2017 P Cr. L J 1623
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
AZIZ ULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 80 of 2016, decided on 31st December, 2016.
Penal Code (XLV of 1860) ---
----S. 377---Sodomy ---Appreciation of evidence ---Ocular account did not corroborate the
medical evidence ---Prosecution case was that the accused -appellant committed sodomy with the
minor son of complainant ---Record showed that victim appeared as witness during trial but did
not state a word in respect of unnatural offence committed upon him ---Victim deposed that his
shalwar was taken off by the accused -appellant who used filthy language against him ---Medical
Officer rendered positive opinion in respect of s odomy on the basis of tenderness observed by
him on the anal region of the victim ---Section 377, Penal Code, 1860 provided that penetration
was necessary to constitute the carnal intercourse--- In the present case, victim was silent about
penetration ---Opin ion rendered by the medical witness was not conclusive in nature ---Medical
opinion was not in line with the procedure contemplated in the medical jurisprudence ---Medico -
legal Report showed the tenderness of anal region of the victim, which under the medica l
jurisprudence could be due to constipation or in case of irregular bowel habits ---Medical Officer
had failed to use the proctoscopy instrument in order to obtain the anal swab and did not notice
any sort of abrasion or injury on the anal region of the vi ctim---No positive report was on record
with regard to semen stained clothes of the victim and the accused -appellant ---Blood group of
accused was not obtained in order to match the semen stains found on the clothes of victim ---
Mere tenderness of the anal r egion was not a conclusive proof of sodomy ---Circumstances
established that prosecution failed to prove the guilt of accused beyond shadow of doubt ---
Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.
Appellant pr esent on bail.
Muhammad Yunus Mengal, A.P.- G. for the State.
Date of hearing: 21st November, 2016.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This order shall dispose of
Criminal Appeal No.80 of 2016 which is directed against the judgment dated 25.06.2016 passed
by the learned Additional Sessions Judge -III, Quetta ("trial court") in Sessions Case No.87 of
2014, whereby the appellant was convicted under section 377, P.P.C. and sentenced to suffer
rigorous imprisonment (RI) for five years with fine of Rs.10,000/ - in default whereof the
appellant has to further suffer Simple Imprisonment (SI) for three months with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that an FIR bearing No.312 of 2014 was registered with police
station Airport, Quetta under section 377, P.P.C. on the complaint of Noor Muhammad with the allegation that on the fateful day his son Samiullah about six years of age who was playing in the street was taken to nearby dairy by the appellant who committed unnatural offence w ith him.
Thus, the FIR was registered against the appellant.
3. After registration of the FIR and completion of investigation, challan of the case was
submitted before the trial court, wherein charge was framed on 25.11.2014 and read over to the
appellant, to which he did not plead guilty and claimed trial. The prosecution in order is prove
the allegation against the appellant produced as many as five witnesses. On closure of prosecution side the appellant was examined under section 342, Cr.P.C., wherein he once again
denied the allegations. However, the appellant neither produced any evidence in his defense nor opted to enter on oath under section 340(2), Cr.P.C. On conclusion of the trial the appellant was convicted and sentenced in the aforesaid terms.
Now through the instant appeal the appellant has invoked the jurisdiction of this court
under section 410, Cr.P.C. and assailed the judgment passed by the trial court.
4. The appellant was not represented by the counsel who despite service of notice was not
appearing before the court, while the appellant showed his helplessness and stated that on
account of his poverty, he is not in a position to ensure the presence of private counsel even he is not in position to deposit the necessary charges for preparation of paper book, however the appellant was present on bail. On the other hand the learned APG was also in attendance and ready to proceed with the matter. So, I have decided to proceed with the matter on basis of the material available on record of the cas e.
5. Learned APG contended that the trial court has been fully justified in recording
conviction against the appellant as the prosecution successfully established the charge against the appellant through cogent, reliable and confidence inspiring evidence. He propounded that the
judgment impugned herein by the appellant does not suffer from any illegality, infirmity, misreading and non- reading of the facts and circumstances of the case, therefore, the same being
unexceptional does not warrant any interferen ce by this court. He urged for dismissal of the
appeal for having no merits.
