2020 P Cr. L J 810
[Balochistan (Sibi Bench)]
Before Rozi Khan Barrech, J
NISAR AHMED alias CHALOO ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. (s) 09 of 2019, decided on 9th October, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 377 ---Unnatural offence ---Appreciation of evidence ---Ocular and medical evidence---
Corroboration --- Accused was charged for committing sodomy with the nephew of
complain ant---Complainant reiterated the contents of FIR and narrated the entire story in line
with fard -e-bayan---Evidence of the said witness was subjected to lengthy cross -examination,
but nothing beneficial had come out on record in favour of the accused--- Victim had narrated
the whole story with regard to the occurrence ---Statement of the victim was in line with his
earlier statement--- Said witness was cross -examined at sufficient length but nothing fruitful
had come out on record in favour of the defence ---Bo th the complainant and victim remained
consistence and firm in their deposition--- Said witnesses accurately uttered the date, time and
manner in which the accused committed sodomy with the victim ---Ocular testimony
produced by the prosecution was direct in nature and the same remained unshaken,
consistent, confidence inspiring on all material counts ---Medical evidence reflected that
victim had been sexually assaulted ---Medical evidence had remained unshaken and
unchallenged ---Medical certificate of accused showed that he was potent and able for sexual
intercourse ---Both the ocular and medical evidence were in line with each other ---
Admittedly, the victim was a minor, but nothing on record showing that he was tutored by
his elder ---Statement of the victim had fully been corroborated by the circumstantial
witnesses and medical evidence--- Accused had failed to point out any misreading and non-
reading of evidence and major contradictions in the statements of witnesses or any material illegality or irregularity in the impugned judgment warranting interference ---Appeal being
devoid of merits was dismissed.
Muhammad Shah v. State 1991 MLD 1944 rel.
(b) Criminal trial ---
----Witness --- Related witness --- Statement of related witness ---Reliance ---Scope ---Related
witne ss is as much competent witness, as any other, provided he is not inimical towards
accused and has no motive to implicate the accused in a false case.
(c) Penal Code (XLV of 1860)---
----S. 377 ---Unnatural offence ---Appreciation of evidence ---Solitary sta tement of victim---
Scope ---In case of sodomy or zina, the solitary statement of victim is sufficient to convict the
accused if, it is confidence inspiring.
Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed
and another v. The State 2007 SCMR 473 rel.
Inayatullah Marghzani for Appellant.
Abdul Mateen, Deputy Prosecutor General ("DPG") for the State.
Date of hearing: 26th September, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The Instant Criminal Jail Appeal is directed agains t
the judgment dated 03.06.2019 passed by the learned Additional Sessions Judge, Nasirabad
at Dera Murad Jamali, whereby the appellant has been convicted and sentenced as under: -
Under section 377, P.P.C. and sentenced to suffer four (05)(sic.) years' R.I . with fine
of Rs.10,000/ - (Rupees Ten - Thousand Only) and in default of payment the
appellant/convict shall undergo for a period of six (06) months' S.I. Benefit of section 382- B, Cr.P.C. was extended in his favour.
2. Brief facts of the case are that, FI R No.43 of 2018 was registered on 04.05.2008 at
Police Station Dera Murad Jamali on the written report of complainant Jan Muhammad with the averments that on the aforesaid date, he was going for offering of Juma prayers. At about 01:45 p.m., from an open p lace the noise of crying of his nephew namely Shah Zaib was
coming. On this the complainant entered into that place, where he saw that Nisar Ahmed alias Chaloo who was their neighbour ran from there and Shah Zaib was crying and said that Nisar Ahmed commit ted unnatural offence with him.
3. After completion of usual investigation, challan was submitted before the trial Court.
At the trial, the prosecution produced six (06) witnesses. The appellant was examined under section 342, Cr.P.C., however, he neither recorded his statement on oath under section
340(2), Cr.P.C., nor produced any witness in his defence.
4. On conclusion of trial and hearing arguments, the trial Court awarded conviction to
the appellant as mentioned herein above. Hence this appeal.
