MUHAMMAD ASHRAF Versus STATE
This criminal appeal filed by Muhammad Ashraf son of Allah Bakhsh resident of Jhoke Hafizwali, District Bhakkar, is directed against the judgment dated 4-4-1996 passed by the learned Sessions Judge, Bhakkar, whereby he has convicted him under section 377, P.P.C. and sentenced him to eight years' R.I. and a fine of Rs.15,000 or in default of payment of fine further three years' R.I. The benefit of section 382-B, Cr.P.C. has been extended to him. His co-accused namely Iltaf Hussain and Saif Ullah have been acquitted of the charge.
2. It may also be mentioned that Muhammad Ashraf appellant/accused, Iltaf Hussain and Saif Ullah acquitted co-accused had previously faced trial in a case registered under the same F.I.R. No. 102, dated 19-5-1993 of Police Station Saddar, Bhakkar but Iltaf Hussain and Saif Ullah were acquitted of the charge while Muhammad Ashraf appellant/accused had been convicted under section 377, P.P.C., and sentenced to 7 years' R.I. and a fine of Rs.10,000 or in default of payment of fine further two years' R.I. However, that judgment on appeal was set aside and the case was remanded to the learned Sessions Judge for re-writing of judgment in accordance with law after re-assessment of the evidence produced by the prosecution and the defence. Thereafter, the learned Sessions Judge passed the impugned judgment. A notice was also issued to the acquitted co-accused by this Court.
3. Briefly stated it is the case of prosecution as narrated by Ijaz Hussain on 19-5-1993 in F. I. R. No. 102 Police Station Saddar' Bhakkar that he is a 9th class student. On 18-5-1993 after pack up when he was returning from school on his bicycle; Iltaf Hussain, Muhammad Ashraf and Saifullah who were standing near Basti Isran, stopped him and forcibly de-boarded him from bicycle. Thereafter, they took him to a nearby sugarcane field and all the three subjected him to carnal intercourse. All the time he kept on raising hue and cries on account of pain. While Muhammad Ashraf was committing carnal intercourse, at that time Lashkar Ali and Riaz Hussain reached the place of occurrence. On seeing them the accused ran away. He went to his house in weeping condition and informed his father. The accused had been entreating for compromise but they did not agree. He lodged report and requested for necessary legal action. The accused were arrested and after necessary investigation challaned to face the trial on 20-6-1993.
4. At the trial the prosecution examined seven witnesses in all. P. W.I. is Najeeb Ullah, H. C. He kept three sealed phial and one sealed envelope in Malkhana on 19-5-1993 an handed over these parcels to Ghulam Shabbir, Constable P.W.2 on 21-5-1993 who transmitted the same to the office of Chemical Examiner, Rawalpindi intact. P.W.3 is Ijaz Hussain. He is the complainant who reiterated his statement as mentioned hereinabove. P.W.4 is Lashkar Ali. He is the eye-witness who supported the prosecution version. P.W.5 is Falak Sher, A.S.I. he recorded Exh. P.A on the statement of Ijaz Hussain on 19-5-1993. He investigated the case, arrested the accused and submitted challan. P.W.6 is Dr. Khalid Javed who medically examined the accused and found them fit to perform sexual intercourse. C.W. 1 is Zulfiqar Ali, H.C. He is a formal witness who brought the despatch register of S.P. Office, dated 19-5-1993 P.W.7 is Dr. Zahid Hussain. He medically examined the complainant/victim on 19-5-1993 and recorded the following findings:--
"Gait. It was not painful.
External examination. Slight abrasions were present on both elbows and knee joints. No other mark of violence was present on any other part of the body.
Examination in knee elbow position. An external swab was taken for onward transmission and detection of semen and blood. There was a linear tear 1/2 x 1/4 c.m. on 5 O'Clock position on anal margin on this position.
P.R. examination:
Slightly painful. Finger was stained with faecal matter but not with blood. Anal sphincter-tone was normal.
Proctoscony. It was done in knee elbow position faecal matter was present. Also, slight hyperemia" (redness" with swelling) was present in anal canal)."
He took two swabs and sent the same to the Chemical Examiner for detection of blood and semen. On receipt of Chemical Examiner's Report Exh. PG he opined that act of sodomy was performed with the boy/examinee.
