1998 PLP 871 (MLD)

ABDUL WAHEED SIDDIQUI, J.

Appellants were charged under section 377/342, P.P.C. read with Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, herein after referred to as the said Ordinance, by the Court of Additional Sessions Judge-II, Swabi and acquitted all of them from all the charges vide judgment dated 4-1-1990. The said judgment was assailed before this Court and vide judgment dated 2-4-1991 it was set aside with directions for fresh trial which was conducted by the Additional Sessions Judge, Swabi. All the appellants were charged under Article 12 of the said Ordinance and vide judgment dated 28-4-1993, the said trial Court convicted all the three appellants/accused under the said provision of law and were sentenced to R.I. for 12 years with whipping numbering 30 stripes each, also fine of Rs. 20,000 in default to suffer R.I. for two years more. If realised, then one-half of the same was to be given to the victim by way of compensation under section 544-A, Cr.P.C. Appellants Mohammad Israr and Ahmed Ali Jan were given 'the benefit under section 382-B, Cr.P.C. from 16-12-1988 and appellant Shamsul Qamar was given the same benefit from 16-12-1988 to 4-1-1990 as it was the period of his being in the jail earlier to conviction. As observed, section 342 read with section 377, P.P.C. were not applicable. This judgment dated 28-4-1993 was impugned before this Court and vide judgment dated 23-6-1993 the conviction of the appellants under Article 12 of the said Ordinance was maintained. However sentence was reduced to the one already undergone, the number of stripes was reduced from thirty to ten and no change was made in the amount of fine. This judgment dated 23-6-1993 was assailed before the Supreme Court of Pakistan by the victim Sardar Muhammad and vide its judgment dated 25-4-1995 the appeal was accepted, the abovementioned impugned judgment was set aside and the case was remanded back to this Court with directions for rewriting the judgment after providing opportunity of hearing the parties. Now before this Court is once again the judgment dated 28-4-1993 delivered by Additional Sessions Judge Swabi which is impugned.

2. Since the impugned judgment is the result of the directions given by this Court by judgment dated 2-4-1991, we have not only to re-write the judgment, after proper appreciation of the evidence, but we have also to see as to whether the directions given by this Court have been carried properly by the trial Court or not. It shall be pertinent then to quote verbatim the said directions which are as under:-- "It has been observed in the impugned judgment at page 5 that Fazal Munim an important figure of the case was dropped whose testimony could be very much useful to the prosecution. We have to see whether eye-witness Fazal Munim was dropped or Investigating Officer has not shown him as witness in the challan. The learned Sessions Judge has discarded the evidence of chemical examiner on the ground that there was not blood grouping but Shalwar also had some blood. This fact has not been considered in the judgment. In a number of cases it has been argued that there is no arrangement of semen grouping. In our view this grouping is not mandatory requirement but only corroborating piece of evidence. We have also gone through the police file and found that statements of Fazal Munim and father of complainant Muhammad Sardar were recorded and are available on the record and without prejudice to the parties. Fazal Munim in that statement though may not be relevant supported the case. In these circumstances the Investigation Officer should have mentioned his name in challan which is missing. The evidence of Noor Muhammad father of complainant Muhammad Sardar is important with regard to explanation of delay in F.I.R. and corroboration to testimony of his son. His name appears in challan but was not examined. "

3. Succinctly, the prosecution's story is that the victim Sardar Muhammad accompanied by his maternal cousin Fazal Muneem went to an ice factory at Topi on 15-6-1988 and took an ice cream cart to sell the same. At Batakara Chowk they came across the appellants at 9 a.m. who advised them to sell ice cream at Shaqi Dand where there was some marriage ceremony. On this advice, they started for the said destination accompanied by the appellants. Proceeding from various lands, when they reached in sugar-cane fields, all the three appellants committed forcible carnal intercourse with him against the order of nature and went. The victim boy came back to his home and next day, when his father came from his duty, was informed who directed to report at the police station. Before reporting, the victim had satisfied himself that the appellants were the offenders and their names alongwith the names of their fathers were clearly mentioned in F.I.R. lodged at Police Station Topi District Swabi on 16-6-1988 @ 2.15 p.m. The time of incident was reported to be 15-6-1988 aat 11-00 a.m.

