Sodomy

2023 PCrLJ 1346 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 377SodomyAppreciation of evidenceBenefit of doubtNegative Forensic Science Laboratory ReportsEffectAccused persons were convicted by Trial Court for sodomizing two minor boys and were sentenced to imprisonment for lifeValidity

Even if victims were subjected to carnal intercourse, even then it would not be helpful for the case of prosecution, particularly when ocular account and other circumstantial evidence did not connect accused persons with culpability so alleged

Investigating officer collected pieces of Shalwar of victims suspected to be stained with semen, and blood samples of victims for DNA and human semen analysis

On the arrest of one accused his blood and buccal swabs were also taken into possession, which were sent to Forensic Science Agency whereof reports were found to be negative

No reliance could be placed on such Forensic Science Laboratory Reports

Second accused was neither put to any Test Identification Parade nor was he medically examined by Medico Legal Officer or samples of blood and buccal swabs were taken, so his case was even better than the case of other accused

Prosecution failed to connect both accused persons with the indictment and findings arrived at by Trial Court were based upon improper appraisal of evidence

High Court set aside conviction and sentence awarded to accused persons who were acquitted of the charge

Appeal was allowed in circumstances.

2022 PCrLJ 1710 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 364-A & 377Qanun-e-Shahadat (10 of 1984), Art. 39SodomyAppreciation of evidenceMedical evidenceOffenceDeterminationConfession before policeAccused persons were alleged to have abducted complainant and committed sodomy with himTrial Court convicted both the accused persons for abducting complainant and sentenced them to imprisonment for lifeValidityMedical evidence was a corroborative piece of evidence coupled with statement of victim

Evasive denial without any allegation of false implication had concluded that offence of sodomy punishable under S. 377, P.P.C. was established

Prosecution's case carried two versions, one introduced by complainant/victim and another brought on record through disclosure of one convict

Confession before police was discarded as the same was not admissible in evidence

Other details or narrations mentioned/made in such disclosure could not be accepted also

Statement/any piece of evidence was to be accepted or rejected in toto and not otherwise

Version introduced by accused persons could not be trusted, as the same was not worthy of credit

Carnal intercourse was committed with complainant and the same was proved on record

High Court altered the charge framed for an offence punishable under S. 364-A, P.P.C. to offence of sodomy captioned as unnatural offence punishable under S. 377, P.P.C.

High Court reduced sentence of imprisonment from life to ten years

Appeal was dismissed, in circumstances.

2022 YLRN 48 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 377Qanun-e-Shahadat (10 of 1984), Art. 3SodomyAppreciation of evidencePrompt FIRChild witnessFailure to cross-examine the victim childEffectAccused was alleged to have committed sodomy with a 5 year's old boy

Complainant, father of victim, had lodged the FIR without inordinate delay stating therein that on the relevant date and time, when the victim returned back to his house, he was weeping and blood was oozing from his private parts, who informed him that the accused had committed sodomy with him

Victim, while appearing as a witness, had supported the prosecution case

No cross question was put to the victim by the counsel of accused regarding his sensibility or otherwise

Ocular account was supported by medical evidence

Complainant party had no enmity with the accused

Evidence led by the prosecution proved the charge beyond reasonable doubt

Appeal against conviction was dismissed, in circumstances.

2018 YLRN 114 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Penal Code (XLV of 1860), S. 377Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53Juvenile Justice System Ordinance (XXII of 2000), S.2(b)SodomyAccused allegedly caught hold of minor took him to house and committed sodomyDoctor did not opine the commission of sodomy on the victimNo other evidence either direct or circumstantial was available on file to show commission of offence by the accused

Accused was below the age of eighteen years as per school record and did not fall within the definition of "child" under the Juvenile Justice System Ordinance, 2000

Victim did not fell under the definition of "child at risk" as provided under S.53, Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010

Tentative assessment of material available on record made the case of accused for bail

Bail was granted accordingly.

