Unnatural offence

Challan was available on record, wherein age of appellant was recorded as less than 18 years at the time of commission of crime

Similarly, the birth certificate of appellant (convict) was also available on record, which indicated the date of birth of the appellant as 01.05.2009

Admittedly, at the time of committing the crime, the age of the appellant was about 13-14 years and undoubtedly, he was a juvenile within the meaning of S.2(b) of the Juvenile Justice System Act, 2018

Besides, a special procedure for determining of age had been provided under the provision of S.8 of the Act, 2018

At the very outset, it was observed that whenever a question arose before a Court as to whether the accused was a juvenile offender and was subject to the jurisdiction of a Juvenile Court, the Court was required to hold an inquiry into the matter, but in the case in hand the Trial Court had failed to do so

Trial Court had failed to conduct any inquiry in order to determine the age of appellant through medical examination or to treat the appellant as juvenile as mentioned in the challan as juvenile

Similarly, the Court while granting custody of the appellant (convict) had also failed to discharge its functions in the light of S.8(2) of the ibid Act

Non-observance of mandatory provisions of law regarding determination of age of appellant had deprived him of the special rights and protection available to him as a child/juvenile

In such circumstances, the appeal was partly allowed by setting aside impugned judgment

Consequently, the case was remanded to the Trial Court for denovo trial of the appellant under the provisions of Juvenile Justice System Act, 2018.

Chief Medical Officer, DHQ Hospital, conducted the examination of victim and observed that blood was oozing from the external anal region and both buttocks were wet with blood, though he also took samples of anal swab, however, the statement of said witness was silent with regard to the specific performance of intercourse

Besides, said witness deposed in his Court statement that asurgeon was called for expert opinion, but the perusal of record revealed that prosecution had failed to produce the said surgeon

Even otherwise, the opinion of the referred Medical Officer was also not available on record

However, after examination of anal swabs, the Forensic Science Agency issued report of DNA and serology analysis, which transpired that the anal swabs of the victim were not found to be stained with semen, which even otherwise negated the ocular testimony

Appeal against conviction was allowed, in circumstances.

Occurrence took place on 25th October 2022 at about 08.45 a.m., whereas the distance between the Police Station and the house of complainant was about 02 kilometers, hence it was expected that the FIR should have been lodged promptly without any delay, but perusal of FIR revealed that the same was lodged on 25th October 2025 at about 02:15 p.m. i.e. after delay of about six hours and the prosecution had failed to give any plausible explanation with regard to inordinate delay in prompt lodging of FIR

Main purpose of lodging FIR was to set criminal law in motion and to bring on record first-hand information about the occurrence of a crime

Besides, it provided a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story

In view of the circumstances of present case, delay in lodging FIR could not be taken lightly and it casted serious doubts in the case of the prosecution

Delay in lodging the FIR could only be condoned, when such delay had been adequately explained but in the instant case, there was no explanation for inordinate delay in lodging FIR

Appeal against conviction was allowed, in circumstances.

Minute security of all the said witnesses transpired that the crime was not directly witnessed by them rather all the witnesses were present either in their houses or at the work place, hence the statements of said witnesses were hearsay evidence, which otherwise was not helpful to the case of prosecution

Victim though described the whole story by stating that on 25th October 2023 he was sitting in front of his house, in the meanwhile, at about 08:45 a.m. accused came there and asked him to watch his house, as he intended to attend a funeral ceremony, then took him to his house, where the accused committed unnatural offence with him

While contrary to the same, the complainant deposed in his Court statement that on the day of incident at about 08:45 a.m. he was present at his field, as such, received a telephone call, whereby he was informed about the occurrence

During the course of cross-examination, the victim deposed that his father was a rickshaw driver on those days, whereas the complainant stated that he was working in his cultivated land on the day of incident

Victim stated that on the said date another person namely "A" came to his house along with his father, while said witness "A" negated narration of victim in his Court statement, whereby he deposed that he was present in his house, on listening of hue and cry, he promptly reached to the house of complainant, where on his query, the victim disclosed to him that accused committed sodomy with him and he was bleeding and his shalwar was also blood stained

Thus, such contradictory statement of a star witness created serious dents in the case of prosecution

Appeal against conviction was allowed, in circumstances.