4. Prosecution examined ten witnesses. Fazal Muneem, the only occular witness per F.I.R. was examined as P.W.8 as directed by this Court while Faqir Muhammad, the father of the victim complainant Sardar Muhammad is neither appearing as a witness in the calendar of the witnesses in challan which consists of 13 witnesses, nor was he examined by the A.P.P. although he appeared in the Court. His evidence was important with regard to delay in F.I.R. and corroboration to testimony of his son. Here there is a clear transgression of the directions given by this Court as quoted above. Even if he was not being examined by the A.P.P. as his statement under section 161, Cr.P.C. was not recorded, it was incumbent for the trial Court to have examined him as a Court witness or otherwise he must have been proved an incompetent witness not falling within the ambit of Article 3 of the Qanoon-e-Shahadat Order, 1984 since as per para. No. 7 of the impugned judgment he appeared in the Court. Such transgressions must be avoided in the interest of proper administration of justice. The appellants were examined under section 342, Cr.P.C. but declined .to be examined on oath or produce defence.

5. We have heard the counsel for appellants, complainant and State. The counsel for appellants has contended that Article 12 of the said Ordinance is not constituted as the taking away of the victim is for about 200 yards; that investigation had commenced before lodging F.I.R.; that F.I.R. containing, names and parentage of accused/appellants was lodged after deliberation; that F.I.R. is delayed; 'that medical examination of the victim had taken place 28 hours after the alleged occurrence and speaks about the existence of semen which is not possible in the natural course; that SITE plan has been prepared without scales and is not admissible; that identification parade had not taken place although the culprits were not previously known to the victim complainant; that solitary statement of complainant is not corroborated by any other evidence; that swabs of the victim were neither taken nor sent to the chemical analyser; that some Hawaldar of police and other enemies of the appellants have used the victim boy for their ulterior motives; that the report of serologist was not obtained; that the so-called abscondence of appellants is equally consistent with their innocence; that there exist mitigating circumstances in the form of the appellants having suffered of being in the jail for 2 years and 3 months added by an agony of a prolonged litigation from lower Courts upto the apex Court for about 9 years. The counsel for complainant has contended that all the accused are directly charged in F.I.R.; that 27 hours' delay in lodging F.I.R. is explained plausibly; that positive medical evidence, positive results from chemical examiner and ocular evidence of P.W.8 are enough corroborations to maintain the conviction and sentence; that suggestions regarding enmity with certain influential persons is not established through evidence; that obsconsion of appellants for more than six months has no plausible explanation or proof in the shape of defence evidence; that the abduction/kidnapping is to the extent of a distance of about 1000 steps and, therefore, offence under Article 12 of the said Ordinance is constituted. Counsel for State has adopted the contentions of the learned counsel for complainant and has supported the impugned judgment.

