MUHAMMAD BILAL HUSSAIN Versus State
ABDUL MAALIK GADDI, J .---Through this appeal, the appellant has assailed the legality and propriety of the judgment dated 09.3.2018 passed by the learned VI-Additional District and Sessions Judge, Karachi (East) in Sessions Case No.350/2012 (Re: The State v. Muhammad Bilal Hussain), in Crime No.47/2012 registered under section 377, P.P.C. at Police Station Brigade, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in point No.2 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the said point, which reads as under:-
"Point No.2.
"In view of my findings given on the Point No.1, I held accused Muhammad Bilal Hussain guilty of charge under section 377, P.P.C. for commission of sodomy with victim/boy Muhammad Faizan and prosecution is succeeded to prove its case beyond reasonable doubt. Therefore, I convict accused Muhammad Bilal Hussain under section 265-H(ii) Cr.P.C. and sentenced him to suffer rigorous imprisonment for ten years and imposed fine of Rs.50,000/- (Fifty Thousand), in case of default of payment of fine the accused shall undergo for one month as simple imprisonment. I also extend benefit of section 382(b), Cr.P.C. to accused and his earlier period of detention shall be counted towards his sentence awarded to him. The accused Muhammad Bilal Hussain is present on bail; he is taken in to custody and remanded to Central Prison Karachi to serve out the sentence period awarded to him."
2. The brief facts of the prosecution case are that on 23.02.2012 between 1900 hours to 1930 hours the present appellant/ accused inside office of Sidratul Muntaha near Lazzat-e-Shireen, Madina Road, Jacob Lines, Karachi committed sodomy with a child namely Muhammad Faizan aged about 05 years. Hence this FIR.
3. As per record, the charge was framed against the appellant/ accused on 21.5.2012 by the learned trial Court, to which appellant/accused pleaded not guilty and claimed to be tried vide his plea at Exh.2/A.
4. At trial, in order to establish accusation against appellant/accused, prosecution had examined PW-1 Muhammad Rashid at Exh.3, who produced memo of site inspection at Exh.3/A; PW-2 complainant Muhammad Nazeer at Exh.4, who produced FIR at Exh.4/A and memo of arrest at Exh.4/B; PW-3 ASI Muhammad Rafiq was examined at Exh.5; PW-4 MLO Dr. Kaleem was examined at Exh.6, who produced medico legal certificate No.1514 at Exh.6/A and letter for medical examination of accused at Exh.6/B, PW-5 MLO Dr. Syed Farhat Abbas at Exh.7, who produced letter for medical examination of victim as Exh.7/A, medico legal certificate No.J-1494 and report of NICH at Exh.7/C; PW-6, victim Muhammad Faizan at Exh.8; PW-7, SIP Qurban Hussain Abbasi at Exh.9, who produced DD entry No.38 at Ex.9/A, DD entry No.51 at Exh.9/B, letter dated 24.02.2012 at Exh.9/C, letter addressed to chemical examiner at Exh.9/D and chemical report at Exh.9/E. These witnesses were cross-examined by the counsel for accused. Thereafter, learned ADPP for State closed the prosecution side vide Statement at Ex.10.
5. Statement of appellant/accused was recorded under section 342, Cr.P.C. at Ex.11, in which he has denied the allegations of prosecution and claimed to be innocent and has falsely been involved by the police in this case but he has not opted to give his statement on oath but examined witness in his defense namely Muhammad Ashfaq at Exh.12.
6. Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated in this case and there are also inherent defects in the evidence of prosecution witnesses and they are all interested to depose against the appellant; that evidence of prosecution witnesses is inconsistent and cannot be believed and relied safely for conviction of the appellant and appellant is entitled for benefit of doubt; that victim boy who was aged about five years at the time of occurrence. Complainant father of the victim lodged FIR on 08:15 p.m. and deposed in cross-examination that he arrived at 8:00 p.m. or 8:15 p.m. at police station. The police station is at a distance of half an hour. The going on foot towards the police station would be hardly covered in the half an hour. The star witness of the prosecution is Rashid and his evidence is in a conflict with the father of victim and he has not stated that the father of boy informed him about this incident. The persons from the locality were also available but no any independent witness was engaged or any statement of the person was recorded. He lastly argued that no such incident took place and there are sufficient contradictions in between the 161, Cr.P.C. statements and deposition of the witnesses for which the accused is entitled for benefit of doubt and the same may be extended to him and he may be acquitted from the charges.
7. Conversely, the learned Additional P.G. for the State, assisted by the learned counsel for the complainant has opposed the arguments advanced by the learned counsel for the appellant/ accused and argued that the prosecution examined in all seven witnesses, wherefrom complainant Muhammad Nazeer who has promptly lodged the FIR and got medically examined the victim from Jinnah Hospital Karachi under the proper police letter has completely supported the version of prosecution. He has produced his FIR, memo of site inspection which has been supported by the PW Muhammad Rashid also who has not been cross-examined by the defense counsel though chance was given. The complainant remained very constant during the lengthy cross-examination conducted by the defense counsel.
8. I have heard the learned counsel for the appellant, learned A.P.G. assisted by learned counsel for complainant and after going through the record, I have come to the conclusion that the prosecution has proved its case against the appellant for the reasons that in this matter complainant Muhammad Nazeer, who is the father of victim Muhammad Faizan has registered the FIR on 23.02.2012 at 2015 hours without any inordinate delay stating therein that on the relevant date and time when victim Faizan returned back to his house, he was weeping and blood was oozing from his private part, who informed him that appellant has committed sodomy with him.
