HAZRAT BILAL vs The STATE and anothers

' ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 16-3-2012 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Matta, whereby Hazrat Bilal , the appellant, involved in case F.I.R. No,131 dated 22-6-2011 under section 377, P.P.C. Read with section 12 of the Offences of Zina (Enforcement of Hadood) Ordinance, 1979 registered at Police Station Kalakot Matta, was convicted under section 377, P.P.C. And sentenced to undergo seven years, however, benefit of section 382-B, Cr,P.C. Was extended to him.

2. Facts of the case are that complainant Daud aged about eight (8) years lodged a report that on 22-6-2011 he had gone to Madrasa of "Masjid Sadiq" on that day Qari Sajid Ullah was not present, therefore, Monitor Bilal son of Muhammad Basheer at 1600 hours permitted the other boys to go back, however, he was directed to stay here. When the other boys got out from the Madrasa, Hazrat Bilal forcibly took off his trousers and committed sodomy upon him. After the commission of offence, the accused directed him not to disclose the event to anyone. Thereafter, he came to his house and narrated the occurrence to his mother and she informed his uncle. The report of complainant was reduced into writing in shape of F.I.R. Exh.PA, which the complainant signed as token of its correctness while Muhammad Usman, the uncle of complainant, signed the same as its rider.

3. After completion of the investigation, challan was submitted in the Court for trial. Since, the accused was declared as Juvenile Offender, therefore, his case was tried by the Judge, Juvenile Court, constituted under the Juvenile Justice System Ordinance, 2000. Learned trial Court, after conclusion of the trial and hearing the arguments of parties, convicted the present appellant as stated above.

' Learned counsel for the appellant-convict argued that the judgment of learned trial Court is against law and facts which is the result of misappreciation of evidence on record. He argued that there is four hours delay in lodging of report, therefore, the question of deliberation and consultation cannot be ruled out. He argued that the evidence furnished by the complainant as P.W.2 is not in consonance with the other P.Ws. And is full of contradictions. He argued that the trial Court has totally ignored the factum of age of the appellant and also the provisions of Juvenile Justice System Ordinance, 2000 as in case of conviction it was required for the trial Court to have sent the appellant to Borstal House or otherwise to release him on probation. He argued that the prosecution has miserably failed to prove its case against the appellant-convict, therefore, the sentence is liable to be set aside and the appellant/convict deserves acquittal.

' Learned A.A.-G. Appearing on behalf of the State and learned counsel for complainant argued that the appellant is directly charged by the complainant-cum-victim in the F.I.R. For committing sodomy upon him. He argued that the victim is aged about 7/8 years and his statement is cogent, consistent and convincing and in spite of lengthy cross-examination it could not be shattered, therefore, his statement alone is sufficient for conviction of the accused. He contended that the prosecution evidence is fully corroborated by the statement of doctor and the report of Chemical Examiner. He finally submitted that the accused committed sodomy with the victim in sanctified place, i.e,, mosque and the defence failed to prove any enmity between the accused and the complainant, therefore, the sentence awarded to the accused by the trial , Court may be maintained.

4. Arguments of learned counsel for the parties were heard and record of the case perused.

5. No doubt, there is delay in lodging of the report for about four hours but the same has reasonably been explained. The complainant stated in his report that on arrival to his house, he narrated the happening to his mother, thereafter, his mother informed his uncle, therefore, delay, if any, in lodging of F.I.R. Is not exceptional in our society as the people avoid the glare of undesired publicity and the parents in such like cases feel their disgrace and humiliation to which they were put to by the accused, therefore, delay of four hours in making the F.I.R. Is not fatal to the prosecution case in such like cases specially when the identity of appellant-convict is not doubted B and other sufficient evidence on the record which established the guilt of convict-appellant.

6. The charge levelled against the appellant is of very grave in nature as the complainant-victim, a boy of 7/8 years caught hold by him and committed sodomy upon him in and that too, in the place of worship. A careful examination of the statement of victim Muhammad Dawood shows that he has narrated the occurrence in detail. It is consistent and rational and it is unbelievable that a boy of 7/8 years could make out a false case to involve the appellant or that he could substitute the accused for someone else. The complainant has fully implicated the accused for commission of unnatural offence with him. The version of complainant has further been corroborated by the medical evidence. Dr. Hadayat Ullah when appeared as P.W.7 fully supported the version of the complainant and confirmed his report marked as Exh.P.W.7/1. He stated that he examined the victim minor Dawood aged about eight (8) years brought to him by Constable Zahid Ullah. He further n6ted bleeding from anus of the victim and confirmed that the victim was sodomized. P.W.1 Dr. Manzoor has testified that accused is adult and able for sexual act.

7. It is undisputed that the victim of the occurrence namely Muhammad Dawood at the time of occurrence was aged about 7/8 years, who did not carry any grudge or malice against the appellant to falsely implicate him in the case. The accused has committed sodomy upon the minor in the mosque. The medical Officer admittedly was an independent person has no reason to give false statement favouring the victim. Penetration has been proved as the Medical Officer found bleeding from the anus of the victim at the time of examination. The complainant (P.W.2) and the Medical Officer (7) were subjected to lengthy cross-examination by the learned defence counsel but nothing damaging aspect was extracted from their mouth. The statement of the victim is reliable and trustworthy arid cannot be discredited in any manner whatsoever while the contradictions pointed out by the learned counsel for the appellant would not make the whole case unbelievable rather it could very easily be ignored.

8. The contradictions referred to by the learned counsel for the appellant are not fatal to the case of the prosecution being minor on all the important issues and facts, particularly, when no enmity was shown between the parties and the statement of complainant was fully supported by the evidence of Medical Officers, Investigating Officer and positive report of FSL. In such like cases, conviction could be based on the solitary statement of the victim provided the same is capable to reliance and is corroborated by medical as well as circumstantial evidence. Reliance in this regard is placed, on the cases of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 412 and Rana Shabaz Ahmad and 2 others v. The State 2002 SCM R 303 wherein it has been held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence.

9. So far as the argument of learned counsel for non-releasing the appellant on probation by the trial Court is concerned, no doubt, under section 11(a) of the Juvenile Justice System Ordinance the Court has discretionary powers to release on probation a child found to have committed the offence but his request is not convincing one because as per evidence the accused has committed sodomy in the holy place. Malakand Division is special area and the people over there always strive hard for implemtation of Sharia laws. The appellant has committed the offence in the holy mosque which is heinous, scandalous gruesome, brutal and the punishment is one of the modes to give an impression of deterrence to the public at large and release of appellant on probation in such like cases would certainly give an impression that no law is there to restrain people from the commission of such like offences. We have to curb such like offences otherwise it would definitely affect the whole society. However, it is ordered that the appellant-convict be sent to 'a Borstal institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier.

10. As a sequel to above discussion, I am of the firm view that the impugned judgment does not warrant any interference, which is maintained. The punishment provided for section 377, P.P.C. Shall be imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years and shall also be liable to fine. Since, the trial Court has only convicted and sentenced the appellant under section 377, P.P.C. For seven years imprisonment and not imposed fine, which is mandatory, therefore, the accused is also fine to Rs,5,000, which shall be paid to the victim and in case of non-payment of fine he shall further undergo SI for six months.

' This appeal is dismissed.