2015 Y L R 1156
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
MUHAMMAD RAFIQ and another ---Petitioners
versus
The STATE ---Respondent
Criminal Revision Petitions Nos. 76 and 179 of 2012, decided on 30th April, 2014.
Penal Code (XLV of 1860) ---
----Ss. 377 & 34 ---Sodomy, common intention ---Appreciation of evidence ---Complainant and
victim, had made dishonest improvements in respect of the alleged offence of sodomy ---
Statement of father of the victim, was totally silent about co mmission of unnatural offence; he
only deposed about the nude movie of the victim allegedly recorded by accused persons ---Said
witness was also silent about first hand statement of victim when he disclosed the alleged
unnatural offence committed with him b y accused persons ---Charge framed against accused
persons, was misleading ---Trial Court relied upon a joint disclosure and joint recovery memo
and said tainted pieces of evidence, were considered in corroboration to other tainted evidences --
-Trial Court ha d failed to consider that neither the joint disclosure, nor joint recovery memo were
admissible in evidence and had failed to undertake a deeper appreciation of evidence ---
Prosecution case was built on quite different lines ---Irrespective of the allegation of sodomy, the
recovery of the alleged nude movie, and the photographs also shrouded in doubts and clouds ---
Said pieces of evidence, were not worthy of credence and reliance placed by Trial Court, was not
tangible ---Judgment, could not be surrendered to t he opinion of the Doctor alone, and such
opinion was not binding for the court, when the same was rendered against the principles of
medical jurisprudence, especially, when the known and settled procedure of medical examination
of the victim of unnatural o ffence was not adopted ---Comparison and grouping of the semen,
was highly essential to connect accused with the commission of offence of sodomy which was
not carried out ---Opinion of medical witness, in the case, not of any worth, in circumstances ---
Offenc e under S.377, P.P.C., being not compoundable, application up to the extent of
compromise, was dismissed ---Prosecution having failed to substantiate the charge against
accused persons, criminal revision petition filed by the complainant for enhancement of
sentence, was dismissed as withdrawn, and criminal revision filed by accused persons against
their conviction and sentence, was accepted and they were acquitted of the charge against them,
in circumstances.
Arthur Victor for Petitioners (in Criminal Re vision Petition No.76 of 2012).
Manzoor Ahmed Rehmani for the Complainant (in Criminal Revision Petition No.76 of
2012).
Malik Sultan Mehmood for the State (in Criminal Revision Petition No.76 of 2012).
Manzoor Ahmed Rehmani for Petitioners (in C riminal Revision Petition No.179 of
2012).
Arthur Victor for Respondents Nos. 1 and 2 (in Criminal Revision Petition No.179 of
2012).
Malik Sultan Mehmood for the State (in Criminal Revision Petition No.179 of 2012).
Date of hearing: 14th March, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The Criminal Revision
Petition No.76 of 2012 is directed against the judgment dated 26th March 2012 and the Judgment
dated 21 -4-2012 ("impugned judgments") respectively passed by the learned Judicial Magistrate,
Barkhan ("trial Court") and by the Incharge Additional Sessions Judge, Barkhan at Rakhni
(appellate court), whereby the petitioners/ convicts were convicted under section 377/34, P.P.C.
and sentenced for three years Rigorous Imprisonment (RI) with fine of Rs. 30,000 (Rupees thirty
thousand only), in default whereof, they further directed to suffer Simple Imprisonment (SI) for
seven months. The benefi t under section 382 -B Criminal Procedure Code (Cr.P.C.) was also
extended in their favour. The conviction recorded was maintained by the appellate court.
2. The Criminal Revision Petition No.179 of 2012 is filed by the complainant viz, Sultan
Muhammad, a ssailing the impugned judgments up to the extent of quantum of sentences
recorded against the convicts/respondents Nos.1 and 2, with prayer for enhancement of sentence.
Both the petitions are arising out of the judgments respectively passed by the trial co urt and the
appellate court, therefore, I intend to dispose of these petitions through this common judgment.
