ORGANON PAKISTAN (PVT.) LTD. Versus RAFAT ALT KHAN

ORDER

This Criminal Miscellaneous Application under section 426, Cr.P.C. prays for suspension of the order/judgment appealed against and that the appellants, being in confinement be released on bail pending decision of the case.

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-7517. 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 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. At this, stage, it shall not be in accordance with the set principles of law to discuss the merits of the case. However, a tentative assessment of the record before me shall be essential to decide this application on its own merits and this tentative assessment must not affect the case when it comes up for regular hearing.

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 tray 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 war 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 reports the incident at Sibi. He has also admitted that before reaching his house, he had report the statement at police station meaning thereby that on the next day of occurrence i.e. on 31-8-1995 the matter 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 of 14/15 years of age.

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

Applicant Karim Dad has also taken the same stand in his deposition under section 340(2), Cr.P.C.

7. In view of this situation, the learned counsel for applicants has contended that in spite of clear allegation of sodomy under section 377, P.P.C., which is not proved, conviction under Article 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 does not discuss the essential ingredient of motive for kidnapping. F.I.R. is delayed at least by three days and the complainant is not corroborated from any evidence on the record.

Both the learned counsel for State have conceded that this is a fit case in which discretion conferred on this Court under subsection (1) of section 426, Cr.P.C. may be judiciously invoked in favour of the applicants. I had already suspended the sentence and ordered for release of the applicants on bail vide my short order dated 6-8-1997. These are the reasons for the said order. Applications admitted.

H.B.T./1183/FSC Application admitted.