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Criminal Revision No. 176 of 1966, decided on 6th July 1976.

-----Evidence, appreciation of‑Benefit of doubt‑Victim of sodomy, a boy of tender age, although found bleeding profusely per medical evidence yet no blood‑stained earth seen at place of offence‑--Testimony‑ of witnesses as to manner of escape of culpirt after committing offence running counter to each other--‑Possibility that boy was subjected unnatural intercourse at same‑place and by some one other than those mentioned in prosecution version not excluded‑‑‑‑Accused given benefit of doubt and acquitted, in circum stances‑Penal Code (XLV of 1860), S. 377.‑[Evidence‑Benefit of doubt].

R. A. Jermey for Petitioner.

Nemo for the State

Date of hearing: 6th July 1976.

Zulfiqar petitioner was convicted and sentenced to four years' R. I. under section 377, P. P. C. vide judgment of the learned Magistrate Section 30, Khanewal dated 22‑12‑1965. He filed an appeal before the learned Addi tional Sessions Judge, k1ultan, who vile his judgment dated 24‑2‑1966 while dismissing his appeal, reduced his sentence from four years' R. I. to two years' R. I.

2. Hence this revision petition which was admitted by this Court on 11‑3‑1966 and ultimately the petitioner was released on bail vide another order of this Court dated 15‑3‑1967.

3. The brief facts of the case are that Muhammad lqbal aged five and a half years was subjected to sodomy by Zulfiqar petitioner aged 16 years and this was witnessed by the mother of the victim Mst. Amiran. It is also in the prosecution case that his father Nawab P. W. 2 also reached at the spot and saw the petitioner scaling over the wall of the house. The prosecution has also produced P. W. Khadim Hussain who stated that he saw the culprit running out of the door of the Ihata.

3‑A. The case of the prosecution rest on the testimony of the victim Muhammad Iqbal and above‑mentioned witnesses i. e. Nawab, father, Mst. Amiran, mother of the victim and Khadim Hussain P. W., supported by the medical evidence. According to the medical evidence the boy was subjected to carnal lust against the law of nature and Zulfiqar petitioner who was examined by a doctor was also found physically capable of performing sexual intercourse.

4. Learned counsel for the petitioner has submitted that Muhammad Iqbal victim while appearing before the trial Court after being extensively examined, was found by the said Court as a person who fully understood the questions and gave plausible answers. According to the learned counsel this witness being a crucial witness of this case, has not supported the case of the prosecution. When be was examined on this point he straightaway denied that he was aware of the person who had subjected him to sodomy. Later on when he was declared hostile and cross‑examined, he however, admitted that Riaz, the younger brother of the petitioner was the actual culprit but he also in the course of that cross‑examination named the present petitioner, as the person who had committed sodomy on his person. According to the learned counsel whatever may be the intrinsic value of the evidence of this witness, the fact remains that as he was declared hostile, therefore, according to law his testimony was of no avail either to the prosecution or the defence. It was further submitted that when the testi mony of the star witness of this cast good excluded, hardly any reliance can be placed on the statement of the mother of the victim who cannot be considered a truthful witness. Learned counsel has drawn my attention to the site‑plan, which does not show any stains of blood on the ground although according to the medical evidence the boy was bleeding profusely. Learned counsel also criticised the statement of the father of the victim whose testimony runs contradictory to the statement of Khadim Hussain P. W. because the former had seen the petitioner over the wall while the latter categorically stated that he had seen him emerging out of the door of the Ihata. It has been further made out, that the examination of Zulfiqar petitioner, who was a grown‑up boy of 16 years, would have certainly borne the sign of this act, which was committed against a very tender child but medical evidence does not show that he suffered any injury on his male organ. In view of the above contentions, learned counsel has claimed the acquittal of the petitioner who according to him was dubbed as culprit on the whim and fancy of a child witness a testimony of dangerous kind.

5. I have given anxious thought to all these contentions raised by the learned counsel for the petitioner and have perused the record of the case carefully with their assistance. Undoubtedly Muhammad Iqbal straightaway denied the knowledge of his tormenter. Later on in his evidence, he positively named Riaz as the culprit who had committed sodomy on his person. It seems that due to over anxiety of the learned counsel appearing on behalf of the defence the witness blurred out the name of Zulfiqar as the person who committed this crime on his person. With this state of affairs in the interest of safe administration of criminal justice and in accordance with the law laid down I will rule out the testimony of Muhammad lqbal from the evidence. This will leave me with Mst. Amiran who is the only witness who claimed that she had positively seen Zulfiqar petitioner committing this act on the person of her son. I am afraid it would be not possible to believe her as if the offence was committed as stated by her in the courtyard of her house, then there would have been a positive evidence in the form of blood‑stained earth at that place as according to the medical evidence the boy was bleeding profusely. With this infirmity in her evidence, the possibility of some other location cannot be excluded where this act was committed by some body else on the person of this boy. As far as the statements of Nawab and Khadim Hussain P. Ws. are concerned, hardly any reliance can be placed on their testimony because testimony of both these ‑witnesses runs counter to each other as they do not agree as to the manner of the escape of the culprit from the place of occurrence. I am convinced in my mind that although this boy was subjected to unnatural intercourse but it cannot be said with certainty who committed the same. May be it was Riaz or may it was Zulfiqar and even there may be somebody else whom the boy would not like to name or was unable to identify. The learned counsel has referred to Rishi Lal v. Emperor (A I R 1937 Oudh 277) wherein the learned Judge quoted an illuminating passage reported in A 1 R 1930 Oudh 106 regarding the veracity of a child witness:‑

"There is no more dangerous witness than a young child. Any mistake or discrepancies in their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make believe, so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate."

In the, light of the above discussion, I am of the considered opinion that the case against the petitioner is not free from doubt. If the learned Courts below would have read the evidence in its true perspective, I am confident they would have come to a different conclusion. Their judgments suffer from misreading of evidence.

7. The result is that I accept the revision petition, set aside the conviction and sentence of the petitioner and acquit him. Since, the petitioner is on bail, he is discharged of his bail bonds.

Revision allowed.

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