6. We propose to take up first of all the contention about delay in reporting a heinous offence of kidnapping and commissions of sodomy by three adult healthy offenders upon an school going boy of tender age of 14/ 15 years with 28 teeth who had gone to sell ice cream to earn his bread and butter for being poor. Per F.I.R., date and time of occurrence is 15-6-1988 at 11 a.m. and that of report is 16-6-1988 and 14.15 hours. Hence it is delayed by 27 hours & 15 minutes. Distance between place of occurrence and police. The only ocular witness Fazal Muneem (P.W.8) is replying to a suggestion:-- "It is incorrect to suggest that the complainant lodged the report in the Police Station on the following day of the occurrence. Again stated that on the day of occurrence we did visit the Police Station but since the S.H.O. was not present in the P.S. therefore the report was lodged on the following day. We again went to the police station on the following day at about 9.00 a.m." Sardar Muhammad (P.W.9) complainant is deposing:- "When we went to the police station on the date of occurrence we found P.Ws. Ghulam Hussain Khan then A.S.I. and Sajjad Ali Khan S.H.O. in the Police Station and I narrated the occurrence to them which was reduced into writing but they advised us that though they had written my report but the F.I.R. was not registered and we were further advised that we would be disgraced. In contrast, Ghulam Hussain Khan (P.W.3), S.H.O. and Investigation Officer of the case is deposing:-- "As a police officer it is my duty to register F.I.R. in every cognizable offence whenever it is reported to me ..... It is incorrect to suggest that the complainant has come to the Police Station on 15-6-1988 in order to lodge the report but the same could not be recorded for the victim did not know about the culprits and was given a concession either to mention the names of the culprits or to nominate some and to be charged in the case. " It appears, then, that only under the apprehension of being reprimanded, the P.W.3 has falsely contradicted the two deponents i.e. P.Ws.8 and 9 about the first report on the day of occurrence. But even if we rely on this piece of evidence of Investigation Officer the P.W.3, yet the delay of about 27 hours in lodging F.I.R. is of no avail to the appellants. In holding this view, we are fortified by an earlier ruling of this Court reported as 1997 P Cr. L J 1500 in which even a delay of four days and some hours in reporting the case of sodomy committed on a student of 15 years of age could not dislodge the story of prosecution. Relevant para. No. 6 in the said judgment is quoted verbatim:-- "The impugned judgment has also been assailed by the convicted appellants on the point that it has not considered an inordinate unexplained delay in reporting. We have pondered upon this contention from the point of view as to whether this delay of four days and some hours generates doubts in the story of prosecution. Firstly we find in F.I.R. an explanation for delay that accused appellants were requesting for not lodging complaint for all these days, but then the complainant was finally brought by his mother for report at police station. Column No. 1 of F. I. R. is indicative that there existed some earlier report No. II on the record of police and with its reference this F.I.R. was lodged at 4-30 p.m. on 17-11-1994. In his examination-in-chief, Muhammad Faisal (P.W.4) has explained this situation in the following words: 'For about three/four days, the parents of accused persons requested us for a compromise.' Delay in rape cases is a universal phenomenon. It cannot be brushed aside unless the very commission of offence itself is clearly dubious. Quoting from the book 'Understanding the Rape victim', written by experts like Sedelle Katz and Mary Ann Mazur of the Department of psychiatry, University of Washington, U.S.A. (Publication 1979 by John Wiley & Sons, New York page 191: 'Whereas most crimes permit complaints years later without undermining credibility, for rape the statute of limitations is 30 days in Colorado, three months in Connecticut, six months in New Hampshire, 12 months in Massachusetts, and 18 months in Lowa. The majority of rape victims decided not to report at all. Instead of penalizing the victim who delays in reporting the case, she should be rewarded by kindness and consideration for her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being.' This observation is equally applicable upon male victims of rape as well. After all their male-ago and family honour is involved and in the social fabric of Pakistan nekmards of the area do make efforts for compromise specially when the parties belong to the same village and/or tribe. This creates double mindedness of the young victim and his guardians ultimately resulting into such delays. We find that in the present case both the parties are all and sundry residents of the same village Hasil and all of them are Bhatti by caste. Police record itself is indicative that dozens of nekmards on both the sides were indulging into hectic efforts for compromise which resulted into this delay. Medical and other evidence is clearly suggesting that the victim has been molested severely and the existence of animus with the examining doctor has not even been suggested. Consequently we consider this delay to be a natural result of the socioethnic situations coupled with painful mental condition of the victim and his close relatives. The contention is rejected accordingly." In the present case, commission of sodomy upon a school going boy of 14/15 years of age has been fully corroborated by ocular witness Fazal Muneem (P.W.8) and proved by Dr. Abdul Latif (P.W.10). The said doctor has deposed:-- "I examined him and found the following:-- The Shalwar worn black in colour has suspected spots of blood stains with semen stains. The anal orifice was red swollen and fresh laceration at 12'0 clock position was present. Upon examination of anal canal and orifice was found tendered. Result:- Sodomy has been performed on the subject. Teeth:- 28 in number Approximate Age:- 14-15 years. A piece of Shalwar which contains suspected stains of semen and blood was taken and sealed in a bottle was handed over to the F. C. Sardar Bahadur." Consequently this contention is rejected in the circumstances of the case