6. Heard the learned APG and perused the available record with minute particulars. The
appellant was booked in the instant case on 30.9.2014 at about 4:05 p.m on the report submit ted
by PW -1/ complainant Noor Muhammad, alleging therein that on 29.9.2014 his son Samiullah
was playing outside his house when taken to nearby dairy -farm by the appellant Azizullah, who
committed sodomy upon him. On complainant's arrival to his house, his wife appraised him
about the occurrence and next morning asked him to take minor Samiullah along with him who
was not feeling well. On his query the minor Samiullah disclosed that he was taken to the nearby
dairy -farm. He brought his son to the dairy -farm where on pointation of his son, the
accused/appellant was named and identified as perpetrator of sodomy.
7. The alleged minor/victim Samiullah appeared as PW -2 who deposed in the manner: -
PW-3 Gul Muhammad ASI appeared as witness of registration of FIR , medical
examination of minor and the appellant as well as witness of the recovery memo of semen stained clothes of the victim and the appellant.
PW-4 Dr. Ali Mardan appeared and produced medico legal certificate as Ex.P/4 -1 (MLC)
of the victim, which st ates as under: -
* Well oriented with time and space
* Dressed a dark ________ shalwar and kameez a white cap.
* No fresh tears seen on anal region only tenderness +ve.
* No sign of the development of secondary sexual character seen.
OPINION
From forgoing examination I am of the opinion that the young boy was sexually assaulted by the person".
PW-5 Chaudhary Fayyaz, IP appeared as investigating officer of the case, who produced
copy of FIR as Ex.P/5- A, visual sketch of the place of occurrence as E x.P/5- A and also deposed
that after medical examination of the victim and the appellant, their clothes handed over by the doctor were secured in parcel, which was sent for chemical examination to Karachi. He produced the letter of sending the articles to the chemical analyst as Ex.P/5 -C; that on 21.9.2015 on receipt
of analysis report he submitted a complete challan and produced the chemical examiner report as Ex.P/5 -E and supplementary challan as Ex.P/5- F.
8. On conclusion of prosecution case the appellant was examined under section 342, Cr.P.C.
in which he once again professed his innocence, however he did not enter into his defence by recording his statement on oath nor produced any defence witness. The trial court while passing
the conviction through impugned judgment opined as under:
"18. The prosecution produce [sic.] PW -3 recovery witness who stated that on 3.10.2014
he along with other police official and investigating officer Choudary Fayyaz reached at
hospital, where doctor handed over the clothes of victim Samiullah and accused Azizullah which were taken into possession by investigating officer through recovery memo he produce the said clothes as Art.P/2 and Art.P/3. The Investigating officer sent the said clothes to Karachi for chemical analysis th rough letter ELF 5 -C and received
F.S.L report Ex.P/5- E. However, perusal of the said report shows that there is no detail or
manifestations of any detection of specimen from either the clothes of victim or from the clothes of accused Azizullah.
19. Howeve r, the case of prosecution solely rests upon the statement of minor/victim and
the medical evidence. Both corroborated each other on the material point. They were put
to lengthy cross -examination but their credibility could not be shaken. The victim during
his testimony, identified the accused and categorically stated that he was forcibly taken by accused, removed his trousers (shalwar) and abused him.
20. The statement of victim was backed by PW -4, who produced MLC of Samiullah as
Ex.P/4 -A and MLC of accus ed Azizullah as Ex.P/4 -B. It has specifically been mentioned
in MLC Ex.P/4- A of Samiuullah that:
"I am of the opinion that the young boy was sexually assaulted by the person.
21. The prosecution witnesses were subjected to cross -examination but no background of
any enmity or ill- will could be brought on record. There is no reason for false implication
either by victim or by the other witnesses. The details of incident have not been explained
as the core witness/victim was minor of 6 years. However he said that the accused had removed his shalwar and abused him, his stances was proved by the PW -4 who produced
medical statement of victim certifying that the boy has sexually been assaulted".