2018 PCrLJ 1319 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 377Punjab Forensic Science Agency Act (XIII of 2007), S. 9(3)Qanun-e-Shahadat (10 of 1984), Art. 164SodomyAppreciation of evidenceAccused was indicted for carnal assault on the son of complainant and filmed the processProsecution case was structured upon the statement of victim, who had furnished graphic details of carnal assaultCross-examination on the witness and plea taken about the charge remained inconsequential

Forensic report prepared by analyst could be looked into without reservation in view of S. 9(3) of the Punjab Forensic Science Agency Act, 2007 and as such could be pressed into service to support ocular account in place of clinical finding

No traditional static mode was available to be followed to prove a criminal charge as court must adopt a dynamic approach to employ scientific methodologies to reach out a culprit in the new era of forensic

Record transpired that material relied upon by the prosecution to derive home the charge could be received in evidence in view of the provisions of Art. 164 of the Qanun-e-Shahadat, 1984, read with S. 9(3) of the Punjab Forensic Science Agency Act, 2007

Absence of clinical findings, having regard to the peculiar facts and circumstances of the case could be dispensed through substituted reliance upon forensic data, procured through technical system, which was not amenable to human interference

Science did not purger

Even otherwise, ocular account alone was sufficient to sustain the charge inasmuch as there was no earthly reason for the child or his family hailing from a rural neighbourhood to put forth a fake charge by incurring perennial embarrassment

Criminal revision was dismissed in circumstances.

2017 SCMR 290 SUPREME-COURT Judicial Precedent

S. 497(2)Penal Code (XLV of 1860), Ss. 377 & 367-ASodomyBail, grant ofFurther inquiryAccording to the FIR the victim boy went along with accused and co-accused on his own volition to attend a functionMedico-legal certificate of the victim showed that the doctor had found the anus of the victim to be normal

Moreover, in his statement recorded under S. 164, Cr.P.C. before the Magistrate, the victim had not specifically named the accused, rather he made a general allegation against accused and co-accused without naming any one of them, nor he had given the names of the witnesses as alleged in the FIR

Case of the accused became one of further enquiry in such circumstances

Co-accused had already been granted bail

Accused was behind the bars since about 6 months and no useful purpose would be served by keeping him incarcerated for an indefinite period

Accused was granted bail accordingly.

2017 PCrLJ 1623 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 377SodomyAppreciation of evidenceOcular account did not corroborate the medical evidenceProsecution case was that the accused-appellant committed sodomy with the minor son of complainant

Record showed that victim appeared as witness during trial but did not state a word in respect of unnatural offence committed upon him

Victim deposed that his shalwar was taken off by the accused-appellant who used filthy language against him

Medical Officer rendered positive opinion in respect of sodomy on the basis of tenderness observed by him on the anal region of the victim

Section 377, Penal Code, 1860 provided that penetration was necessary to constitute the carnal intercourse

In the present case, victim was silent about penetration

Opinion rendered by the medical witness was not conclusive in nature

Medical opinion was not in line with the procedure contemplated in the medical jurisprudence

Medico-legal Report showed the tenderness of anal region of the victim, which under the medical jurisprudence could be due to constipation or in case of irregular bowel habits

Medical Officer had failed to use the proctoscopy instrument in order to obtain the anal swab and did not notice any sort of abrasion or injury on the anal region of the victim

No positive report was on record with regard to semen stained clothes of the victim and the accused-appellant

Blood group of accused was not obtained in order to match the semen stains found on the clothes of victim

Mere tenderness of the anal region was not a conclusive proof of sodomy

Circumstances established that prosecution failed to prove the guilt of accused beyond shadow of doubt

Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2017 YLRN 271 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 377Criminal Procedure Code (V of 1898), S.342Juvenile Justice System Ordinance (XXII of 2000), S.2(b)SodomyAppreciation of evidenceRecording statement of accusedAge of accused, determination ofDefence had claimed that accused was aged about 11 years at the time of commission of alleged offenceTrial Court was to determine the age of accused, which was not done

Judicial Magistrate, deposed before the Trial Court that accused had made confessional statement before him regarding commission of offence, but no question had been put to accused regarding confessional statement made by him

If any piece of evidence was not put to accused in his statement under S.342, Cr.P.C., same could not be used against him for his conviction

After amendment of charge from S.367-A, P.P.C., to S.377, P.P.C., Trial Court should have provided an opportunity to the prosecution to substantiate the charge framed under S.377, P.P.C., by producing prosecution witnesses; with fair opportunity to accused for cross-examination, but such procedure, was not adopted by the Trial Court

All the incriminating pieces of evidence, were not put to accused in his statement, which was the requirement of law

Judgment of the Trial Court, in circumstances, was not sustainable under the law

Conviction and sentence awarded to accused by the Trial Court vide impugned judgment, were set aside

Case was remanded to the Trial Court for retrial in accordance with law.