According to FIR, petitioner was found committing sodomy with the minor son of complainant, while grazing goats in the fields

Investigating Officer had not investigated the circumstances proceeding the incident which were necessary to establish mens rea

Investigating Officer had also not obtained the reports under Ss.5(1)(b) and 7(2) of the Juvenile Justice System Act, 2018, although they were mandatory

Given that the petitioner's age was closer to the lower end of the 10 to 14 age bracket, more convincing evidence was required to establish his maturity level, even at the investigation stage, because younger children were generally presumed to lack the maturity to understand the nature and consequences of their actions thoroughly

If a child was closer to 14 years old, the presumption might lean more towards the likelihood of sufficient maturity, thus requiring comparatively less rigorous evidence to establish that maturity

For all said reasons, further inquiry was needed to determine the petitioner's guilt

Bail was allowed, in circumstances.

Complainant, who was father of victim boy, was present before the Court on 28.08.2019 and stated that due to intervention of elders of their community, he had forgiven the accused and raised no objection for his acquittal by way of compromise as he did not want to pursue the case anymore or to prosecute the accused

With regard to prosecution's contention that the offence with which accused stood charged was not compoundable, the complainant, who was father of victim boy had stated before the Court regarding the compromise, thus had extended his no objection for allowing present revision application

Moreover, no offence was committed except alleged attempt

Sperm was found available upon the clothes of the victim, which were not sent to laboratory for DNA testing nor such report was made available with regard to matching of the same with DNA of accused

In absence of DNA report, remaining prosecution evidence, which was imaginary and had not been corroborated with any substantive material except allegation of attempt and in view of settlement of the parties outside the Court, prosecution evidence could not be used for maintaining conviction against the accused

Criminal Revision Application was allowed by setting aside impugned judgments passed by Trial Court and Appellate Court.

Judicial Magistrate had not given any observation about the medical of the victim, it was not clear that the injuries otherwise were available in the medical report

Description of injury was not mentioned nor exhibited

No seminal material was detected from the anal swabs, which shook the prosecution case that as to whether sole testimony of victim was consistent or coherent

Apparently, a doubt casted on medical evidence coupled with sole testimony of victim and negative Forensic Science Agency Report made the case of petitioner one of suspension of sentence

Petitioner was convicted firstly on 08.2.2020 by the Judicial Magistrate and his conviction and sentence was maintained by the Appellate Court on 04.01.2021

Petitioner had already served out a sufficient period as under trial prisoner and later as convicted prisoner

Accumulative incarceration of petitioner was about one and half year

During trial petitioner remained on bail and had not misused the same

Report regarding health condition of the petitioner was received from Medical Officer of District Jail, who diagnosed lumbosacral pain radiating to B/L legs, numbness and paresthesia

Symptomatic treatment was being provided to the said convict prisoner by the advice of Orthopaedic Surgeon but his pain persisted on and off

Case was related to the year 2021 and keeping in view the heavy backlog, there was no likelihood of its early hearing in the near future

Resultantly, the petition was allowed and sentence of the petitioner was suspended, in circumstances.

Neither first condition of the eye-witness nor the second condition with regard to corroboration of the medical evidence with the solitary statement of the victim was produced in the trial court

Appellant had failed to point out any defect in the impugned judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.

Record showed that the appeal had been filed under S. 417-A, Cr.P.C., and the limitation for filing such appeal was thirty (30) days from the date of passing of order/judgment

In the present case, the impugned judgment was passed on 27.12.2018 and the appeal, was filed before High Court on 18.02.2019 after fifty-three (53) days which was barred by time

Neither the appellant filed application under S. 5 of the Limitation Act, 1908 for condonation of delay nor explained each and every day of delay in filing of the appeal

Appeal was dismissed being barred by law of limitation.

During cross-examination, Medical witness stated that due to warm infections, the child had scratches on his anal canal and during cross-examination further stated that in expert opinion no sodomy was committed and it was only an attempt

Witness stated during cross-examination that there were no injuries on the knees of the victim and no injuries on his person

Section 377, P.P.C., provided that the offences would be completed when the carnal intercourse was taken place

Law provided that for constituting an offence under said section and to establish the carnal intercourse, the penetration was a condition precedent, therefore, the explanation provided in S. 377, P.P.C., stated that "penetration was sufficient to constitute the carnal intercourse

Victim was silent about penetration, while the opinion rendered by the Medical witness was not conclusive

Medical jurisprudence provided a complete procedure for examining the victim of sodomy

Medical opinion rendered by a Medical witness was not in line with the procedure contemplated in the medical jurisprudence, therefore, it was instructed to produce the relevant procedure for medical examination of the victim of sodomy as provided in the Medical Jurisprudence