7. Now we take the contention of the appellant that the complainant was taken away for about 200 yards and, therefore, the ingredient of kidnapping is missing which is a constituent part of Article 12 of the said Ordinance whereas the impugned judgment is indicating in its para. No. 10 that section 342 read with section 377, P.P.C. are not applicable. Reliance has been placed on the following piece of the deposition of Sardar Muhammad (P.W.9), the complainant:-- "Fazal Muneem P.W. is the son of my maternal-uncle. He was a student of school and there were summer vacation hence he had visited our house. On the day of occurrence at morning time I alongwith Fazle Muneem P.W. went to the ice factory of Nisar at Topi, in order to fetch hand pushing ice cream cart to be sold to the people. We started selling the ice cream in the Bazar and when reached to the Batakara Chawak there is a cabin wherein the accused on trial three in numbers were sitting, they told us that since there had been a marriage ceremony in their village Swalai Wand, therefore, we should go there to sell the ice cream. We both accompanied the accused towards Swalai Wand and on our way to the said destination we reached a place wherein the sugar cane crops had been grown, there all the three accused forcibly took me to the sugar cane crops and made Fazle Muneem P.W. made stand beside the ice cream cart. All the three accused forcibly committed sodomy upon me one by one inside the sugar cane crop and then they fled away. " According to appellant, since force was allegedly applied from a place wherein the sugar-cane crops had been grown and taking into sugar-cane crops from the passage was about 200 steps, which amount to kidnapping with a purpose for carnal intercourse, vide S.I.T.E. plan (Exh. P.B.), therefore Article 12 is not constituted. Reliance has been placed on, inter alia, ruling at placentium B of citation 1986 SCMR 1947 which reads:-- "We have gone through the evidence on record including the site plan with care but do not find any specific mention of the distance between the place where the child was playing and the place to which he was removed for committing carnal intercourse against order of nature. At places it has been described as short distances. The victim described it as a long distance. In view of this discrepancy and lack of certainty the decisions of this Court in the two cases referred to by the learned counsel for the appellants shall be of avail to the appellants. The benefit of doubt must, therefore, be extended to them so far as the offence under section 12 of the Ordinance is concerned. As regards their conviction under section 377, P.P.C. was find that it is fully established and the findings of the two Courts suffer from no legal infirmity which may call for interference. In the matter of sentence, the learned counsel for the appellants had been married and a more lenient sentence would serve the ends of the case. We find that a helpless child aged 5 years has been made the victim by these grown-up persons. Any leniency in the sentence would clearly appear to be uncalled for. While maintaining the conviction and sentence of the appellants and dismissing their appeal with regard to conviction under section 377, P.P.C. we direct that the benefit of section 382-B, Cr.P.C. be extended to them and half the fine recovered from them be paid to the child as compensation. Their appeal so far as their conviction murder section 12 of the Ordinance is concerned is hereby allowed and their conviction and sentence under that section is set aside." The present case is distinguishable from the cited one as in the said case a child was removed from his place of playing to a place of occurrence for which no distance was specifically mentioned in the site plan as well as the record. In the present case, since the mens rea is established from the place where the victim was misinformed about a marriage ceremony which place appears to be a Sabin on Batakara Road and is shown as point No. 1 in the Site plan (Exh. P.B.) and the place inside sugar-cane fields is shown at point No. 1-A and the distance between the two points is shown to be 100 steps. A plain reading of Article 12 of the said Ordinance indicates that if any person is kidnapped or abducted in order to be subjected to unnatural lust but then the offence under the said Article is constituted. The Article reads:-- "Kidnapping or abducting in order to subject person to unnatural lust.- Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping not exceeding thirty strips." Fazal Muneem (P.W.8) has corroborated the victim in the following piece of deposition:-- "After that we started selling ice cream when we reached Batakara Chowk therein we saw three persons sitting in a cabine on the road side. They told us that there was a marriage ceremony in Swalai Wand, in their relations and advised us to sell the Ice Cream there. We started alongwith those persons towards Swalai Wand, on reaching near Swalai Wand there were crops of sugar cane, the accused directed complainant Sardar Muhammad for halt. The three accused caught hold of complainant Sardar Muhammad and dragged him into the sugar cane crops and I was made to stand by the side of the Ice Cream cart. All the three accused committed forcible sodomy upon the complainant Sardar Muhammad one by one while the victim was weeping." It is clear, then, that although physical force was applied later during dragging of the victim boy, the act of kidnapping itself had started from point No. 1 in the site plan by way of misguiding a poor ice-cream vendor under in order that he may be subjected to unnatural lust. The offence of kidnapping a kid of 14 or 15 years was, therefore, committed for about 1000 steps which distance is more than enough to constitute the offence under Article 12 of the said Ordinance. Another case cited as PLD 1984 FSC 23 is also distinguishable as in the said case the victim was taken from the path to a nearby Wanh and it was held that it did not constitute kidnapping or abduction as contemplated by Article 12 of the said Ordinance. In the present case the distance covered seems to many times more and is constituting the offence of kidnapping. Resultantly this contcution is repelled.