2016 SCMR 1523 SUPREME-COURT Judicial Precedent

S. 497(2)Penal Code (XLV of 1860), S. 377SodomyBail, grant ofFurther inquirySample for DNA test was sent to the Forensic Science AgencyDoctor in his final opinion had opined that no act of sodomy was committedFurther the accused remained behind bars for about nine monthsCase of the accused called for further inquiry in the light of the opinion of the doctorHigh Court had fallen in error in setting aside the bail granting order passed by the Trial Court

Order passed by Trial Court granting bail to accused was restored accordingly.

2016 MLD 1479 PESHAWAR-HIGH-COURT Judicial Precedent

S. 377SodomyAppreciation of evidencecompromise in non-compoundable offenceEffect

Delay of about 2 hours in lodging FIR, could not be regarded as inordinate, while keeping in view the nature of the offence and circumstances surrounding commission/such offence together with stigma of that despicable act carried by the victim of the offence for rest of his life

Consultation with elders of the family by victim facing trauma of unnatural offence; would not be fatal to the case of prosecution by any stretch of imagination

In such like cases, only the statement of victim of the crime, coupled with the medical evidence report confirming commission of sodomy/unnatural offence, was sufficient to make out a case against accused

Statement on oath of the complainant, was fully corroborated by the prosecution witness i.e. res gestae witnesses who reached the spot immediately after commission of offence and narrated facts, which undoubtedly, supported version of the prosecution

No proof with regard to ill-will or malice on the part of complainant or prosecution was available

When statements on oath of the complainant and his brother, were coherent and confidence inspiring and received corroboration from the medical report showing commission of unnatural offence (sodomy) and nothing was on record to establish innocence of the accused, Trial Court was justified in brushing aside compromise, allegedly arrived at between the parties in non-compoundable offence

Trial Court, correctly found accused, guilty of the charge under S.377, P.P.C. and convicted accused thereunder to imprisonment for 5 years R.I., instead of life imprisonment

Trial Court having already taken a lenient view in the matter of sentence, no occasion existed to interfere with the elaborate judgment of the Trial Court, based on proper appraisal of evidence in the case

Conviction sentence awarded to accused by the Trial Court, were maintained, in circumstances.

2015 GBLR 289 SUPREME-APPELLATE-COURT Judicial Precedent

S. 377SodomyAppreciation of evidence

Prosecution, having proved its case against accused persons beyond any shadow of doubt, Trial Court convicted accused and sentenced him to undergo for 7 years' rigorous imprisonment

Chief Court upheld findings of the Trial Court

Impugned judgments of the Trial Court and Chief Court were well reasoned, based on strong corroborated circumstances supported by medical evidence

No infirmity and illegality having been found or pointed out by the defence said concurrent judgments, could not be interfered with

Both judgments were maintained and leave to appeal was refused, in circumstances.

2012 PCrLJ 1200 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 377Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, S. 12SodomyReappraisal of evidenceSentence, reduction in

Doctor, after receiving the report from the Chemical Examiner, issued final medico-legal report, wherein it was reported that sexual intercourse had been committed with the victim

Unexplained delay of four and half hours in filing F.I.R.

Where family prestige or respect was involved and child of someone was defamed, people were reluctant in filing report to the Police and it was a natural course that the father of victim must have consulted his relatives, whether to file report or not; and after consultation he had filed the report

Delay in filing F.I.R., in circumstances, was natural and same was not material to the case

Where a child of 11 years could be defamed for whole life, no father would involve an innocent person in the false case

Witnesses in the case were reliable

Accused was convicted on the basis of statement of the victim and medico-legal report

Trial Court also considered the corroboratory evidence

Shariat Court had fully appreciated the evidence and concurred with the judgment of the Trial Court

Statements of prosecution witnesses were confidence inspiring which rang true

Relative witness was as much a competent witness as any other, provided he was not inimical towards accused and had a motive to implicate accused in the false case

Solitary statement of victim was sufficient to convict accused in case of sodomy or Zina, if it was confidence inspiring

Case against accused was proved from the statement of victim, medico-legal report and statement of the Doctor

Trial Court, in circumstances, had correctly reached the conclusion that the case of sodomy was proved against accused

Maximum punishment which could be awarded under S.377, P.P.C., was ten years' imprisonment, but accused who was a young boy of tender age, had no previous record of crime

Sentence of 10 years awarded to accused, was reduced to 5 years, in circumstances.