AZHAR IQBAL and 2 others vs THE STATE and anothers
This matter concerns a petition for leave to appeal against a judgment of the Federal Shariat Court, which affirmed the conviction and sentence of the petitioners under Section 377 of the Pakistan Penal Code 1860. The petitioners challenged the conviction, arguing that the medical evidence—specifically anal swabs taken four and a half days after the alleged occurrence—could not reliably yield a positive chemical examiner report. Furthermore, the defense contended that the victim's testimony was uncorroborated and implausible, particularly given the victim's claim of not eating or defecating for several days, and the fact that a key eyewitness was not produced while another was disbelieved by the trial court due to existing enmity. The Supreme Court granted leave to appeal to determine whether the prosecution successfully established the petitioners' guilt beyond a reasonable doubt and whether the evidence was appraised in accordance with the established principles for the safe administration of criminal justice.
- Does the delay in taking anal swabs render a positive chemical examiner report unreliable in a case under Section 377 of the Pakistan Penal Code 1860?
- Can a conviction be sustained on the uncorroborated testimony of a victim when other alleged eyewitnesses were either not produced or disbelieved by the trial court?
- What are the principles for the safe administration of justice in criminal cases regarding the appraisal of evidence?
- Section 377, Pakistan Penal Code 1860
ORDER
' KHALIL-UR-REHMAN KHAN, J.---Petitioners seek leave to appeal against the judgment dated 24-4- 1997 of the Federal Shariat Court whereby the judgment dated 17-1-1996 of the Additional Sessions Judge, Chakwal was maintained and the conviction and sentence of the petitioners under section 377, P. P .0 . Was upheld.
2. Learned counsel for the petitioners argued that the anal swabs taken 4-1/2 days after the occurrence could not result into a positive report of Chemical Examiner in the natural course and that the unreasonable explanation of the alleged victim that he had not taken meals for four/five days except water and did not ease for all these days could not be believed, and in the circumstances, uncorroborated testimony of Muhammad Faisal P.W.4/the victim could not safely be relied upon for convicting the petitioners as Sher Baz P.W. Who had allegedly seen the occurrence was not produced and Arshad Mahmood P.W.6, the other alleged witness was not believed by the learned trial Court particularly in the background of inimical relations existing between the parties.
3. Leave to appeal is granted to examine:--
(i) Whether the prosecution has been able to establish the guilt of the petitioners beyond reasonable shadow of doubt; and
(ii) Whether the evidence has been appraised keeping in view the principles enunciated by the superior Courts for safe administration of justice in criminal cases?