In the present case, Medico Legal Report stated about the tenderness of anal region which under the medical jurisprudence could be caused due to constipation or in case of irregular bowel habits

Doctor had also failed to use the Proctoscopy instrument in order to obtain the anal swab and did not notice any abrasion or injury on the anal region of the alleged victim

Statement of victim was silent about penetration, thus without obtaining the anal swab of the victim and in the absence of positive report with regard to semen-stained clothes of the victim and the accused and without getting blood group of accused in order to match the semen stains found on the victims clothes, on mere tenderness of the anal region no conclusive opinion could be rendered as to whether sodomy had been committed or not

Sample was taken from the shalwar of the accused but no report of Forensic Expert was produced before the court, which created a reasonable doubt in the prosecution case

Accused was also of 11/12 years, and the victim was of 8/9 years and there were no such injuries on the person of the victim

Said aspect of the case also caused reasonable doubt in the prosecution

Appellant had failed to point out any defect in the impugned Judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.

Delay, as per FIR, had occurred because of the intervention of the elders of locality compelling the complainant for compromise

Medical report showed that the minor son of complainant was subjected to unnatural offence

Non-availability of report of Forensic Laboratory was of little consequence at bail stage

Juvenility by itself did not confer a license upon a person to commit such an offence

Offence was not compoundable, therefore, statement of complainant to have compromised the matter could not be taken into account

Accused was prima facie connected with the commission of offence which was both serious and heinous and also fell within the prohibitory clause of S.497, Cr.P.C.

Petition for grant of bail was dismissed, in circumstances.

Accused was not involved in any other case of such like nature and was not required by the police for the purpose of investigation

Case of accused called for further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.

Petition for grant of bail was allowed, in circumstances.

First Information Report was delayed and DNA reports were not of much use as samples were collected and sent at a much later date by the Investigating Officer

Lapses on the part of the Investigating Officer at such preliminary stage could not have an adverse impact on the case of victim

Victim had told the court that the delay was caused as a consequence of sheer fear on the part of his family as people of the locality were afraid of accused

Victim, prima facie, had no reason to falsely implicate the accused

Bail application was dismissed, in circumstances.

In case of sodomy or zina, the solitary statement of victim is sufficient to convict the accused if, it is confidence inspiring.

Evidence of the said witness was subjected to lengthy cross-examination, but nothing beneficial had come out on record in favour of the accused

Victim had narrated the whole story with regard to the occurrence

Statement of the victim was in line with his earlier statement

Said witness was cross-examined at sufficient length but nothing fruitful had come out on record in favour of the defence

Both the complainant and victim remained consistence and firm in their deposition

Said witnesses accurately uttered the date, time and manner in which the accused committed sodomy with the victim

Ocular testimony produced by the prosecution was direct in nature and the same remained unshaken, consistent, confidence inspiring on all material counts

Medical evidence reflected that victim had been sexually assaulted

Medical evidence had remained unshaken and unchallenged

Medical certificate of accused showed that he was potent and able for sexual intercourse

Both the ocular and medical evidence were in line with each other

Admittedly, the victim was a minor, but nothing on record showing that he was tutored by his elder

Statement of the victim had fully been corroborated by the circumstantial witnesses and medical evidence

Accused had failed to point out any misreading and non-reading of evidence and major contradictions in the statements of witnesses or any material illegality or irregularity in the impugned judgment warranting interference

Appeal being devoid of merits was dismissed.

Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 has been promulgated to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the province and the Act has been given overriding effect

Practice of police registering cases against accused persons simultaneously under S.377, P.P.C. and S.53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 is not justified.

Accused, charged with commission of unnatural offence against a minor, sought post-arrest bail, inter alia, on ground of unexplained delay of three days in registration of FIR

Validity

Prosecution story could not be doubted on ground of delay in registration of FIR alone, due to the fact that society is generally hesitant in reporting such incidents (unnatural offence) to police

Bail was denied, in circumstances.

Accused, at the time of incident, was about 13 years old and was physically weak but the complainant and eye-witness did not chase him nor raised hue and cry to get hold of him

Complainant admitted that if they had tried they could have apprehended the accused

Doctor, who examined the victim, did not observe any mark of violence on his body

Report of Chemical Examiner revealed that swabs taken from the victim's body were not stained with semen

Doctor opined that no penetration had taken place

Site plan showed that the place of occurrence was an open place and situated on a thoroughfare street with surrounding houses on one side

Occurrence could have been seen by a number of persons, who were residing in the nearby houses but none appeared before the court

Close relative of the complainant appeared in defence and categorically denied that any such occurrence had ever taken place

Impugned judgment was neither illegal nor any misreading or non-reading of evidence was pointed out that called for interference

Appeal against acquittal was dismissed.

