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Criminal Appeal No. 84 of 1982, decided on 6th November, 1983.

-- S. 377-Criminal Procedure Code (V of 1898), S. 417-Appeal against acquittal-F. I. R. lodged after delay of 2 days without any reason-Neither any person in village informed of occurrence nor any steps taken for lodging report with promptitude--Injuries on rectum, anus or para annal region not found-Delay in forwarding swabs taken from rectum of complainant for chemical analysis, not explained-Trousers stated to be stained with semen and blood but Investigating Officer neither deposing to that effect nor taking same into possession - Prosecution, held, failed to prove case against accused respondent beyond reasonable doubt-Even if two conclusions of guilt of accused equally possible-Trial Court fully justified in drawing conclusion in favour of accused - Order of acquittal maintained in circumstances.-[Appeal against acquittal].

Abdul Khaliq Khan for the State.

Malik Saeed Akhtar for the Complainant.

Khalid-ur-Rehman for Respondent.

Date of hearing : 6th November, 1983.

-This appeal by the State under section 417, Cr. P. C. is directed against the order of the learned Magistrate 1st Class, Haripur, dated 24th November, 1981 whereby Muhammad Iqbal (respon dent) was acquitted of the charge under section 377, P. P. C.

2. The prosecution case against the respondent is that on 25th November, 1980 at deegarwela Fazal Rashid (complainant), aged 9/10 years, with his younger brother Faisal Rashid went to the house of the respondent for the collection of maize which was due for the services rendered by the father of the complainant who was an Imam of the village Mosque. When the complainant and his brother entered the house of the respondent, they found none else present excepting the respondent who enquired about the cause of their visit. When the complainant informed him that they had come to collect the maize, the respondent asked the complainant to come inside the room while his brother was asked to wait outside. Inside the room the respondent forcibly opened the string of the trousers of the complainant and committed sodomy upon him. The respondent put his hand on the mouth of the complainant to prevent him from raising hue and cry. After the offence was committed, 3/4 seers of maize was given to the complainant by the respondent who came out of the room weeping and informed his brother Faisal Rashid as to what had happened. The complainant later on informed his mother about the occurrence who went to the house of the respondent and made a complaint but no notice of her complaint was taken. On the third day of the occurrence, the father of the complainant came back to the village from Abbottabad and on getting information of the occurrence took the complainant to the Police Station for lodging the report. The injury sheet of the complainant was prepared and he was forwarded to the hospital for medical examination. ,

3. The complainant was examined by Dr. Nur Wahab Shah (P. W. 7) on. 28th November, 1980 at 1 p. m. According to the doctor no injury was found in the rectum, anus or para-annul region or any other part of the, body. Annal and para-annul swabs were taken and sent to the Chemical Examiner for analysis and opinion. The doctor stated that according to the victim the occurrence had taken place 4/5 days ago. The doctor also proved his report Exh. P. C. He opined that if there had been any injury on the person of the victim it would not have vanished during the period of 4/5 days. He further stated that in case of penetration there should have been marks of violence in the rectum, anus and para-annul region. According to the doctor he bad taken the swabs from the rectum of the complainant and despatched the same to the Chemical Examiner for analysis and opinion. But later on when examined again as C. W. 1, he stated that he could not say in whose possession the swabs were after 28th November, 1980 because the Chemical Examiner's report showed that the swabs were received in his office on 12th January, 1981. He further stated that most probably the swabs were sent not by him but by the S. H. O. to whom his clerk might bad delivered the swabs for onward transmission to the Chemical Examiner.

4. Abdul Rashid (P: W. 1), father of the complainant, stated that 'on the day of occurrence he had gone to Abbottabad in connection with his service matter. He returned from Abbottabad on 27th November, 1980 and came to know about the occurrence. He then took the complainant to the Police Station for lodging the report. He stated that it was incorrectly recorded in his Police statement that he returned to the village from Abbottabad on 25th November, 1980. Fazal Rashid complainant (P: W. 2) reiterated the contents of the report lodged by him and stated that he was forcibly subjected to sodomy by the respondent. On the next day of the occurrence his father returned from Abbottabad who was informed of the occurrence. He further stated that the trousers which he was wearing at the time of the occurrence and the string whereof was broken by the respondent, was produced by him in the Police Station at the time of lodging the report. The trousers according to him, was stained with blood and semen.

5. Nazar D. F. C. (P. W. 3) stated that Mohabat Khan F. C. brought two bottles containing semen etc. from the hospital which was taken into possession by the Investigating Officer vide recovery memo. (Exh. P. B.) He stated that the recovery memo was prepared on 21st December, 1980 and on the on the same day it was signed by him. The bottles were packed and sealed into a parcel on the same day.

6 Mst. Zarian Bibi (P. W. 4), mother of the complainant, stated that she had sent the complainant and his younger brother to the house of the respondent for collecting the maize. On their return, she was informed by the complainant that he had been subjected to sodomy by the respon dent. She went to the house of the respondent to complain about the occurrence but the father of the respondent refuted the allegations. On the third day of the occurrence her husband came back to the village and on getting the information of the occurrence, took the complainant to the police Station for lodging the report. In cross-examination she stated that after the occurrence the complainant was with her but she did not send any one to inform the father of the complainant or his grandfather about the occurrence. She further stated that Sarwar, the uncle of the respon dent, had forcibly occupied a disputed house and had also brought a civil suit against her father-in-law regarding their landed property after the present occurrence. She denied the suggestion that the case against the respondent was concocted on account of the strained relations between the parties.