3. The necessary facts out of which instant petitions arose are that the complainant Sultan
Muhammad submitted a written report (Ex -P/I-A) before the SHO Police Station, Barkhan on 9 -
11-2011 averring therein that he along with his brother Ahmed Khan and relative Amir Jan were
present at his home, when at 10:30 p.m. his son viz, Muhammad Arsalan came, and he was
weeping when told that one week ago M uhammad Rafiq and Naik Muhammad
(convict/petitioners) took him to a room in Government Model High School, Barkhan, whereby,
they forcibly committed a sodomy with him, and also recorded his movie on mobile phone. Both
of them again beaten him today because they were intending to take him for sodomy, but on his
resistance, they threatened him that they will publicize his movie in the general public and will
defame him. Thus, on aforesaid report of the complainant an FIR No. 21 of 2009 (Ex -P/7-C) was
registere d on 9 -11-2011 under sections 377, 511, 34 P.P.C. with Police Station, Barkhan.
4. The convicts petitioners were arrested on a same day and were taken to Basic Health Unit
(BHU) Rakhni for medical examination. The victim/P.W.2 viz Muhammad Arsalan was ta ken to
hospital on next date i.e. 10th November 2011 for medical examination. The medical certificate
(Exh.P/6 -A and Exh.P/6 -B) of the convicts/petitioners and medical certificate (Exh.P/6 -C) of the
victim were issued on 17 -11-2011. The perusal of challan (Exh.P/7 -D) shows that soon after the
arrest of the convicts/petitioners, the alleged pointation memo of the place of occurrence
(Exh.P/4 -A Fard -e-Nishandahi Maqa) was prepared. The semen stained trousers (Article P/1,
Shalwar) was produced by the complain ant, which was taken into possession vide recovery
memo (Exh.P/5 -A). During the interrogation, a joint disclosure dated 20 -11-2011 was stated to
have been made by the convicts/petitioners and a disclosure memo (Fard -e-Inkishaf Exh.P/5 -C)
was prepared by th e police followed by joint pointation and recovery memo (Fard -e-Nishandahi,
Maqboozgi, Exh.P/5 -B), six nude photographs (Article P/2 to Article P/7) and one memory card
(Article P/8) were secured and sealed parcel was prepared.
5. On completion of invest igations the convicts/petitioners were committed to judicial
custody on 21 -11-2011. The trial was commenced on 12 -12-2011 and the copies of challan and
the statements of witnesses were supplied to the convicts/petitioners. The charge was framed and
read ov er to the convicts/ petitioners for offences under sections 377, 511, 34, P.P.C. on 24 -12-
2011, to which they did not plead guilty and claimed trial. The prosecution in order to
substantiate the charge and to bring the guilt at home, produced and examined as many as seven
witnesses. The convicts were examined as envisaged under section 342, Cr.P.C. however; both
of them neither opted to enter on oath nor produced any defense witness. On conclusion, the
learned trial court has passed the impugned judgment an d the convicts/petitioners were convicted
and sentenced for above stated terms. The conviction recorded was assailed before the appellate
court and maintained vide the judgment dated 21 -4-2012. The judgments being impugned were
assailed herein.
6. Mr. Ar thur Victor, learned counsel for the convicts/petitioners at the very outset
contended that in the FIR an allegation of unnatural offence was foisted, which was alleged to
had committed one week ago, but the medical witness viz Dr. Mehr Din/P.W.6, opined t hat the
sodomy might have been committed because the victim is catamite, therefore, his positive
opinion in respect of alleged sodomy was of no avail to the prosecution. He added that the
complainant/P.W.1 and the victim/P.W.2 made dishonest improvements b y stating that on 9 -11-
2011 convicts/ petitioners again committed a sodomy but this allegation was not contained in the
FIR, whereas, both the said witnesses admitted in cross -examination that neither in application
Ex-P/1-A, nor in FIR Exh.P/7 -C and nor i n the statement under section 161, Cr.P.C., the said
allegation was stated. He further contended that witnesses have further admitted before the court
that neither in the alleged nude photograph nor in the alleged movie of the victim, anyone's face
was vis ible. He finally urged for acquittal of convicts/petitioners.
7. Mr. Manzoor Ahmed Rehmani, learned counsel for the complainant has seriously
opposed the contentions and stated that the act committed by the convicts/ petitioners does not
warrant any leni ency. He added that once the trial court reached to the conclusion that offence
was made out against the convicts/petitioners, then, no occasion was available to the learned trial
court to have passed a lesser punishment without discussing the mitigating c ircumstances. He
further contended that the unnatural offence entails an imprisonment, which may extend to ten
years, therefore, the manner and procedure adopted by the trial court is against the norms of
natural justice and the appellate court too, failed to consider this aspect of the case, therefore,
convicts/petitioners are liable to be convicted and sentenced with maximum term in respect of
quantum of imprisonment as provided in the statute.