5. I have heard the learned counsel for the parties and also perused the entire record. In
order to substantiate the case, the prosecution has produced seven witnesses. The complainant of the case appeared as PW- 4 who fully reiterated the contents of FIR and
narrated the entire story in line with Fard -e-Bayan (Ex.P/1- A). The evidence of the said
witness was subjected to lengthy cross -examination, but nothing beneficial has come out on
record in favour of the appellant. PW -3 is the victim with whom the appellant/a ccused
committed unnatural offence. He narrated the whole story with regard to the occurrence and
he stated in a categoric manner that he is student of Class -I and studying in Islamic Public
School, Dera Murad Jamali. On 04.05.2018 he was standing near his house, meanwhile his
neighbour (accused/appellant) present in the Court came there and told him to go to Golla
Chowk at there he would give him birds. On the said practice he was taken to abandon house,
where the accused/appellant open his Shalwar and com mitted unnatural offence with him,
meanwhile his uncle came and the accused/appellant ran towards his house. The statement of
the victim is line with his earlier statement. The said witness was cross -examined at
sufficient length but nothing fruitful has c ome on record in favour of the defence. Both the
complainant PW- 4 as well as victim PW -3 remained consistence and firm in their deposition.
Both the witnesses accurately uttered the date, time and manner in which the appellant committed sodomy with him. The ocular testimony produced by the prosecution is direct in nature and the same remained unshaken, being consistent, confidence inspiring on all material counts. The witnesses fully supported the case of prosecution.
6. The case of the prosecution has furt her been strengthened by the medical evidence
produced by Dr. Naseer Muhammad, PW -1 who had examined the victim (PW -3) and issued
his medical certificate (Ex.P/l- A). Perusal of which reflects that PW- 1 after complete
examination of victim has opined that t he victim has sexually been assaulted. The medical
evidence has remained unshaken and unchallenged.
7. The prosecution also produced medical certificate of accused/appellant by PW- 2 Dr.
Nasrullah who had examined the accused/appellant and issued the medica l certificate
(Ex.P/2 -A) according to which the accused/appellant is potent and able for (sexual
intercourse). I have taken into consideration the medical evidence with ocular testimony and observed that both the ocular and medical evidence are in line wit h each other. In ocular
testimony witnesses have alleged that unnatural offence was committed with the victim PW -
3 by the accused/appellant and the medical evidence is established the whole story that unnatural offence was committed with the victim PW -3. E ven otherwise, soon after the
commission of crime the victim was taken into hospital and immediately he was examined by the doctor PW -1.
8. As far as non -production of an independent witness in the trial Court is concerned,
suffice to state here that the s tatements of prosecution witnesses are confidence inspiring and
ring true. As regards the arguments of the counsel for the appellant that related witnesses are not reliable. It is not worth consideration, because it may be observed that a related witness i s
as much as competent witness, as any other provided he is not inimical towards accused and has a motive to implicate the accused in a false case. It may be observed that in case of sodomy or zina the solitary statement of victim is sufficient to convict the accused if it is confidence inspiring. Reliance in this regard is placed on the case of Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042. The relevant portion reads as under: -
"...It has also been rightly observed by the learned Federal Shariat Court that conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so available in the case. Undisputedly victim of the offence namely Khadim Hussain at
the time of commission of offence was aged about 10 years and a school going boy,
who did not carry any ill -will, grudge or malice against the appellants to falsely
implicate them in the case. It has also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated that after attending the class he was on his way for the home through pavement where
wheat cro p was standing. He was ambushed by accused persons out of whom accused
Abbas caught hold of his arms while accused Fayyaz committed sodomy upon him
and thereafter accused Fayyaz caught hold of him and sodomy was committed upon him by accused Abbas. He also stated that accused was armed with a pistol who
threatened him of serious consequences. The testimony of the victim could not be impeached or discredited though subjected to test of cross -examination by the learned
defence counsel. Dr. Atta Muhammad Zafar , the Medical Officer appeared as P. W.4
who stated that on 24- 4-1998 he medically examined Khadim Hussain aged about 10
years was brought to him by Constable Munir Ahmed as a case of sexual assault. The victim was allegedly subjected to unnatural lust on 23-4-1998 and the matter was
promptly reported to the police, which was entered as Roznamcha Rappet No.3 on 23-4-1998 at about 2- 30 p.m. and subsequently on 25- 4-1998 at 9- 30 p.m. FIR was
registered against the nominated accused persons most probably in vi ew of the MLR
of the victim produced by the complainant. The findings noted in the MLR after the examination by the Medical Officer mentioned above clearly indicate that the injuries were caused by insertion of some blunt object within a duration of 20 to 40 hours. The Medical Officer was subjected to cross -examination by the learned defence
counsel and it was not even suggested to him that the noted injuries could be result of any insensate object, therefore, in absence of any other indication or material available on record it could not be said that the same were not caused by penetration
in respect whereof the victim expressly stated that he was subjected to sexual intercourse one after the other by the accused persons. Also, no suggestion was given to th e Medical Officer in cross -examination that no injury of the like nature as noted
in the MLR could be noticed on examination if conducted after 20 to 40 hours approximately on the person of the victim if so caused or inflicted. Hence, it could not be said that any symptom or injury on the person of a victim of unnatural offence could not have been noticed during the medical examination after 20 hours subsequent to the commission of the act. The Medical Officer admittedly was an independent person having no reason to issue a false certificate favouring the victim,
therefore, this piece of evidence in view of the contentions raised on behalf of the appellants could not have been discarded and rightly so believed by the learned Federal Shariat Court."