8. So far as the contention that the positive results of medical examination are not in conformity with the findings of medical jurisprudence and the natural course has its locus standi on the misconception that some semen was detected from the sphincter of the rectum of the victim boy 28 hours after the occurrence and naturally it should not have been detected as the victim must have eased in the meantime and all the spermatazoa must have washed out. In the present case it is not so. Dr. Abdul Latif (P.W.10) has found Shalwar worn by the examinee with suspected spots of blood and semen stains, the anal orifice red, swelling with laceration at 12'0 clock position and anal canal and orficie tendered. The piece of Shalwar suspected to contain stains of semen and blood were sent to the Chemical Examiner and serologist whose report vide Exh. P.R.-II was positive. This report is not about the anal swabs which appears to have not been taken. In the circumstances of the present case it was not essential for the examining doctor to procure the anal swabs as it was in his knowledge that the occurrence had taken place 28 hours earlier and it would have been an exercise in futility to do so. This contention is, therefore, rejected as misconceived.

9. The contention that the investigation had commenced before lodging F.I.R. has its basis on the last line of F.I.R. itself which indicates that before lodging F.I.R., the complainant victim had satisfied himself about the names and parentage of the offenders as they were not known to him previously. No suggestion has been made to Ghulam Hussain Khan (P.W.3), Investigation Officer of the case regarding investigation carried by police prior the complaint. The case-law cited is clearly distinguishable from the present case. Citation 1976 P Cr. L J. 911 is a D.B. judgment from Lahore jurisdiction. The relevant ruling reads:-- "S. 154- First information report--Evidentiary, value of--F.I.R. recorded at spot after preliminary investigation--Not admissible in evidence--Irregularity, held, not by itself sufficient to discard prosecution case as false. " Relevant ruling at PLD 1982 Lah. 577 reads:-- "First Information Report--Recording of at spot--Effect of--F.I.R. admittedly lodged at spot after about 2-1/2 hours of occurrence--A.S.I. recording F.I.R. giving no plausible explanations of his presence at spot--Police having arrived at 3-30 p.m., no explanation given of delay of one hour in recording of F.I.R. after arrival of Police at spot--Held: irresistible inference of preliminary investigation having been conducted or consultation having been made for setting up witnesses to be drawn in circumstances. " In the present case the police had not, gone to the spot earlier than the recording of statement. Citations 1974 P Cr. L J 208 and 1974 P Cr. L J 367 are also from the same jurisdiction and to the effect that F.I.R. recorded after spot inspection and making some investigation is defective and of no evidentiary value. In the present case, no spot inspection had taken place prior in time to the complaint. Consequently this contention is found to be misconceived and is rejected accordingly.