8. Malik Sultan Mehmood, Advocate appearing for the State h as strongly opposed the
prayer of acquittal made in Criminal Revision Petition No.76 of 2012 and endorsed the
contention advanced by the learned counsel for the complainant in Criminal Revision Petition
No.179 of 2012 for enhancement of sentence to the con victs/petitioners.
9. I have heard the parties learned counsel and have gone through the record. It is an
admitted feature of the prosecution's case that the complainant P.W.1 and the victim P.W.2 had
made dishonest improvements in respect of the alleged offence of sodomy allegedly committed
on 9-11-2011 and both the said witnesses have admitted before the court that the application for
registration of FIR and statement recorded under section 161, Cr.P.C. did not contain the
allegation of sodomy allegedly committed on 9 -11-2011. The statement of Ahmed Khan/P.W.3
(brother of complainant) is totally silent about commission of unnatural offence. He only
deposed about the nude movie of the victim allegedly recorded by the convicts/petitioners. The
said witness is also silent about first hand statement of victim, when on 9 -11-2011 he came home
and was weeping, when he disclosed the alleged unnatural offence committed with him by the
convicts/petitioners. Therefore, the charge framed against the convicts/petition ers was
misleading, which stated about the commission of unnatural offence on 9 -11-2011 followed by
recording of nude movie and taking nude photographs of the victim. Another grave miscarriage
of justice took place when the learned trial court relied upon a joint disclosure and joint recovery
memo. These tainted pieces of evidence were considered in corroboration to other tainted
evidences. The learned trial court had miserably failed to consider that neither the joint
disclosure nor the joint recovery memo is admissible in evidence, while one tainted piece of
evidence does not provide corroboration to another tainted piece of evidence. The learned trial
court had miserably failed to undertake a deeper appreciation of evidence, when the
complainant/P.W.1 viz Sultan Muhammad in his cross -examination admitted that he did not see
the alleged movie prior to registration of an FIR, but after two days of registration of FIR, his
brother (P.W.3) brought the said movie, which he watched, when the case was already
registered. The prosecution case was built on quite different lines, when the alleged joint
disclosure Exh.P/5 -C was shown to have been made on 20 -11-2011 followed by joint recovery
memo
Exh.P/5 -B. It cannot be ascertained from the perusal of the prosecution evidence that when the
alleged photographs and memory card allegedly contained the nude movie of the victim was
recovered on 20 -11-2011, how the complainant/P.W.1 was able to have watched the sa me prior
to these recoveries. Therefore, irrespective of the allegation of sodomy the recovery of the
alleged nude movie and the photographs were also shrouded in doubts and clouds. These pieces
of evidence were not worthy of credence and reliance placed b y the learned courts below was no
tangible.
11. The prosecution case further becomes dubious when P.W.5 Nazeer Hussain the witness
of the alleged disclosure and recovery memo stated that after recovery of memory card the same
was played and watched on a mobile phone of the convicts/petitioners and the same was brought
from their house. But quite contrarily the P.W.7 Muhammad Azam, SI/Investigating Officer
stated that memory card was played and the movie was watched on his personal mobile. The
prosecution' s case had further been negated, when witnesses admitted before the court that in
alleged nude photographs and movie neither the faces of the convicts/petitioners were seen nor
the victim could be identified in both the articles. The prosecution's case ear ned very serious
doubts when the convicts/petitioners were medically examined on 9 -11-2011 and the victim was
examined on 10 -11-2011 by P.W.6 (Dr. Meher Din) District Health Officer Rakhni. The offence
was alleged to have been committed in Barkhan and P.W. 7/ Investigation Officer admitted that
the hospital exists and doctor was available in Barkhan. He further admitted that Rakhni is at a
distance of more than two hours drive from Barkhan. The statement of P.W.6 (Dr. Meher Din)
was also of no avail to the p rosecution because in respect of convicts/petitioners, he had opined
upto the extent of sexual potency of convicts/ petitioners and in respect of victim, he opined that
he is a habitual catamite. The witness is totally silent about procurement of blood gro up or
seminal samples of convicts/petitioners, as well as, about securing seminal stained anal swab of
the victim. There is no cavil to the proposition that in cases of carnal intercourse the opinion of
medical witness has got very significant importance a nd without the opinion of medical expert it
cannot be ascertained whether the offence has been committed or not. The judgment cannot be
surrendered to the opinion of the doctor alone and the said opinion cannot be held binding on the
court, when the same w as rendered against the principles of medical jurisprudence, especially,
when the known and settled procedure of medical examination of the victim of unnatural offence
was not adopted.
