P L D 1966 (W (PLP)

ABDUL GHANI KHAN KHATTAK, J.‑‑Mir Taj Ali respondent was tried on the charge under sections 377/511, P. P. Code and was acquitted on the 25th of November 1964. The State has come in appeal against the order of acquittal. The respondent was in the employment of Mir Alam as tonga driver during the days of occurrence. On the evening of occurrence, Mir Alam P. W. gave "Dalla" to his son, Shadi Khan, for the mare, to be given to Mir Taj Ali at the Sarai. Sometime later, Mir Alam followed his son to the Sarai, because the latter did not return for a considerable time. Having entered to Sarai, he saw his son having been laid down with his face downwards on a Charpoy and the respondent was in the process of committing sodomy on him. Seeing him the respondent tried to run away but was apprehended. On the alarm raised by Mir Alam, P. Ws. Ilahi Bakhsh and Muhammad Bakhsh appeared to the spot. Shadi Khan disclosed to them that the respondent had caught him and made him sit in his (respondent's) lap. Thereafter, the respondent tore open his own Shalwar as also that of the victim, laid him down on the Charpoy and started forcing his male organ into the anus of the victim, but the former could not actually succeed in penetration. Ilahi Bakhsh (P. W. 3) called Muqarrab Khan F. C. (P. W. 5), who happened to be there in the close vicinity. The victim narrated the occurrence in the same terms to him. The police official took the respondent along with the witnesses to the police station. The report of the occurrence was made by Mir Alam at 21.30 hours in the P. S., City D. I. Khan, at a distance of four furlongs from the spot, recorded by Muhammad Nawaz Khan, A. S. I., P. W. The police officer took into possession Shalwar of Shadi Khan P. W., vide Memo. Exh. P. E, and the Shalwar of Mir Taj. Ali respondent, vide Memo. Exh. P.F. The witnesses to the recovery Memo. of the Shalwar are Ghulam Rasul, Member, B. D. (P. W. 6) and Gulazar, who was given up by the prosecution and was produced in defence. The Shalwar of the respondent was found stained with semen by the Chemical Examiner. No question was asked from the respondent at the trial as to the presence of the semen on his Shalwar. Therefore, this circumstance would not be taken into considera tion against him. Both the Shalwars had tears. The broad features of the case that ought to have been considered at the trial are as follows:‑ Motive.‑The respondent at the trial merely stated that he had been falsely implicated in the concocted case, because his pay was outstanding against his master. However, in the cross-examination of the P. Ws., there are no indications that this was the line of defence of the respondent at the trial. It is curious to note that the respondent in his statement did not disclose the amount allegedly outstanding against Mir Alam, father of the victim. However, the D. Ws. could conveniently remember the exact amount. Ordinarily, a father can hardly be conceived to bring disgrace to himself by ascribing the disgraceful role like the one in this case to a minor son in a cooked‑up case and that too against a servant for the consideration of little money. If Mir Alam could prevail upon all the witnesses to be privy to the concoction at such a large scale then he should be a man of some substance. We cannot persuade ourselves to believe that he could have accepted all this insult for this ignoble consider ation. Ilahi Bakhsh (P. W. 3) and Muhammad Bakhsh (P. W. 4) are independent and disinterested witnesses. Nothing has been urged at to why they had falsely deposed against the respondent. If indeed these two witnesses were inspired by malice against the respondent to give false evidence, there was nothing to prevent them from claiming to have seen the occurrence. They had only confined themselves to what they had heard from the victim and Mir Alam. We think that the trial Court was not justified in brushing aside the un-impeached statements of these two witnesses. The Shalwar of the respondent and that of the victim having been found torn is a circumstance which does not suggest that the matter was cooked‑up by Mir Alam. Muqarrab escorted the respondent from the spot to the police station, where the Shalwar was taken off his person in the presence of Ghulam Rasul, Member, B. D. (P. W. 6): Ghulam Rasul categorically stated that the Shalwar of the respondent had a tear in it. There is a clear recital in the F. I. R. about the arrival of the P. Ws. at the spot. The learned Magistrate did not give reasons for having discredited the evidence of the disinterested witnesses. He failed to apply his mind to the salient features of the case and rejected the evidence on the grounds which are irrelevant to the facts of the case not supported by any circumstance. It was not the prosecution case that the respondent had succeeded in actually committing sodomy upon Shadi Khan P. W. All that has been alleged by the prosecution is that the respondent made an attempt to commit sodomy on a minor boy of 7/8 years of age. The learned trial Court wrongly inferred from the medical evidence that as there were no marks of violence or blood on the anus of Shadi Khan and therefrom concluded that charge had been falsely foisted on the respondent. The facts proved in this case are that the respondent made an attempt of sodomy on Shadi Khan, his trousers was found torn, the disinterested witnesses supported the prosecution case and the motive for the false charge does not find support from the evidence on the record. All these facts, taken together, clearly show that the prosecution had successfully brought home guilt to the respondent and the trial Court had mis-appreciated the evidence and has erroneously acquitted the respondent, which has evidently resulted in the miscarriage .of justice. When the pro secution succeeded in making out a prima facie case, the presump tion of innocence has been displaced, and the force of suspicious circumstances against the accused is augmented and he was bound to rebut the prosecution case by his own plea of innocence of equal authenticity. The law does not make any distinction between the procedure which an appellate Court is to follow whether it be dealing with an appeal against an acquittal or an appeal against a conviction, keeping in view, of course, the fact that an accused has the advantage of the benefit of doubt and the presumption of innocence in his favour, but his burden becomes heavier when none of the two is discernible from the record. The respondent alleged that the case was set up against him through enmity, but there are no indications in the evidence of such enmity. His plea does not proceed beyond mere assertion. His presence and arrest at the Sarai clearly indicates that he was still in the service of Mir Alam. In our view, the acquittal of the respondent in the present, case, is manifestly wrong. We would accordingly accept the' appeal and setting aside the order of acquittal, sentence the respondent to R. I. for two years. K. B. A. Appeal accepted.