9. The trial court while recording the conviction observed that in vi ew of statement of
victim, positive medical report, and positive chemical expert's report, rendered a conclusion and convicted the appellant. On reappraisal of the evidence it is observed that neither the complainant nor anyone else is eye -witness of the a lleged occurrence. There is no denial to the
proposition that the conviction can be recorded on the solitary statement of the victim provided that if the same was corroborated by the other circumstantial evidence, particularly, with the opinion rendered by the medical witness. I am afraid that neither first condition of the eye -
witness nor the second condition with regard to corroboration of the medical evidence with the solitary statement of the victim was produced in the trial court. The victim Samiullah in his statement stated that he was caused to fell on ground by the appellant, who took off his trouser (Shalwar) and abused him, while PW -4 Dr. Ali Mardan the medical witness rendered his
observation "no fresh tears seen on anal region, only tenderness +ve" and opined that "from forgoing examination I am of the opinion that the young boy was sexually assaulted by the person". The learned trial court while passing the conviction relied on aforesaid evidence coupled with letter sent for chemical analysis of the semen stained clothes of the victim and the appellant (Ex.P/5- C) and FSL report (Ex.PI5 -E). In the interest of justice, I have requisitioned
the record of the trial court and minutely perused the same. During the course of scrutiny of
record it reveals that victim/PW -2 did not utter a single word in respect of unnatural offence
committed upon him and only deposed that his trouser/shalwar was taken off by the appellant who used filthy language against him.
10. On the other hand the medical witness render ed a positive opinion in respect of sodomy
on basis of tenderness observed by him on the anal region of the victim. The unnatural offence and its punishment is provided under section 377 of the P.P.C. which reads as under:
"377. Unnatural offences : Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which [shall not be less than two years nor more than] ten ye ars, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section".
11. The afore referred provision provides that the offences will be completed when the c arnal
intercourse is taken place while the law on the subject provides that for constituting an offence in afore referred section and to establish the carnal intercourse, the penetration is a condition precedent, therefore, explanation provided in section 377, P.P.C. states that "penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section". But, since the victim is silent about penetration, while the opinion rendered by the medical witness is not conclus ive in nature. The medical jurisprudence provides a complete procedure for
examining the victim of sodomy. The medical opinion rendered by medical witness is not in line with the procedure contemplated in the medical jurisprudence, therefore, it is instruc ted to
produce the relevant procedure for medical examination of the victim of sodomy as provided in the "Medical Jurisprudence and Toxicology" authored by 'Mr. N.J. Modi' in Chapter XVI, page 334 and 335 with caption of sexual offences, which elaborates t he examination of passive agent
in the following manner: -
As in rape, consent must be obtained before commencing a medical examination. The following signs may be discovered if the body (passive agent) is not accustomed to sodomy: -
1. Abrasions on the skin near the anus with pain in walking and on defaecation, as
well as during examination. These injuries are extensive and well -defined in cases where
there is great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days in most of the cases brought before Modi, he had seen superficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the
sphincter ani. In some cases there may be bruising of the parts round about the anus, and the abrasions may extend into the anus beyond its sphincter.
2. Owing to the st rong contraction of the sphincter ani, the penis rarely penetrates
beyond an inch, and consequently the laceration produced on the mucous membrane
within the anus with more or less effusion of blood is usually triangular in nature, having
its base at the anus and the sides extending horizontally in wards into the rectum, Modi had found lacerations internal to the sphincter ani in several cases, but a typical triangular wound only in a few cases. These signs may not be perceptible in cases where the active agent has introduced his penis slowly and carefully without using force into the anus of
the passive agent who is a consenting party.
3. Blood may be found in or at the anus, on the perineum or thighs, and also on the
clothes.
4. Semen may be found in or at the anus, on the perineum or on the garments of the
boy too young to have seminal emissions.
5. Signs of a struggle, such as bruises, scratches, etc, on his person, if he is not a
consenting party.
