INAYAT MASIH vs THE STATE
This criminal appeal arises from a judgment of the Federal Shariat Court wherein the appellant, Inayat Masih, was convicted for committing sodomy (unnatural offence) against a 5/6-year-old child, Rabia Bibi. The core legal questions involved the sufficiency of ocular and medical evidence to prove the offence of sodomy, whether the appellant qualified as a child under the Juvenile Justice System Ordinance, 2000, and whether the court was duty-bound to suo motu determine the age of the accused when raised at the appellate stage. The court held that the prosecution successfully established the guilt through consistent eyewitness accounts and corroborative medical and chemical examiner reports confirming semen and blood stains. Regarding the juvenile plea, the court noted that while the trial court may suo motu determine age under section 7 of the Juvenile Justice System Ordinance, 2000, no such inquiry was warranted or raised during trial based on mere assertions of age. The conviction was maintained, but considering the period already undergone and the concession of the State, the substantive sentence was reduced to the period already served.
- Whether medical and chemical examiner reports showing semen and blood stains are sufficient to corroborate ocular testimony in a sodomy case?
- Is it mandatory for a trial court to suo motu initiate an inquiry into the age of an accused under section 7 of the Juvenile Justice System Ordinance, 2000 when no such question was raised during the trial?
- Whether an appellate court can reduce a sentence to the period already undergone upon concession by the State and the circumstances of the case?
- Section 2(b), Juvenile Justice System Ordinance 2000
- Section 7, Juvenile Justice System Ordinance 2000
- Section 342, Code of Criminal Procedure 1898
' HAZIQUL KHAIRI, C.J.--- The prosecution story as per statement made by Javaid Masih complainant is that on 29-11-2002 he came back to his village from Lahore after receiving the information from his wife Mst. Maryam Bibi that on 27-11-2002, at 2-30 p.m. Appellant Inayat Masih had committed carnal intercourse against the order of the nature with his daughter Rabia Bibi 5/6 years old. She was taken by his wife, William Masih and Bashir Masih, smeared in blood, from the house of appellant who scaled over the boundary wall of his house and on seeing them he ran away. The appellant made every effort to compromise with his wife but she reported the occurrence to the complainant.
2. In pursuance of this statement formal F.I.R. Was registered. A formal charge was framed against the appellant to which he pleaded not guilty and claimed trial.
3. P.W.2 William Masih and P.W.3 Bashir Masih have furnished ocular account of the occurrence.
According to P.W.2 on 27-2-2002 at 2-30 p.m. He along with Bashir Masih and Mst. Maryam Bibi mother of the victim saw Inayat Masih accused committing sodomy with Mst. Rabia Bibi in- a room. On seeing them the accused Inayat Masih sped away without his Shalwar. P.W.3 Bashir Masih has corroborated him adding that he along with other P.Ws. Were attracted to the place after hearing the cries coming from the house of the appellant where Mst. Rabia was lying smeared in blood in naked condition and the appellant was committing sodomy with her. Their statements gain support from the evidence led by Dr. Farrukh Jalal W.M.O. Who examined Mst. Rabia on 29-11- 2002 as under:--- "Raddish brown swelling present on perianal area, Sphincter tone is normal. On examination of anal canal, a laceration measuring 1.5 c.m. x 0.1 c.m. At 12 O'Clock position visible with redness of mucosa all around. Examination is tender. One swab from the outer part of anus and two swabs from inside anal canal taken, sealed and handed over to the police for onward transmission to the Chemical Examiner Punjab for detection of semen/blood/grouping. According to report of Chemical Examiner the above swa bs are stained with semen and blood. One swab is being sent to Serologist for semen and blood grouping."
' The above clinical data speaks of unnatural sexual offence/ sodomy and the final opinion as per report from the Chemical Examiner was to the effect that the above swabs were stained with semen and blood and was positive.
4. The appellant took the plea that an F.I.R. Under sections 354/337, P.P.C. Was registered by his mother against Pala Masih, grandfather of complainant and William Masih P.W.2 which created enmity between the two families. Although this matter was compromised but the complainant carried a grudge against him and has falsely involved him in this case. His plea finds support from D.W.1 Rehmat Ali. But D.W.2 Muhammad Anwar produced by the appellant said nothing and simply stated that he came to know about the case as he was the neighbour of the accused. The prosecution on the other hand through the P.Ws. Has fully established the case against the appellant. A The medical report establishes beyond any shadow of doubt that sodomy was committed on Rabia Bibi. It is hard to believe that anyone will involve his innocent daughter aged 5/6 years and put the honour of his family at stake.
5. During his arguments learned counsel for the appellant pointed out that the appellant is a child within the meaning of section 2(b) of the Juvenile Justice System Ordinance, 2000 since F.I.R. Dated 29-11-2002 disclosed the age of the appellant as 15/16 years and again in his statement under section 342, Cr.P.C. Dated 5-3-2005 his age is shown as 16/17 years.
' It is true that under section 2(b) a "child" means a person who at the time of commission of an offence has not attained the age of eighteen years. Similarly under section 7 of the Juvenile Justice System Ordinance, 2000, "if a question arises as to whether a person before it is child for the purpose of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child".
However, learned counsel for the appellant, Qazi Muhammad Arshad Bhatti, candidly conceded that no question whether the appellant was a child or not was raised at the trial by the defence, but it was urged B by him that it was the duty of the Court to see itself if the age disclosed by the accused or his counsel was correct or not.
6. No doubt in case where the medical evidence or school certificate or some other evidence on record discloses or where the trial Judge has reasons to believe that the accused is a child, he may take suo motu notice of it and proceed to determine the age of the accused under section 7 of the Juvenile Justice System Ordinance, 2000. There is nothing in section 7 which prevents a Court to itself raise such question to the prosecution and determine the age of an accused.
7. Lastly learned counsel for the appellant conceded that the appellant was rightly convicted but urged that the appellant has undergone sentence for about five years and ten months out of seven years awarded to him which may be considered sufficient and be reduced upto this date.
Similarly his fine may be waived as the appellant is a very poor person.
8. Malik Muhammad Rafique Khokher, D.P.-G. For the State submits that it is a fit case of reduction of sentence and he will not oppose the appellant's counsel. Accordingly I reduce the sentence of the appellant upto this date viz. 11-9-2008 and his fine is also reduced to Rs,1,000 or in default of payment of fine he shall undergo 7 days' S.I. The jail authorities are directed that after payment of fine the appellant shall be released forthwith unless he is required in some other criminal case.
9. These are the reasons vide my short order, dated 11-9-2008 announced in the Court.