12. In the instant case semen matching would have clinched the issue and the medical
evidence cannot be considered in isolation but accumulative effect of whole evidence is to be
seen. The comparison and grouping of the semen was highly essential to connect the accused
with the commission of offence. In the instant case no such exercise was carried out, therefore,
the opinion of medical witness is not worth the paper on which it was rendered. The well known
jurists of all times in the field of medical jurisprudence and toxicology the Modhi and Parekh are
in unison that, "one cannot retain semen after passing stool and washing of body and semen
inside the anus washes away in case the victim eases himself". It is not understandable that when
the alleged unnatural offence was stated to have been committed one week before the reg istration
of the FIR how the victim retained the semen in his anus for such a long period, which course is
humanly impossible, therefore, the medical opinion being not conclusive and non -speaking must
be examined on the touchstone of the medical jurisprude nce and by doing so, same did not find
any place under the well known principles of medical jurisprudence. When the doctor once
opined that the victim is a habitual catamite then without obtaining anal swab of victim's body, it
could not be ascertained, wh ether the convicts/petitioners have committed sodomy or anyone
else has committed the offence.
The nude photographs and nude movie alone cannot establish the offence of sodomy that
too, when nobody's face can be recognized in either one. The courts of l aw are bound to take the
judicial notice of certain facts like universal truths, everyday science and ordinary and common
pursues and routines of general nature, like in the instant case the alleged offence was stated to
have been committed on 9 -11-2011 wi th further assertion that at 10:30 a.m. the victim came
home and complained about the unnatural offence, he stated that he was in school, when one of
the convicts/petitioners came and asked him to wait for them. Then after school hours he
remained set ther e and waited for convicts/petitioners, on arrival the convicts/petitioners
appeared and attempted to commit sodomy upon him. The question of significant importance
would be that when the victim came home at 10:30 a.m., when he already waited for them after
the closure of school. The court was under the legal obligation to have considered the fact that at
what time the school commences and closes. It could have been ascertained if some judicial
mind would have applied. The trial court as well as, the appella te court was oblivion of their
judicial obligation as a court of law. The trial court could have unearthed the truth just by going
through the calendar of the relevant year, wherein on 9th November, 2011 all schools and
Government offices were on National holiday in terms of "Iqbal Day" and at page 49 of the
petition, a certificate issued by the Principal Government Model High School, Barkhan is
appended, which shows that the school was closed due to National holiday. Thus, this aspect of
the matter complet ely diminishes the prosecution's version, which casts a serious doubt in
respect of manner and circumstances alleged by the prosecution.
The matter was finally heard and was reserved for judgment, when in both the connected
petitions Criminal Miscellane ous Applications Nos. 167 and 168 of 2014 were filed by the
learned counsel for the complainant captioned as, "Application under section 561 -A, Cr.P.C. for
not pressing above titled Revision Petition", wherein, it is contended that a compromise has been
affected between the parties, therefore, the complainant intends to withdraw Criminal Revision
Petition No.179 of 2012 and in Criminal Revision Petition No. 76 of 2012 the complainant will
have no objection if the convicts/ petitioners are acquitted of the c harge, however, irrespective of
maintainability of the complainant's Revision Petition, since an application has been moved for
withdrawal of Revision Petition, therefore, I am inclined to accept the application and Criminal
Revision Petition No. 179 of 20 12 is dismissed as withdrawn. The Criminal Miscellaneous
Application No.167 of 2014 filed in Criminal Revision Petition No. 76 of 2012 is not
maintainable for the reason that in Column No.6 of the Schedule II of Cr.P.C. the section 377
(Unnatural Offences) of Pakistan Penal Code is not compoundable. Therefore, the application up
to extent of compromise is also dismissed.
Thus, in view of above discussions it can safely be concluded that prosecution was
miserably failed to substantiate the charge against the convicts/petitioners therefore, the Criminal
Revision Petition No.179 of 2012 is dismissed as withdrawn. The Criminal Revision Petition
No.76 of 2012 is hereby accepted and the petitioners/convicts are acquitted of the charge.
HBT/43/Bal Order accordingly.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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