2025 P Cr. L J 73
[Balochistan]
Before Muhammad Hashim Khan Kakar, CJ and Shaukat Ali Rakhshani, J
SAMI ULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 490 of 2023, decided on 17th May, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 377 ---Anti -Rape (Investigation and Trial) Act (XXX of 2021), S. 17--- Sodomy,
sexual abuse of minor ---Appreciation of evidence ---Ocular account supported by medical
evidence--- Accused was charged for committing sodomy with minor son of complainant ---
Complainant reiterated what he had reported in his application ---Complainant was not the
eye-witness of the occurrence ---Victim gave complainant the first hand information
regarding commission of carnal intercourse with him by the accused--- Uncle of the victim,
who was residing with complainant and victim in the same house, testified that on
30.10.2021 at 9:00 o'clock victim told them that accused had sodomized him, whereafter he and his brother/complainant lodged the FIR ---Complainant and his brother were cross -
examined at length, but the defence failed to extract anything beneficial ---Victim aged four
years was the star witness ---Trial Court before recording his testimony conducted a
preliminary inquiry by putting questions to the victim in order to ascertain whether he was able to testify before the Court and capable enough to narrate the occurrence, after which the Trial Court concluded that the victim was able to testify, henceforth, his statement was recorded ---Victim testified that on fateful night at 4:45 pm he went to the shop of accused
to buy crackers, where the accused took him inside the shop and forcibly undressed him and sodomized him ---Victim also stated that blood was oozing from his stool, whereof he
apprised his father, whereafter they lodged the report ---Victim identified the accused as the
culprit of sodomy in the Court ---Said witness was not cross -examined at length except
suggesting questions of denial, thus his testimony went unshaken--- Statement recorded by
the victim under S.164, Cr.P.C, by Judicial Magistrate was of no significance, when the victim appeared and testified before the Court ---Buccal and anal swab with clothes
provided by Medical Officer were sent to Forensic Science Agency for forensic, DNA and serology analysis, whereof report was issued, which affirmed the presence of spertozoman on different items strengthening the case of prosecution--- Circumstances established that
the prosecution had successfully proved the indictment without any shadow of doubt against the accused ---However, due to peculiar circumstances, while maintaining the
conviction, the sentence of the accused was reduced from life imprisonment to five (05) years ---Appeal against conviction was dismissed with said modification in sentence.
(b) Penal Code (XLV of 1860)---
----S. 377 --- Anti-Rape (Investigation and Trial) Act (XXX of 2021), S. 17--- Criminal
Procedure Code (V of 1898), S. 340(2) ---Sodomy, sexual abuse of minor ---Appreciation of
evidence---Defence plea not plausible ---Accused was charged for committing sodomy with
minor son of complainant ---Record showed that the accused besides his own statement also
produced Medical Officer, Dr. "KA", "N" and WK ---Medical Officer testified that the
accused was working as assistant with him in his medical store and that on 31.10.2021 at 5:00 pm he was present with him in his medical store ---Statement of said Medical Officer
was of no help to the accused as the occurrence took place on 30.10.2021---"N" testified that accused was his cousin and that father of the accused and complainant had a dispute over a shop--- Said witness admitted that the matter was resolved between parties by the arbitrators,
but stated that he could not produce the written decision of the arbitrators ---"WK" was also
relative of the accused, who also reiter ated regarding dispute between father of accused and
complainant over a shop prior to the instant case, however, stated that it was resolved---In such state of affairs, if the prosecution version was kept in juxtaposition with the stance of
defence, no other view could be drawn except that the case of the prosecution was more
plausible, confidence inspiring and truthful than the defence version--- Circumstances
established that the prosecution had successfully proved the indictment without any shadow of doubt against the accused---However, due to peculiar circumstances, while maintaining the conviction, the sentence of the accused was reduced from life imprisonment to five (05)
years ---Appeal against conviction was dismissed with said modification in sentence.
(c) Penal Code (XLV of 1860)---
----S. 377---Anti -Rape (Investigation and Trial) Act (XXX of 2021), S.17---Sodomy, sexual
abuse of minor ---Appreciation of evidence ---Sentence, reduction in ---Mitigating
circumstances ---Accused was charged for committing sodomy with minor son of
complainant ---Record showed that accused was 13 years old and a first time offender, having
no previous criminal record, therefore, keeping in view the peculiar circumstances, while
maintaining the conviction, the sentence of the accused was reduced from life imprisonment to five (05) years ---Appeal against conviction was dismissed with said modification in
sentence.
Ghulam Wali Achakzai for Appellant.
Mushtaq Ahmed Qazi, Additional Prosecutor General ("APG") assisted by Wajahat
Khan Ghaznavi, State Counsel for the State.
Date of hearing: 25th April, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Appellant has brought before us the captioned
appeal, seeking annulment of the judgment dated 31.10.2023 ("impugned judgment") penned by learned Special Judge, Anti Rape- Sessions Judge, Sariab Division, Quetta, ("trial court")
in Anti Rape Case No.04 of 2021, whereby he was convicted under Section 377 of the Pakistan Penal Code of 1860 ("P.P.C.") and sentenced to suffer life imprisonment with pay fine of Rs.4,00,000/ - (Rupees Four Lac Only) or in default thereof to suffer further six (06)
months Simple Imprisonment ("SI") each with the premium of section 382 -B of Cr.P.C.