10. The contention that site plan (Exh. P.B.) is not a reliable document has basis on the fact that scales were not used for determination of distances and steps shown from point to point in the said Exhibit are only presumptions. In context following piece of the deposition of Ghulam Hussain (P.W.3) is worth consideration:-- "I proceeded to the spot alongwith other police personnel in my official vehicle. I did not make any stop/halt between the Police Station and the spot while going to the spot. From the spot I mean all the places where from the offence was initiated and committed. On arrival to the wooden cabin it was found closed. Points Nos. 3, 4 and 5 as per site plan Exh. P.B. are the places mentioned inside the cabin. I did not record the statement of the owner of the ice factory where from the ice cart was allegedly hired by the victim. Likewise I did not record the statement of the owner of the cabin. We reached to the spot where the offence had been committed within the next 15 minutes from the aforesaid wooden cabin," It appears, then, that the Investigation Officer alongwith other personnel had gone to the various points shown in the site plan (Exh. P.B.) in official vehicle. He covered the distance between the cabin to the place of occurrence in 15 minutes in the official vehicle. As discussed above, the offence of kidnapping had commenced from the cabin from where the three culprits had misguided the complainant with a mens rea and had accompanied him in order to satisfy their lust at a proper place. By any stretch of thought. a distance covered by a vehicle in 15 minutes cannot be less than 1000 steps. This piece of evidence has gone untarnished and inspires confidence. There is no law creating a mandate for Investigation Agencies to use scales in measuring the distances although it is advisable to use proper devices for measurement to produce accuracy. However, only on this ground the story of prosecution cannot be discarded which otherwise is fully corroborated and confidence inspiring. Consequently this contention is rejected.

11. As to the ground that the complainant was used by some other enemies against appellants there is complete denial by the complainant and other P.Ws. ,1 no evidence is produced by the appellants in support of this allegation. To such suggestions Sardar Muhammad (P.W.9) is replying:- "It is incorrect to suggest that one Head Constable namely Shamsher who was posted in Police Station Topi disclosed the names of the accused on trial and I named the present accused at his instance. The accused were known to me by face anyhow their names were disclosed when they were arrested. It is incorrect to suggest that the accused have been charged by me at the instance of H.C. Shamsher who then was posted in Police Station Topi and one Iltaf dispenser who was posted at C.H. Topi and this is why the report was lodged on the second day of the alleged occurrence." To the same type of suggestion, Ghulam Hussain (P.W.3) has replied:-- "It is further incorrect to suggest that as the instigation of H.C. Shamsher and one Iltaf Dispenser of C.H. Topi the aforesaid accused were mala fidely involved in this case by me." In his statement under section 342, Cr.P.C., to a question, appellant Muhammad Israr has replied:-- "I am innocent and falsely charged. In fact prior to the present occurrence. I alongwith my two other co-accused. Had quarrelled with one Shamsher H.C. The said quarrelled took place two three months prior to the present occurrence and he was posted in Police Station Topi, and threatened us with dire Consequences I have also got enmity with one Iltaf Dispenser in C.H. Topi. On whose instance the present case has been cooked up and I was falsely charged in this case. " The same reply is repeated by appellants Ahmed Ali and Shamsul Qamar in their statements under section 342, Cr.P.C. but have chosen to indicate enmity with Shamsher only. Ahmed Ali is stating:-- "I am innocent and falsely charged it the instigation of Shamsher H.C. of Police Station Topi with whom I quarrelled some 2, 3 months prior to the present occurrence and who threatened me for dire consequence." Shamsul Qamar is stating:-- "I am innocent and falsely charged on the beheset of one Shamsher Head Constable with whom I quarrelled some 2, 3 months prior to the present, occurrence." These statements of appellants are not corroborated by any defence. They have chosen not even to come forward and become their own witnesses under section 340(2), Cr.P.C. We have, therefore, come to the conclusion that the story of using the complainant and other witnesses by the enemies of appellants is baseless specially when the victim has been fully corroborated by the medical, ocular and circumstantial evidence.

12. Now comes the only contention worth consideration that due to prolonged litigation spread over about 9 years, the circumstances for education in sentence have developed. As discussed above, the offence under Article 12 of the said Ordinance is proved beyond any shadow of doubt- For this offence the maximum punishment prescribed by law is death or R.I. for a term which may extend to twenty five years. Keeping in view the circumstances of the present case, while maintaining the conviction, the sentence of R.I. for 12 years is reduced to a sentence of R.I. for six years for each one of the appellants, and the imposition of fine is reduced to Rs. 15,000 each, in default of payment to R.I. for one year more. If the amount of fine is realized, one-half of the same shall be given to the complainant victim by way of compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. is extended to them. The appellants are on the bail. They may be taken into custody to serve out the remaining portion of the sentence. N.H.Q./1144/FSC Sentence reduced.