In case of sodomy or Zina, the solitary statement of the victim was sufficient to convict the accused.

Solitary statement of victim, case of sodomy or zina, was sufficient to convict the accused, if it was confidence inspiring.

Solitary statement of the victim was sufficient to convict the accused.

Complainant lady, did not lead a happy matrimonial life with her husband/accused, and developed certain grievances against him

Complainant lady alleged that she had repeatedly been subjected to anal intercourse by her husband/accused, but her medical legal report negated her version, as her anal sphincter was found normal and too tight to give way even to a single finger without pain

Margins of the sphincter had not been pressed inwards, nor did it give the look of a funnel, as could commonly be found in respect of passive agent

Allegation that accused committed anal intercourse with complainant, and mother and sisters of accused, filmed the scene, was simply unbelievable

No mother or sister could be considered to behave so shamelessly as alleged by the complainant

Complainant could have been misbehaved or tortured by her husband/accused or other in-laws, but it was hard to digest that they had normally run so bankrupt as alleged in the FIR

Allegation of committing unnatural offence by accused, could only be corroborated by the medical evidence, which was in direct conflict thereto and reduced veracity thereof almost to Zero

So far as the allegation of throwing his own minor daughter from the roof top was concerned, complainant lady had herself rendered it, dubious circumstance, by moving a petition under S.491, Cr.P.C., whereby she contended that her husband joined his mother and other armed cronies forcibly snatched baby from her and took away with them

If it had happened like that, how could it be believed that accused had thrown his minor daughter from the roof top

Medical evidence had rebutted the allegation of sodomy

Accused's false involvement in the case due to malice or ulterior motives of the complainant, could not be an outright improbability

Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Any action or order of any authority relating to Armed Forces of Pakistan, which was either corum non judice, mala fide, or without jurisdiction, the same could be challenged before High Court and bar contained under Art. 199(3) of the Constitution would cease to operate

Neither order passed by Field General Court Martial was a case of no evidence or that evidence led by prosecution was insufficient to convict accused

Victim had himself described forced sexual encounter of accused, when he committed unnatural offence and the same was corroborated by medical evidence on record

Supreme Court declined to interfere in the judgment passed by High Court

Petition was dismissed in circumstances.

Report had been lodged without any delay and recovery of semen-stained clothes from the spot confirmed the site of occurrence

Mobile phone which was used for making video of the occurrence had also been recovered from the pocket of one of accused persons

Four pieces of clothes having semen stains were sent to Forensic Science Laboratory, report of which was in positive

Investigating Officer investigated the case properly and collected the corroboratory evidence

Minor age of the complainant/ victim and charging accused without any previous enmity or family dispute, was sufficient to connect accused with the commission of crime

Defence had failed to bring on record any reason for falsely involving accused in the case

Not a single accused claimed to have been charged due to enmity or malafidely

High-handedness and the criminal conduct of accused persons disgracing the complainant and his family could not be ignored

Statement of victim, was direct, straightforward, confidence inspiring, fully corroborated by the medical evidence, video, Forensic Science Laboratory report and other evidence produced by the prosecution

Age of accused persons who were ranging from 17 to 21 years and also being first offenders, had created mitigating circumstance warranting reduction in the quantum of sentence awarded to them by the Trial Court

Conviction of accused persons was maintained, but their sentence was reduced to ten years' R.I. each from imprisonment for life

Benefit of S.382-B, Cr.P.C. was also extended to accused persons.

Conviction could be based on solitary statement of victim provided same was capable of being relied upon and was corroborated by medical as well as circumstantial evidence.

Positive report of Chemical Examiner being of corroborative nature has no value, when substantive evidence about the commission of offence is not belivable.

F.I.R. was lodged after about 7 days from conducting of medical examination of accused and such inordinate delay remained unexplained

Offence under S.377, P.P.C. though was not compoundable, but the compromise effected between the parties could be considered a ground for reduction of sentence

Ends of justice would be sufficiently met, if sentence of accused was reduced from 7 years' R.I. to one already undergone by him

Amount of fine was also reduced from Rs.25,000 to Rs.10,000, in circumstances.