JALALUDDIN Versus STATE

Appellants have assailed a judgment dated 24-6-1997 delivered by the Court of Additional. Sessions Judge-III, Quetta whereby both the appellants have been convicted under Article 12 of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years R.I. each with fine of Rs. 20,000 each and in default thereof to suffer further S.I. for six months each.

2. Sabzal Machi, a boy of 14/ 15 years, appeared at Police Station New Saryab District Quetta on 30-8-1995 and made a complaint that four days earlier his donkey cart had a minor accident with a Datsun Pick-up No. QAD-7515. Applicants Jalaluddin and Karim Dad, who were in the Datsun, kidnapped him and on their way towards Sibi both of them committed sodomy with him and then left him at a hotel and ran away. An F.I.R. was lodged at the same police station on the same date at 2155 hours indicating the occurrence to have taken place four days earlier.

Applicants were charged under section 365., P.P.C. and Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but have been acquitted from the first-charge and convicted under the second charge under Article 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer R.I. for 10 years each with fine. of Rs. 20,000 each, in default thereof to suffer S.I. for six months each. Before conviction, both the applicants were on bail.

3. I have heard the learned counsel for appellants and State in details.

4. Since the conviction and sentence has been awarded under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, it shall be in the fitness of things to reproduce the same:

" Kidnapping or abducting in order to subject person to unnatural lust. --Whoever kidnaps or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subjected to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and if the punishment be one of imprisonment, shall be awarded the punishment of whipping not exceeding thirty stripes.

Complainant has made allegation that he was kidnapped in order to subject him to unnatural lust and in fact such unnatural lust was satisfied by both the applicants in the shape of the commission of sodomy with him. He was examined on the same date of complaint i.e. 30-8-1995 by Dr. Muhammad Umer Baloch (P.W.7) Medico-Legal Officer, Civil Hospital Quetta who found no injury or stains on anal orifice and gave his opinion that there was no evidence of any sexual act and violence upon the body and as per Radiological Report his age was between 14/15 years. According to him the anal swabs of the alleged victim were sent for chemical examination and the result was negative.

There is not a single ocular witness to support or corroborate the story of the prosecution.

5. During examination-in-chief, the alleged victim boy Sabzal (P. W .1) has deposed that on the very day of occurrence he was left by the applicants at Sibi at 10/11 night and next day he reached Quetta from Sibi. During cross he has admitted that he did not report the incident at Sibi. He has also admitted that before reaching his house, he had recorded the statement at police station meaning thereby that on the next day of occurrence i.e. on E 31-8-1995 the matte: was reported, but in F.I.R. he is stating that the occurrence had taken place four days earlier. I do not find any explanation for this delay in reporting such a heinous crime committed against a boy o fl Q 14/15 years of age.

6. While examining himself on oath under section 340 (2), Cr.P.C., applicant/appellant Jalaluddin has deposed:

7. In view of this situation, the benefit of doubt is extended to the appellants, the impugned judgment is set aside. The bail bonds of appellants, present on bail, were cancelled by my short order. These are the reasons for, the said order.

H. B. T./1182/FSC ????????????????????????????????????????????????????????????????????????????? Appeal allowed.