However, 50% of fine amount on its recovery was ordered to be paid to victim Muhammad Sohail (PW -2) as envisaged under section 17 of Anti Rape (Investigation and Trial) Act,
2020.
2. Laconically, on the strength of an application (Ex.P/1 -A), FIR No.81 of 2021 dated
30.10.2021 was lodged by complainant Muhammad Siddique (PW -1) within the remits of
Police Station Shaheed Manzoor Tareen Bakra Mandi, Quetta, averring therein that on 30.10.2021 he was present at home, when his son namely Muhammad Sohail (PW -2) age
about 04 years came back home at 8:45 pm, while weeping, who on query revealed that shopkeeper Samiullah forcibly took him inside his shop and forcibly sodomized him.
3. After registration of the case, investigation was entrusted to ASI/IO Muhammad Yasir
(PW -7), who during investigation took victim Muhammad Sohail to Civil Hospital Quetta
and arrested appellant Samiullah, who were medically examined by Dr. Aysha Faiz (PW -3)
Police Surgeon Civil Hospital, Quetta; and got recorded the statement of victim (PW -2)
under section 164 Cr.P.C. as witness. On 15.11.2021, Muhammad Yasir IO (PW -7) received
medical report of the appellant from Dr. Aysha Faiz Police Surgeon through murasilas (Ex.P/6 -A), and dispatched the same to Punjab Forensic Science Agency (PFSC) for forensic
DNA and Serology Analysis Report. On 13.11.2021, appellant was remanded to judicial custody and handed over the case file to Hidayatullah Tareen SI/SHO, who prepared incomplete Challan (Ex.P/7 -C), however, later on, investigation of the case was entrusted to
Ghulam Sarwar IP/IO (PW -8) who received DNA report (Ex.P/8- A) from PFSA and handed
over the same to Ghulam Mustafa IP/SHO, who forwarded Challan No.86- A/2022 (Ex.P/8-
F).
On conclusion of the investigation, the appellant was sent up to face the culpable
deeds of his crime before the trial court. On the stated allegations, a formal charge was read over to the appellant, which he pleaded not guilty, thus in order to drive home the indictment,
the prosecution produced as many as eight (08) witnesses in the instant case. On close of the
prosecution evidence, the appellant was examined under section 342 of Cr.P.C., wherein he flatly repudiated and denied the prosecution story and evidence so brought against him during trial by also professing innocence by taking plea of false implication. However, the appellant recorded his statement on oath as envisaged by provision of section 340 (2) of
Cr.P.C. and produced DW -1 Dr. Kabeer Ahmed, DW- 2 Noorullah and DW -3 Haji Wali Jan
in support of his defence plea.
4. Learned counsel for the appellant inter alia contended that the prosecution has failed
to prove the charge against the appellant, but the learned Trial Judge contrary to the evidence
available on record has recorded the verdict of guilt, which is unsustainable, thus, liable to be set aside. He added that the entire case rests upon the statements of victim and medical evidence, which are in conflict, as such, no reliance can be placed upon such evidence, hence, the case being doubtful and the reasoning drawn by the Trial Judge being contrary to record are unsustainable, thus merits to be set -aside and in consequence thereof the appellant
deserves acquittal.
Conversely, learned APG strenuously repudiated the arguments so advanced by
learned counsel for the appellant and urged that the testimony of the victim (PW -2) has been
corroborated by medical and FSL reports. He maintained that the appellant has been convicted on the basis of proper appraisal of the evidence, which does not call for interference, henceforth, requested for dismissal of the appeal.
4(sic). Heard. Record vetted wall to wall with the able assistance of counsel for both the
adversaries. The case of prosecution hunges upon the testimony of victim Muhammad Sohail
(PW -2), medical evidence of Dr. Aysha Faiz (PW- 3), who issued Medico Legal Certificates
(Ex.P/3 -A) of victim and (Ex.P/3- B) of appellant coupled with circumstantial evidence of
father of the victim namely Muhammad Siddique (PW -1), uncle of victim Muhammad
Younas (PW -5), statement of Aminullah Achakzai, Judicial Magistrate -I Sariab Division
(PW -4) who recorded statement of victim PW -2 under section 164 of Cr.P.C. (Ex.P/4 -A) and
depositions of recovery witness Syed Zeshan Ahmed (PW -6) and investigating officers
Muhammad Yasir (PW -7) and Ghulam Sarwar (PW- 8) and above all the FSL report (Ex.P/8-
B) dated 29.04.2022.
Complainant (PW -1) reiterated, what he had reported in his application (Ex.P/1- A).