9. Simila r view has also been taken in the case Mushtaq Ahmed and another v. The
State, reported in 2007 SCMR 473, wherein it has been held as under: -
"...It is consistent view of this Court that in rape cases mere statement of the victim is sufficient to connect the petitioners with the commission of offence in case the statement of the victim inspires confidence. In the present case both the Courts below have given concurrent conclusions that statements of both the victims (P.W.9 and P.W.10) inspire confidence an d connected the petitioners with the commission of
offence. They had faced lengthy cross -examination by the defence but defence had
failed to shake their veracity. The statement of P.W.9 was duly corroborated by the
medical evidence of Dr. Tahira Afzal Dur rani who had categorically stated that her
'hymen was absent and she was pregnant. Her statement was also corroborated by the statement of Dr. Malik Saeed Akhtar Radiologist P.W. who had examined P.W.9 and also performed her ultra -sound according to which she was pregnant of about 18
weeks. Both the Courts below were justified to believe the statements of the aforesaid
witnesses after reappraisal of evidence. The trial Court was justified to disbelieve the
defence version and upheld by the learned Federal S hariat Court. It is not believed or
appealed to reason to observe that a sane person would ever like to put at stake his or her family honour as well as career of young unmarried daughter for such petty disputes as alleged by the defence. Both the Courts below after proper appreciation of evidence have concurrently convicted the petitioners with cogent reasons keeping in view all the principles laid down by this Court in the safe administration of justice. This Court, as a rule should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of the first instance which had advantage of hearing the parties, witnesses and watching their demeanour."
10. Admittedly, the PW -3 Shah Zaib is a minor, but at the time of his examination -in-
chief the Court enquired several questions from him and found him mentally mature and fit to answer the questions correctly and even during cross -examination he replied the questions
correctly, which establishes the soundness of his mind and his statement cannot be thrown aside merely on the ground of his being minor age of eight years rather alone his statement is enough to establish the charge against the appellant. Even otherwise, there is nothing on record showing that the w itness was tutored by his elder. I am conscious of the fact that the
rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some cogent evidence on the record. However, in the case in hand, the
statement of the child witness has fully been corroborated by the circumstantial witnesses and medical evidence. Reliance in this regard is placed on the case of Muhammad Shah v. State, 1991 MLD 1944, wherein it has been held as under: -
10. We have gone t hrough the evidence of Mst. Irshad (P.W.5) with care. Before
recording her statement the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational a nswers to questions put to her. Besides, she has been subjected to
fairly lengthy cross -examination which she had withstood to an astonishing degree. A
perusal of her statement shows that she made the statement in a frank and straight -
forward manner. Curio usly there was no suggestion to her in her cross -examination
that she did not know the appellant. Then there are no circumstances to indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim wi th his trousers loosened. She was intelligent enough to
understand as to what had been done to her brother and neither she nor her father had any motive to falsely implicate him. We see no reason whatsoever why the statement of such a child witness should not be believed though a suggestion was made to Najeem Gul (P. W. 4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr.P.C. did not take up this plea. We have not been able to discover any valid reason to reject the testimony
of Mst. Irshad (PW.5)."
11. The trial Court has rightly appreciated the evidence in its true perspective. The
learned counsel for the appellant has failed to point out any misreading and non- reading of
evidence and major contradiction in the statements of PWs or any material illegality or
irregularity in the impugned judgments, warranting interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
These are the reasons of my short order dated 26.09.2019.
JK/133/Bal. Appeal dismissed.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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