9. In order to prove the allegation, the prosecution has examined in all 07 witnesses including victim Faizan, who in his evidence available on record as Exh.8 in the file of trial Court supported the prosecution case by stating as under:
"On 23.02.2012 at the time of Maghrib, when I was going to purchase toffees from the nearby shop of Muhalla, meanwhile the accused Bilal called me on the way and he accompanied me came at the office of travelling agency, where accused was working, which was situated nearby my house and where he committed sodomy with me, the blood started oozing my anal, then the accused directed me to say that I had dropped in red colour water then I came at my house where I narrated such facts to my parents, thereafter, my father brought me at Police Station and then hospital where I was medically examined. The victim pointed out specifically in the Court that accused Bilal standing in the Court is same who had committed the sodomy with me."
10. The contention of learned counsel for convict/appellant that PW namely Faizan was minor aged about 5 years at the time of occurrence and was aged about 11 years at the time of his evidence, therefore, his evidence may be discarded/ brushed aside and also cannot be safely relied upon for conviction, is misconceived. Needless to mention here that no age limit of a witness has been prescribed under Article 3 of the Qanun-e-Shahadat Order, 1984. The evidence of a child witness is also admissible unless the Court considers that a witness is prevented from understanding the questions put to him or from giving rational answers. For the sake of convenience, Article 3 of the Qanun-e-Shahadat Order is reproduced as under:
"3. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind:
Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence:
Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways:
Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available."
It is evident from the perusal of above quoted provisions of law that no particular age of a witness is mentioned in it. It is for the trial Court to determine as to whether or not a witness is prevented from understanding the questions put to him because of his tender age. Meaning thereby, a child witness is quite competent to give evidence in Court, provided he or she understands the questions put to him or her and rational answers to the said questions. The Hon'ble Supreme Court of Pakistan in the cases of 1997 SCMR 1595 (Muhammad Jamal and others v. The State) and 2009 SCMR 1428 (Mst. Razia alias Jia v. The State) maintained the conviction of accused on the basis of statements of child witnesses.
Here in this case, the age of a witness (victim) at the time of his evidence was 11 years and the learned Presiding Officer of the trial Court in order to testify his intelligence put certain questions to him, which he answered properly, therefore, his evidence was recorded and in his evidence, victim Faizan has implicated the appellant as his accused in this case. It is pertinent to mention here that during the evidence of victim, no cross question was put to him by the counsel for the appellant regarding his sensibility or otherwise.
11. It appears from the record that MLO Dr. S. Farhat Abbas who had examined the victim has been examined before trial Court at Exh.7. He produced the medical certificate, certified the sodomy with the victim Faizan, such certificate has been produced during the course of evidence. No cross-examination was also made from such star witness of the prosecution. The victim Faizan himself has been examined, who has fully supported the version of prosecution and specifically identified the appellant/ accused and pointed out that the said accused had committed the sodomy with him.
12. I have also gone through the evidence of Dr. Kaleem, available on record at Exh.6, who in his evidence produced the medico legal certificate on record at Exh.6/A. This Doctor in his evidence has confirmed that the appellant having to perform sexual intercourse. This Doctor has also not been cross-examined at all by the counsel for the appellant. It appears that the evidence of this Doctor has gone to be un-rebutted and unchallenged.
13. I have also gone through the evidence of complainant, available on record at Exh.4, who in his evidence has given detailed facts of the happening with the victim Faizan. Complainant is the father of victim, he narrated all the facts, which were disclosed to him by victim Faizan. Despite of lengthy cross-examination, nothing adverse brought on record that the appellant has not committed sodomy with the appellant. I have also perused the evidence of Muhammad Rafiq available on record as Exh.5, who also supported the prosecution case. I have also perused the evidence of I.O. of the case namely SIP Qurban Hussain Abbasi, available on record at Exh.9, with the able assistance of the parties' counsel and come to the conclusion that this witness has conducted the investigation and according to him that after due investigation and recording the statement of prosecution witnesses, has submitted the challan against the appellant in the commission of the offence. Though this witness has been cross-examined but nothing adverse come on record in favour of the appellant.
14. From the perusal of above evidence, it prima-facie appears that appellant has committed sodomy with minor Faizan. The ocular account is supported by medical evidence.
15. It is argued by counsel for appellant that the appellant is innocent and the FIR is delayed by few hours, therefore, false implication of appellant in this case cannot be ruled out. I am not convinced with this argument for the reasons that incident took place on 23.02.2012 in between 1900 hours to 1930 hours and the FIR was lodged on the same day at about 2015 hours. From the facts and circumstances of the case, there is no delay occurred in lodging of FIR.
16. I have considered the evidence available on record. Perusal of record shows that all witnesses, who have appeared in trial from prosecution side, were subjected to cross-examination but nothing has come on record to discredit their evidence. The version of complainant and victim is consistent and found supported by medical evidence. They have no enmity whatsoever with the appellant. Merely saying by the appellant that case against him is false without any evidence in this regard is no ground to discredit the evidence of complainant party.
17. As observed above, the evidence led proved beyond reasonable doubt that the appellant had committed sodomy and the testimony of ocular witnesses, mashir of arrest and recovery is found confidence inspiring and unimpeachable. There could not be any reason on their part to falsely implicate the appellant in connection of such serious and heinous crime.
18. In view of above discussion, I see no error or illegality in the impugned judgment warranting interference by this Court, which is maintained, accordingly, this appeal being devoid of any force is dismissed along with listed applications.
SA/M-199/Sindh Appeal dismissed.