5. The appellant/accused made a statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocent. While responding to a question "Why this case against you and why the P.Ws. have deposed against you;" he made a statement in the following words:--
"On account of enmity, the P.Ws. have deposed against me. I am real P.W. nephew of Iltaf Hussain my co-accused. Riaz Hussain P.W. complained to the police against my uncle Sheru. Fazal Muhammad and Iqbal my cousins had given beating to him. The complaint was found false and preventive action was taken against the complainant party. Riaz P.W. had a grudge against me and my family, therefore, he got me involved in this case. Riaz P.W. had got registered a case under section 377, P.P.C. against one Zulfiqar. The case was false and was cancelled, as such the P.Ws., are in the habit of getting false cases registered. Similar is the position in this case. I am quite innocent. The complainant family and my family were inimical to each other. My father during consolidation proceedings got sanctioned a passage from the land of Riaz Hussain P.W. Against that sanctioned passage Riaz Hussain P.W. sought remedy in the higher Courts but in vain, as such with the connivance with the son of his tenant he falsely implicated me in this case."
He declined to make a statement on oath in disproof of the charges made against him and also produced no evidence in defence. However, he relied upon the defence evidence produced by Altaf Hussain acquitted co-accused.
6. I have heard the learned counsel for the parties and have perused the record with their assistance. So far as the acquitted co-accused Iltaf Hussain and Saif Ullah are concerned there is neither any appeal nor any revision filed against their acquittal. The only evidence that transpires against them is the statement of P.W.3 Ijaz Hussain complainant which is corroborated by the ocular evidence furnished by P.W.4 Lashkar Ali only to the extent of Muhammad Ashraf appellant/accused committing sodomy.
He only saw the other two acquitted co-accused Iltaf Hussain there. He had not seen either of them committing sodomy upon him. P.W.7 Dr. Zahid Hussain who was recalled for re-examination also deposed that he cannot give definite opinion as to whether sodomy with Ijaz Hussain was committed by a single person or more than one persons. In this view of the matter the learned trial Court has rightly extended them benefit of doubt and acquitted them of the charge. The learned counsel for the State also concedes in this respect. The order of their acquittal recorded by the learned trial Court is, therefore, maintained.
They are present on bail. Their bail bonds as well as notice issued against them are hereby discharged.
7. However, as far as the case of appellant/accused Muhammad Ashraf is concerned there is the evidence of P.W.3 and P.W.4 against him. Both P.W.3 and P.W.4 have been subjected to lengthy cross-examination but nothing fruitful to the defence has been adduced from their statements and their statements remained un-shattered. Various suggestions put to the complainant regarding allegation against some other person about the same occurrence have been denied. Similarly suggestion in respect of submission of an application to the concerned Head Master has been denied and the said application has been stated to be fabricated. The defence has produced nothing to lend support to the said suggestions. The statement of complainant inspires confidence and he appears to be a truthful person. Though the matter has been reported with delay but that has been plausibly explained and the case of prosecution cannot be dismissed merely on the basis of delayed report only. His statement is fully corroborated by the deposition made by P.W.7 Dr. Zahid Hussain who observed a tear on anal margin. Though the Chemical Examiner's Report reveals that the swabs were not stained with semen and the external swab was stained with blood, it is to be appreciated that the occurrence took place on 18-5-1993 at about 2-00 p.m. and his medical examination was conducted on 19-5-1993 at 6-00 p.m. So, it is evident that more than 24 hours had passed and the Report of Chemical Examiner could not naturally be positive in respect of swabs. However, the report coincides with the observation made by P.W.7 Dr. Zahid Hussain in his medico-legal report. Since the blood emanates intermittently, the Chemical Examiner's Report reveals presence of blood on the external swabs. P.W.7, therefore, positively opined on the basis of Chemical Examiner's Report Exh.PG that act of sodomy was performed with the boy/examinee. Though no grouping of semen has been made but it is immaterial as the Chemical Examiner's Report in respect of semen is negative. The plea of enmity raised by the appellant/accused is not substantiated by any cogent piece of evidence. Even otherwise it would be unnatural for a sane person to subject his honour and the honour of his family by fabricating a false case of this nature against some person on account of petty enmities. In this view of the matter, I have come to the conclusion that the case of prosecution against the appellant/accused is established beyond any reasonable doubt.
8. Consequently, for the reasons stated above, I dismiss the appeal and maintain the conviction and sentences of the appellant as awarded to him by the learned Trial Court on 4-4-1996. The benefit of section 382-B, Cr.P.C. extended to him shall remain intact.
N.H.Q./1139/FSC Appeal dismissed.