2022 P Cr. L J 52
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
RIFAT BIBI ---Appellant
Versus
ABID SHAH and another ---Respondents
Criminal Acquittal Appeal No. 31 of 2019, decided on 16th September, 2020.
(a) Penal Code (XLV of 1860) ---
----S. 377--- Unnatural offence ---Appreciation of evidence--- Appeal against acquittal ---
Limitation ---Scope ---Accused was charged for committing carnal intercourse with the
nephew of the complainant ---Record showed that the appeal had been filed under S. 417 -A,
Cr.P.C., and the limitation for filing such appeal was thirty (30) days from the date of
passing of order/judgment ---In the present case, the impugned judgment was passed on
27.12.2018 and the appeal, was filed before High Court on 18.02.2019 after fifty -three (53)
days which was barred by time---Neither the appellant filed application under S. 5 of the Limitation Act, 1908 for condonation of delay nor explained each and every day of delay in filing of the appeal ---Appeal was dismissed being ba rred by law of limitation.
(b) Limitation Act (IX of 1908)---
----S. 5---Condonation of delay---Scope ---Delay of each day had to be satisfactorily
explained, as after expiry of limitation period a vested right was created in favour of the other party which could not be easily brushed aside as the law always helped the vigilant and
not the indolent.
Lt. col. Nasir Malik v. Additional District Judge Lahore, 2016 SCMR 1821 rel.
(c) Criminal trial ---
----Evidence --- Solitary statement of victim--- Scope --- Conviction could be recorded on the
solitary statement of the victim provided that the same was corroborated by the other circumstantial evidence, particularly, with the opinion rendered by the medical witness.
(d) Penal Code (XLV of 1860)---
----S. 377--- Unnatural offence ---Appreciation of evidence--- Appeal against acquittal ---
Accused was charged for committing carnal intercourse with the nephew of the complainant -
--Record showed that neither the complainant nor anyone else was eye -witness of the alleged
occurrence---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 ---Appellant had failed to point out any defect in t he impugned
judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.
(e) Penal Code (XLV of 1860)---
----S. 377--- Unnatural offence ---Appreciation of evidence--- Appeal against acquittal ---
Medical evidence ---Scope ---Medical jurisprudence--- Procedure to check sodomy ---
Principles ---Accused was charged for committing carnal intercourse with the nephew of the
complainant ---Medical witness rendered his observation that there was no penetration,
browse on anal a nd tenderness on anal canal ---During cross -examination, Medical witness
stated that due to warm infections, the child had scratches on his anal canal and during cross -
examination further stated that in expert opinion no sodomy was committed and it was only
an attempt ---Witness stated during cross -examination that there were no injuries on the knees
of the victim and no injuries on his person--- Section 377, P.P.C., provided that the offences
would be completed when the carnal intercourse was taken place ---Law provided that for
constituting an offence under said section and to establish the carnal intercourse, the penetration was a condition precedent, therefore, the explanation provided in S. 377, P.P.C., stated that "penetration was sufficient to constitute the carnal intercourse ---Victim was silent
about penetration, while the opinion rendered by the Medical witness was not conclusive ---
Medical jurisprudence provided a complete procedure for examining the victim of sodomy---Medical opinion rendered by a Medi cal witness was not in line with the procedure
contemplated in the medical jurisprudence, therefore, it was instructed to produce the
relevant procedure for medical examination of the victim of sodomy as provided in the Medical Jurisprudence ---In the prese nt case, Medico Legal Report stated about the
tenderness of anal region which under the medical jurisprudence could be caused due to constipation or in case of irregular bowel habits ---Doctor had also failed to use the
Proctoscopy instrument in order to ob tain the anal swab and did not notice any abrasion or
injury on the anal region of the alleged victim ---Statement of victim was silent about
penetration, thus without obtaining the anal swab of the victim and in the absence of positive report with regard t o semen -stained clothes of the victim and the accused and without getting
blood group of accused in order to match the semen stains found on the victims clothes, on mere tenderness of the anal region no conclusive opinion could be rendered as to whether sodomy had been committed or not ---Sample was taken from the shalwar of the accused but
no report of Forensic Expert was produced before the court, which created a reasonable doubt in the prosecution case ---Accused was also of 11/12 years, and the victim was of 8/9
years and there were no such injuries on the person of the victim ---Said aspect of the case
also caused reasonable doubt in the prosecution---Appellant had failed to point out any defect in the impugned Judgment, therefore, the appeal against acqui ttal being devoid of
merits was accordingly dismissed in limine.
(f) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Scope ---Acquittal carried with it
double presumption of innocence ---Acquittal order could be reversed only when found
blatantly perverse, resting upon fringes of impossibility and resulting into miscarri age of
justice ---Same could not be set aside merely on the possibility of a contra view.
Ahsan Rafique Rana for Appellant.
Date of hearing: 10th September, 2020.
ORDER
ROZI KHAN BARRECH, J .---This Criminal Acquittal Appeal was filed to question
the vali dity of the judgment dated 27.12.2018 (hereinafter "the impugned Judgment") passed
by the learned Judicial Magistrate -VII, Quetta, (hereinafter "the trial Court") whereby the
private respondent was acquitted from the charge in FIR No.75 of 2016 registered at Police
Station Saddar, Quetta, under section 377, P.P.C..
2. Relevant facts for the disposal of the instant appeal are that on 10.09.2016 the
complainant namely Abdul Rahim son of Haji Sher Zaman lodged the aforesaid FIR with the allegation that on the said date he was present in his office and he received a phone call from home to come home. When he reached at home at about 2:50 p.m., his nephew went outside to play cricket, when he was coming back home, his neighbour Abid Shah (accused) caught him from his hand and took him towards the water tank. When the nephew started weeping,
he put his hand on his mouth and had carnal intercourse. Hence a crime report.
