MUHAMMAD AFZAL vs THE STATE
This criminal miscellaneous matter arises from a conviction under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicant has made out a case for the suspension of his sentence and release on bail pending appeal, given the contentions that section 12 of the Ordinance was not attracted as the victim was merely taken to a nearby room in the same vicinity, and that the solitary statement of the complainant was uncorroborated and directly contradicted by the medical and chemical examiner reports. The Federal Shariat Court held that ex facie a case for suspension of sentence was made out because the medical evidence was at variance with the prosecution version and no independent corroboration was available. The operation of the impugned judgment was suspended, and the applicant was admitted to bail.
- Whether a case for suspension of sentence and bail is made out when medical evidence is at variance with the solitary statement of the complainant?
- Does taking a victim to a nearby room in the same vicinity attract section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the context of kidnapping or abduction?
- Is a conviction under section 377 of the Pakistan Penal Code 1860 sustainable without corroboratory evidence when the medical and chemical examiner reports contradict the prosecution's version?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
ORDER
1. ' Crl. Misc. A. No,17/I of 2004 ' Learned counsel for the applicant/appellant has stated that applicant, in the case, has been convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") as well as under section 377, P.P.C. He has maintained that since it has come on record through the statement of the complainant that the accused persons had not kidnapped or abducted the complainant but had, in order to satisfy their lust, taken him to a nearby situated room, in the same vicinity therefore, section 12 of "the Ordinance" was not attracted. It is further his case that since conviction recorded against the applicant under section 377, P.P.C. Too, is not sustainable because solitary statement of the complainant was at variance with the medical evidence inasmuch as the doctor has categorically opined that when examined neither any mark of violence was available on the body of the complainant including knees and elbow nor any sign of commission of sodomy was found and sphincter was also normal.
2. He added that report of the Chemical Examiner too, was negative and the shirt as well as the trousers handed over to the police by the complainant was also not found stained with semen and likewise semen was also not detected on the anal swabs. Learned counsel for the applicant further contended that since no corroboratory evidence to solitary statement of the complainant was available and prosecution version that five persons had committed sodomy on the complainant was also belied by the medical evidence therefore, conviction of the applicant under section 377, P.P.C. Was also bad. He prayed that in the circumstances the applicant being first offender and a young man deserves to be released on bail.
3. ' Learned counsel for the State has candidly conceded that medical evidence, in fact, is at variance with the statement of the complainant and no corroboration thereto from any independent source is available. He has also admitted that since the victim for the alleged purpose i,e, commission of sodomy, as per complainant's own admission was taken to a nearby situated place therefore, apparently section 12 of "the Ordinance" was not attracted.
4. ' Since the complainant in his deposition has admitted that he for the purpose of commission of sodomy was taken to the room situated in the same vicinity and the medical evidence is also at variance with the prosecution version therefore, in our view ex facie, a case for suspension of the sentences of the applicant, namely, Muhammad Afzal son of Abdul Rasheed, is made out.
5. Operation of the impugned judgment, therefore, is suspended and applicant is released on bail on his furnishing bail bond in the sum of Rs,one lac with two sureties and P.R. Bond in the like amount to the satisfaction of the Registrar of this Court.
6. ' Learned counsel for the applicant has prayed that since Eid is approaching and the applicant is confined in New Central Jail, Bahawalpur, therefore, release order may, at the expense of the applicant, be communicated through any courier service. We are inclined to allow the request.
7. Order accordingly.