6. Prolapse of the anus.
7. Gonorrheal discharge, or the presence of a syphilitic chancre.
8. The presence of fecal matter around the anus is a corroborative sign.
12. Alfred Swaine Taylor, (1806- 1880) a renowned scholar in the field of Medical
Jurisprudence discusses "Essentials in the medical examination of the passive partner" and also
laid down certain instruction for medical witness, he states that it is essential for medical examination that a medical witness/medico -legal officer must take a general medical history of
the victim and in cas e of very young or minor child, the doctor should take medical history from
parents or guardian. Thus, this may be taken either at the commencement of the examination or after the physical examination has been completed. Special attention must be given to questions relating to the victim bowel habits, including previous constipation, the regular use of laxative, enemata suppositories. In the most general terms, the younger the passive partner the most likely are the chances of serious injury to the anal ver ge, therefore, acute abrasions may frequently be
seen and these are very superficial and may be present at any part of the circumference of the anal verge. In certain cases haematomata are very frequently seen and these may take the form of an 'all over' s welling over the anal verge. Tearing of the sphincter muscle is rare in the case of
adult and older children and can take place in the case of young children, and in cases where this has taken place there will be considerable laxity of the anal orifice and some time with frank
gapping. The anal fissure has also been observed in certain cases, but it cannot be deducted
without proctoscopy of the anal canal, thus in case of young child who has been subjected to
sodomy the presence of localised injury to the s kin of the anal margin is of greatest significance,
therefore, the presence of fresh, moist, pink coloured anal fissure may support the allegation of penile penetration. It is worthwhile to mention here that in case of child, victim of sodomy, chances of s evere injury are always possible and abrasion on the skin near the anus with pain in
walking and on defaecation as well as during 'examination shall necessarily be observed. (Chapter -5, "Medico- legal examination of the living" Taylor's Principles and Pract ice of Medical
Jurisprudence, Thirteenth Edition- 1984 Edited by A. Keith Mant)."
In the instant case the medico legal report states about the tenderness of anal region
which under the medical jurisprudence can be caused due to constipation or in case of i rregular
bowel habits. The medical doctor has also failed to use the proctoscopy instrument in order to
obtain the anal swab and did not notice any sort of abrasion or injury on the anal region of the alleged victim. While the statement of victim/PW -2 is s ilent about penetration, thus without
obtaining the anal swab of the victim and in absence of positive report with regard to semen
stained clothes of the victim and the accused and without obtaining blood group of accused in
order to match the semen stains found on the victim clothes, on mere tenderness of the anal
region, no conclusive opinion can be rendered whether a sodomy has been committed or not.
13. On the other hand the trial court has relied upon a letter Ex.P/5- C, through which the
semen stained clothes were sent for chemical analysis and FSL report Ex.P/5 -E, but on scrutiny
of file, the letter Ex.P15 -C was perused which states as under:
PERMISSION:
On the report received from DSP/SDIO Airport Circle, Quetta, Police party headed by
ASI/Inv. Gul Muhammad and ASI/Inv: Naseeb Ullah of Police Station Airport, Quetta are allowed to proceed to Karachi (Sindh Province) by official vehicle for shifting of case property in case FIR No.259/2015 under sections 420- 406-34, P.P.C. and arrest of
accused person s 1) Najam Alam and 2) Sohail Alam both by caste Arayen residents of
Malir Karachi wanted/involved in case FIR No.301/2015 under section 489/F, 34, P.P.C. of PS Airport, Quetta.
The Incharge Police party is directed to avoid night travelling due to prevail ing security
concerns.
On return from tour, ASI/Inv: of PS Airport, Quetta will immediately submit a detailed report to this office for the perusal of undersigned without fail".
(Validity of this permission order is up to 01 week from the date of issuance ).
For Senior Superintendent of Police
Investigation, Quetta.
And letter Ex.P/5 -E states as under:
To,
The Senior Superintendent of Police,
(Investigation) Quetta.
SUBJECT: CHEMICAL ANALYSIS OF SPECIMENS
It is to inform you that the following cases are not traceable in this office records till this
date with reference to the following letters number and dated.
Your S. No. Letter No. dated
01 1756- 60/R/Inv 29.01.2014
02 22300- 07/R/Inv 06.11.2014
03 245567- 71/R/Inv 17.12.2014
06 22343- 46/R/Inv 06.11.2014
07 19568- 72/R/Inv 19.09.2014
08 23614- 18/R/Inv 01.12.2014
However please direct the concerned Investigation officer/Police Station to produce the
original receipt showing the serial number and date issued from this office against the
case property at the time of deposition in this office, so that above cases may be traced out.
Furthermore, it is to inform you that the following only three cases as your list at serial
number 04, 05 and 09 are traceable in this office record and all three chemical reports vide No.Lab/ -19231/32 dated 18.12.2014, No. Lab/ -18618/19 dated 05.12.2014 and No.