3. After completion of the usual investigation, challan of the case was submitted before
the tria l Court. After observing codal formalities, the trial Court framed the charge against
the accused/respondent to which he did not plead guilty and claimed trial. After full dressed trial, the accused/respondent was acquitted from the charge by the trial Court vide judgment dated 27.12.2018, whereafter, the appellant has filed the instant appeal.
4. We have considered the worthy arguments advanced by the learned counsel for the
appellant and carefully scanned the material available on the record. This appeal has been filed under section 417- A, Cr.P.C., and the limitation for filing such appeal is thirty (3) days
from the date of passing of order/judgment. In the instant case, the impugned judgment was passed on 27.12.2018, and the appeal was filed before this Court on 18.02.2019 after fifty-
three (53) days which is barred by time.
Neither the appellant filed an application under section 5 of the Limitation Act, 1908
("the Act") for condonation of delay nor explained each and every day of delay in filing of the appeal.
5. It is a well- settled principle of law that delay of each day has to be satisfactorily
explained, as after expiry of limitation period a vested right is created in favour of the other party which could not be easily brushed aside as the law always help the vigilant and not the indolent. It has been maintained by the Hon'ble Supreme Court of Pakistan in case of Lt. Col. Nasir Malik v. Additional District Judge Lahore, reported as 2016 SCMR 1821, that each day
of delay had to be explained in an application seeking condonation of delay and that in the
absence of such an explanation the said application was liable to be dismissed.
6. As far as the merit of the case is concerned, the appellant was booked in the instant
case on 10.09.2016 at 3:10 p.m., on the report submitted by PW -1/complainant Abdul Rahim
alleging therein that on the said day his nephew Abdul Haseeb aged about 8/9 years was playing outside of his house, when taken to a nearby water tank by the respondent No.1 (accused) who committed so domy upon him.
7. On reappraisal of the evidence, it is observed that neither the complainant nor anyone
else is an eye- witness of the alleged occurrence. There is no denial to the proposition that the
conviction an 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 Abdul Haseeb in his statement stated that on 10.09.2016 he was playing cricket at Ayub Stadium, the accused Abid Shah was present a t there and when he was going to his house after playing cricket the
accused Abid Shah caught hold in his hand and took him behind the water tank at there forcibly put out his belt and committed the unnatural offence with him, while PW -5 Dr. Noor
Baloch, t he medical witness rendered his observation that " he was no penetration, browse on
anal and tenderness on anal canal. During cross -examination, he stated that due to warm
infections, the child scratches on his anal canal. He further stated during cross -examination
that it is correct that in expert opinion no sodomy was committed and it was the only attempt. He also stated during cross -examination that there were no injuries on the knees of the
victim. He further stated that there was no injuries on the per son of the victim.
8. On the other hand, the medical witness rendered a positive opinion in respect of
sodomy on the basis of tenderness observed by him on the anal region of the victim. The unnatural offence and its punishment is provided under section 377, 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 years, 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
carnal 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, theref ore, the 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 rende red by the medical witness is not conclusive. The medical jurisprudence provides a
complete procedure for examining the victim of sodomy. The medical opinion rendered by a
medical witness is not in line with the procedure contemplated in the medical jurisprudence, therefore, it is instructed 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 a caption of sexual offences, which
elaborates the examination of the passive agent in the following manner: -
As in rape, consent must be obtained before commencing a medical examination. The
following signs may be discovered of the body (passive agent) is not accust omed to
sodomy: -
1. Abrasions on the skin near the, anus with pain in walking and on defecation, as well
as during examination. These injuries are extensive and well -defined in cases where
there is a 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 strong 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 inwards 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 facel 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 the medical witness, he states that it is essenti al for the
medical examination that a medical witness/medico -legal officer must take a general medical
history of the victim and in case of a very young or minor child, the doctor should take a medical history from parents or guardian. Thus, this may be ta ken 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 verge, 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 often seen, and these may take the form of an 'all over' swelling 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 wit hout
proctoscopy of the anal canal, thus in case of a young child who has been subjected to sodomy the presence of localized injury to the skin of the anal margin is of most tremendous greatest significance, therefore, the presence of fresh, moist, pink co lored anal fissure may
support the allegation of penile penetration. It is worthwhile to mention here that in case of a child, a victim of sodomy, chances of severe injury are always possible and abrasion on the skin near the anus with pain in walking and on defecation as well as during examination shall
necessarily be observed. (Chapter -5, "Medico -legal examination of the living" Taylor's
Principles and Practice of Medical Jurisprudence, Thirteenth Edition -1984 Edited by A.
Keith Mant)."
In the instant ca se, 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 irregular 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 abrasion or injury on the anal region
of the alleged victim. While the statement of victim/PW -3 is silent about penetration, thus
without obtaining the anal swab of the victim and in the absence of positive report with
regard to semen -stained clothes of the victim and the accused and without getting 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 render ed whether sodomy has
been committed or not.
13. It is also stated that the sample was taken from the Shalwar of the accused/respondent
but no report of forensic expert produced before the court, which creates a reasonable doubt in the prosecution case.
The accused/respondent is also old age of 11/12 years, and the victim is old age of 8/9
years, and there are no such injuries on the person of the victim. This aspect of the case was also caused reasonable doubt in the prosecution.
10.(sic.) It is by now we ll settled that acquittal carries with it double presumption of
innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view.
11.(sic.) In our humble view, the trial court has considered all the evidence present on
record properly and arrived to the conclusion which is based on proper appreciation of the
facts and law, thus does not need interference by this cou rt.
The appellant has failed to point out any defect in the impugned Judgment, therefore
the appeal being devoid of merits is accordingly dismissed in limine.
JK/214/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,
let us know.