinating. The boy said further that after a while Mohammad Naseer returned and gave a knock at the door of the room where the boy was being subjected to the crime. On being surprised, Gut Mohammad threatened the victim of crime and P. W. Mohammad Naseer with dire consequences in case they informed any body of the incident. The complainant Ghulam Mohyuddin after making himself sure by enquiry from Mohammad Naseer, charged Gut Mohammad for the offence and the case was registered on his report on 4-11-72.

3. Mohammed Habibul Haq stated at the trial that he was present at the material time with the accused (appellant) and P. W. Mohammad Naseer in the shop after Ghulam Mohyuddin (his maternal uncle) left for offering Taraveeh Prayers. Later, Nasir also left the shop for urinating. During his absence, the convict took him into the interior of the shop and committed sexual intercourse with him. In the meanwhile Mohammad Naseer knocked at the door which gave way and facilitated his entry in the venue of occurrence. The appellant intimidated him and Mohammad Naseer not to disclose what had happened. On the morning of 4-11-1972, he changed his clothes and went to school. On his return from school, he was questioned by Ghulam Mohyuddin about the stains of blood on his Shalwar, and the occurrence was thus narrated.

4. Mohammad Nasir supporting the victim of crime in material particulars stated that his attention was caught by the fracas emanating from the shop. On opening the door, he saw the boy being subjected to the act of sodomy by the appellant. The above version of the occurrence was narrated by the witness to Ghulam Mohyuddin before the latter left for reporting the incident.

5. Doctor Sarfaraz, Medical Officer Incharge Dabgari Dispensary examined Mohammad Habibul Haq, aged 11-12 years, on 4-11-72 at 8-50 p.m. and found :- "It is the third day of the act. He has bathed and washed the parts. He has also changed his clothes. On examination, there is contusion around annal entrance and abrasion at the annal. No other finding could be detected. Shalwar sent by the police for examination, he has been sodomised if the semen spot examination is positive." Doctor Sher Bahadur Khan, Medical Officer, Casualty Lady Reading Hospital, Peshawar (P. W. 6) examined the appellant on 5-11-72 at 3 p.m. and found the following :- "Patient brought for examination on 4th day of the act. Patient has bathed and changed the cloths. Supra pubic hair not shaved and there is mating of supra hair. No abrasion on the external genital organ. There is no evidence of sexual act on the external genital organ. Patient is able to perform the sexual intercourse. Secondary sex characters are well developed. There is secretion on pro-static massage, but at the time of examination no evidence of the act is detectable."

6. Hussain Ali Khan, S. H. O., Police Station Saddar (P. W. 7), recorded the F. I. R. on the report of Ghulam Mohyuddin and proceeded to the spot for investigation. He prepared injury-sheet of Mohammad Habibul Haq on 4-11-72 and sent him for medical examination. He inspected the spot, prepared the site plan at the instance of P. Ws. He took into possession one Shalwar Exh. P. 1 containing stains of blood and semen vide Memo. Exh. P. E. which was produced by Ghulam Mohyuddin to be that of Mohammad Habibul Haq. He recorded statements of P. Ws. and arrested the accused. The accused was medically examined on his application. This evidence was considered sufficient and rightly so by the learned trial Magistrate for recording the conviction of the accused.

7. The learned counsel for the appellant argued that there is inordinate delay in reporting the matter which in his opinion reflects on the case against the appellant. This delay has been sufficiently explained by the learned trial Court and I endorse the view so taken. Ghulam Mohyuddin got to know of the incident only after the blood stains were discovered by his sister on the day when the boy after changing the clothes had gone to school. The delay under the-circumstances is understandable. The sequence of events is self -explanatory of the alleged delay. Had it been a case of concoction, no time would have been lost to materialise the design already planned. Looking at the delay in the context of events after the perpetration of crime, the delay emphatically questioned before me requires no further explanation at all.

8. In his statement under section 342, Cr. P. C. the appellant disclosed that he demanded proper wages as a result of which he was removed from service. On the question of delay, the case of Ghulam Nabi Shah v. Crown (1969 P Cr. L J 1217) was cited. The report was made soon after Ghulam Mohyuddin was informed of the incident. The statement of the witness inspires confidence and report of the incident under the circumstances could not be made earlier. I do not consider it necessary to make reference to some other reported cases on the question of delay. The delay in criminal cases is invariably fatal if it remains unexplained by the facts and circumstances of the case.

9. P L D 1951 Bal. 22 is quoted in support of the contention raised by the learned counsel for the appellant. The age old adage "It is easy to bring such a charge but extremely different to refute it" requires in my, humble view to be prefixed with "though rare." Criminal law is concerned mainly with human behaviour in general. Every person is considered to be normal human being unless the contrary is proved. An accused person is considered innocent till he is proved guilty, proceeds on this premises. Similarly depravity and moral degradation must not be presumed against a person whom the compelling circumstances have made a complainant in a case like one under disposal. The safeguard in the section of law against a charge of this nature by a 'habitual' person speaks for the rarity of this moral depravity.

10. The statement of the victim supported by the ocular account of P. W. Mohammad Naseer further supported by the medical evidence leaves no room for doubt regarding the material ingredient constituting the offence. The argument that for an imaginary vendetta a person from any walk of life would degrade himself to that extent, the learned counsel endeavoured that I should believe, that a minor, a sister's son was put to such a disgrace by Ghulam Mohyuddin so as to make out a false case against the appellant. The charge against the appellant is not a mere charge, but is one, borne out by the physical facts found on the person of the victim supported by independent direct evidence.

11. There is no force in the appeal. I maintain the conviction and sentence with the modification that the fine if realised shall be paid to the victim of crime namely Mohammad Habibul Huq provided for by the mandatory provision of section 544-A, Cr. P. C. The appellant is on bail. He is taken into custody.

12. In view of the above judgment, Revision Petition (No. 125/74) stands partly accepted. S. A. H. Appeal dismissed.