He is not the eye- witness of the occurrence. Victim (PW -2) gave him the first hand
information regarding commission of carnal intercourse with him by the appellant. Muhammad Younas (PW -5) is uncle of the victim, who resides with complainant and victim
in the same house. He testified that on 30.10.2021 at 9:00 O'clock victim Muhammad Sohail (PW -2) told them that appellant had sodomized him, whereafter he and his brother
Muhammad Siddique (PW -1) got lodge the FIR. Complainant (PW -1) and his brother
Muhammad Younas (PW -5) were cross -examined at length, but the defence failed to extract
anything beneficial. Muhammad Younus (PW -5) during cross -examination denied that there
was enmity between the appellant and complainant party.
5. Victim Muhammad Sohail (PW -2) age four years is the star witness. The trial court
before recording his testimony conducted a preliminary inquiry by putting questions to the victim (PW -2) in order to ascertain whether he was able to testify before the court and
capable enough to narrate the occurrence, whereof learned Trial Judge concluded that the victim (PW -2) was able to testify, henceforth, his statement was recorded. Muhammad
Sohail (PW -2) testified that on fateful night at 4:45 pm he went to the shop of appellant to
buy crackers, where the appellant took him inside the shop and forcibly undressed him and sodomized him. He (PW -2) also stated that blood was oozing from his stool, whereof he
apprised his father (PW -1), whereafter they lodged the report. He identified the appellant as
the culprit of sodomy in the court. He was not cross -examined at length except suggesting
questions of denial, thus his testimony went unshaken. The statement recorded by the victim (PW -2) under section 164 Cr.P.C. by Judicial Magistrate -I Sariab Division is of no
significance, when the victim (PW -2) appeared and testified before the court.
6. The testimony of the victim has been confirmed by the medico legal certified (Ex.P/3-
A) issued by Dr. Ayesha Faiz (PW -3). She (PW -3) medically examined the victim (PW -2)
and appellant. She (PW -3) in her medico legal certificate (Ex.P/3 -A) made certain
observations, which follows as under: -
"Observations:
Brought by custody.
Physically and mentally healthy.
Well oriented to time and space.
Injuries:
1 ½ cm tear above the anal sphincter with a small abscess with slight bleeding.
Blood Group 'A' positive.
Samples taken are;
1. Blood.
2. Buccal swab stick.
3. Anal Swab stick.
4. Shalwar.
Opinion:
Sexual assault has been performed upon him. Samples are taken and sent for chemical
analyses".
PW-3 Dr. Ayesha Faiz also issued medico legal certificate (Ex.P/3 -A) of appellant
and made the following observations;
"Observations:
Brought by custody.
Physically and mentally healthy.
Well oriented to time and space.
Secondary Sexual Characteristics were well developed.
Blood Group 'O' positive.
Samples taken are;
1. Blood.
2. Buccal Swab stick.
3. Shalwar.
Opinion:
He is able to perform the act of sexual inter course and medically he is potent".
7. The buccal and anal swab with clothes provided by Dr. Ayesha Faiz (PW -3) were sent
to PFSA for forensic, DNA and serology Analysis, whereof report (Ex/P/8 -A) was issued,
which affirms the presence of spertozoman on item No.6.1- 6.2, strengthening the case of
prosecution.
8. Adversely to the defence plea, it may be observed that the appellant beside his own
statement also produced Dr. Kabeer Ahmed (DW- 1), Noorullah (DW -2) and Haji Wali Khan
(DW -3). Dr. Kabeer Ahmed (DW- 1) testified that the appellant was working as Assistant
with him in his medical store and that on 31.10.2021 at 5:00 pm he was present with him in
his medical store at Mian Ghundi. The statement of Dr. Kabeer Ahmed (DW -1) is no help to
the appellant for the occurrence took place on 30.10.2021. Noorullah (DW -2) testified that
appellant is his cousin and that father of the appellant and complainant (PW -1) had a dispute
over a shop. He admitted that the matter was resolved between them by the arbitrators, but stated that he cannot produce the written decision of the arbitrators. Haji Wali Khan (DW -3)
is also relative of the appellant, who also reiterated regarding dispute between father of appellant and complainant (PW- 1) over a shop prior to the instant case, however, stated that
it was resolved. In view of the above, we are of the considered view that if the prosecution version is kept in juxtaposition with the stance of defence, no other view can be drawn except that the case of the prosecution is more plausible, confidence inspiring and truthful then the defence version.
9. For what has been discussed herein above, we have arrived at an irresistible
conclusion that the prosecution has successfully proved the indictment without any shadow of doubt against the appellant, which has rightly been endorsed by the trial court vide
impugned judgment 31.10.2023 which has been examined by us critically, but found to be
based upon proper appraisal of the evidence, suffering from no perversity, thus the appeal is
dismissed.
However, keeping in view the peculiar circumstances, considering, 13 years age and
the appellant being first offender, having no previous criminal record, the impugned
judgment dated 31.10.2023 is modified and consequently, while maintaining the conviction,
the sentence of the appellant is reduced from life imprisonment to five (05) years, whereas the sentence of fine of Rs.4,00,000/ - (Rupees Four Lac Only) is reduced to Rs.2,00,000/ -
(Rupees Two Lac Only) and in case of default of fine, the convict shall further undergo three (03) months SI, having the premium of section 382- B P.P.C.
JK/45/Bal. Sentence reduced.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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