Lab/-16068/69 dated 16.10.2014 already sent to concerned Police Station as per office
record. However the attested ph otocopies of said reports are being forwarded in the
interest of justice.
(DR. FAZAL ILLAHI MEMON)
DIRECTOR LABORATORIES AND
CHEMICAL EXAMINER TO THE GOVERNMENT OF
SINDH, KARACHI
14. The aforesaid letter Ex.P/5 -C was in respect of permission accorded by th e Senior
Superintendent of Police (SSP) for shifting of case property in case FIR No.259 of 2015, under sections 420, 406, 34, P.P.C. and arrest of accused persons viz, Najam Alam and Sohail Alam
both by caste Arayen residents of Malir Karachi, who were wa nted/involved in case FIR
No.301/2015 under sections 489/F, 34, P.P.C. of Police Station, Airport Quetta. Thus, the
reliance placed by the trial court on Ex.P/5 -C was misplaced because the letter was not in respect
of instant case, this case was lodged vid e FIR No.312 of 2014 of Police Station, Airport Quetta,
under section 377, P.P.C. On the other hand Ex.P/5- E was a letter bearing No. LAB/ -14093,
dated 13.8.2015 sent by Dr. Fazal Ellahi Memon (Director Laboratories and Chemical Examiner to the Government of Sindh, Karachi) to the Senior Superintendent of Police (Investigation) Quetta captioned as "chemical analysis of specimens", which provides a detail of eight cases and states that "following cases are not traceable in this office records".
15. As stated hereinabove this case was lodged vide FIR No.312 of 2014 but the said FIR
was not mentioned in Ex.P/5- E. I am dismayed to observe that the learned trial Judge while
recording the conviction against the appellant has not only relied upon the aforesaid two exhibits
but also opined that semen stained clothes of the appellant and the victim were sent to the chemical examiner and also relied upon the letter Ex.P/5 -E which was not a chemical examiner
report.
16. It may not be out of place to mention here that po lice is supposed to arrest an accused to
conduct the investigation, while the Medico- legal Officer/police surgeon is supposed to render
the opinion and only the court under the law has jurisdictional domain to decide the fate of the case on basis of papers of indictment, deposition of witnesses and opinion rendered by the
chemical examiner/expert, but if the court shuts its eyes from this basic principle that the accused shall be presumed innocent till proven guilty; and, that the initial burden lies upon t he
prosecution to prove its case beyond shadow of any doubt; that when the prosecution case hinges upon the presumption alone then howsoever strong the presumption may be, the presumption of innocence can only be drawn in favour of accused and the presumpt ion in no case can lead to the
guilt of the accused.
In the instant case it looks that the learned trial judge instead of appreciating the evidence
like separating the grains from chuff, passed the conviction on basis of papers of indictment. If this tend ency was permitted then the edifice of criminal justice system will collapse and very
necessity of the court of law will become redundant. Then there would be no need to put the accused to trial and criminal cases will be decided on basis of opinion of pol ice and non-
conclusive opinion of medical witness. Thus, this practice will ultimately take us to a Stone Age, where there will be no need to lead the evidence and to establish the allegation on oath subject to
cross -examination of the opposite side and ve ry purpose of constituting the courts will be
diminished. Thus, this practice will further amount to violate the basic fundamental right of the citizen as envisaged under Chapter -I of the Constitution of Islamic Republic of Pakistan, 1973,
which stipulates the equality of citizen and his right to be dealt with in accordance with law
(Article -4), no one shall be deprived from a life and liberty except in accordance with law
(Under Article -9) the right of fair trial (under Article 10 -A) will altogether lose their existence,
applicability and adherence.
17. Therefore, for the above reasons vide short order dated 21.11.2016, the appeal was
accepted and the impugned judgment dated 25.6.2016, passed by the learned Sessions Judge -III,
Quetta was set aside and the appellant was acquitted of the charge.
However, office to transmit the copy of this judgment to the Inspection branch, with
direction to call upon the learned trial judge to justify the conviction recorded by him. The explanation shall be placed before the undersigned for perusal in chamber.
JK/93/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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