7. Muhammad Akram I. H. C. (P. W. 6) has recorded the report of the complainant on 27th November, 1980 at 4-30 p. m. in the Police Station. He stated that the bottles containing the swabs were produced to him on 21st December, 1980 and on the same day these were forwarded to the Chemical Examiner through a Constable.

8. The respondent, where examined in- the trial Court, stated that his uncle Sarwar Khan had a dispute over the property with Maulvi Abdul Majid, grandfather of the complainant, who was turned out from the village and was living in Khalabat Township. He stated that on account of this enmity the present case was concocted against him with a view to put pressure upon his father and uncle to give up their claim to the landed property.

9. The learned counsel for the State contended that the delay in lodging the report has been sufficiently explained because the father of the complainant was not present in the village and, therefore, the report was lodged on 27th November, 1980 on his arrival from Abbottabad. He further argued that there was no reason why a false charge of this nature should have been brought by the complainant party against the respondent and that the alleged litigation between the parties was initiated by the relations of the respondent subsequent to the occurrence to create a motive for a false charge against the respondent. It is also urged that the state ment of the complainant is duly corroborated by the opinion of the Chemical Examiner to the effect that the swabs taken from the rectum, anus and the para-annul region of the complainant were found to have been stained with semen of human origin. On the other hand they learned counsel for the respondent argued that according to the medical evidence no injury in or around the anus of the complainant was found. The doctor stated that had there been injuries on the person of the complainant they would not have vanished in a period of 4/5 days. It is also urged that not only there was an unexplained delay in lodging the report, there was also delay in forwarding the alleged swabs taken from the rectum of the complainant to the Chemical Examiner and these facts when taken into consideration in the background of the enmity which wars existing between the parties, the prosecution case becomes highly doubtful. It is urged that no doubt the civil litigation between the parties started after the present occurrence but from the copy of the plaint it was evident that the dispute over the property was going on between the parties since 1964.

10. It is evident that the occurrence had taken place on 25th November, 1980 at deegarwela but the report was lodged on 27th November, 1980 at 4-30 p. m. in Police Station Kot Najibullah which is at a distance of 3/4 miles. According to the prosecution the delay was occasioned because the father of the complainant was not present in the village. However, when examined in Court, the father of the complainant stated that he had reached back to his village from Abbottabad on 25th November, 1980 but in cross-examination he said that he returned to the village on 27th November, 1980. When confronted with his police state ment he said that it was incorrectly recorded therein that he had returned to his house on 25th November, 1980. Assuming that he came back to the village from Abbottabad on 27th November, 1980, there appears to be no reason why the matter should not have been reported to the police earlier. There is nothing on the file to show that-any other person in the village was informed of the occurrence by the mother of the complainant or any steps were taken for lodging the report with promptitude.

11. Dr. Nur Wahab Shah (P. W. 7) had categorically stated that he had examined the complainant, aged 9/10 years, on 28th November, 1980 and found no injuries on the rectum, anus or para-annul region. He further stated that had there been injuries on the person of the complainant they would not have vanished within a period of 4/5 days Keeping in view the age of the victim, it cannot be urged that a boy of this age, when subjected to sodomy by force, there was no possibility of his sustain ing the injuries. Further, no implicit reliance can be placed on the opinion of the Chemical Examiner for the reason that the prosecution has failed to explain the delay in forwarding the swabs taken from the rectum of the complainant for chemical analysis. According to the evidence the swabs were taken on 28th November, 1980 which according to the earlier state ment of the doctor were despatched by him to the Chemical Examiner but in his subsequent statement he gave the version that most probably the swabs were not sent by him but by the S. H. O. to whom his clerk Might have delivered for onward transmission to the Chemical Examiner. Accord ing to the statement of Nazar D. F. C. (P. W. 3) the bottles containing the swabs were brought to the Police Station on 21st December, 1980 and on the same day they were sealed into a parcel and forwarded to the Chemical Examiner. Muhammad Akram I. H. C. (P. W. 6) had stated that on 21st December, 1980 thin bottles containing the swabs were sent to the Chemical Examiner through a Constable. However, the Chemical Examiner's report revealed that the swabs were received by him on 12th January, 1981. It is evident that the swabs taken from the rectum off the complainant on 28th November, 1980 were received by the Chemical Examiner on 12th January, 1981 and there is no explanation as to where the swabs were lying during the intervening period. Moreover, the possibility of the complainant having passed the stools in between 25th November, 1980 and 28th November, 1980 cannot be excluded and in case of passing the stools it is difficult to believe that the swabs taken from the rectum of the complainant on Ole third day of the occurrence would be stained with semen. Thus, in the circumstances we do not feel satisfied to rely on the opinion of the Chemical Examiner. Fazal Rashid (complainant) had stated in cross -examination that the trouser, which he was wearing at the time of the occurrence and the string whereof was broken by the respondent, was produced by him to the police when the report was lodged. The trouser was stated to be stained with semen and blood but strangely enough the Investigating Officer had neither deposed to this fact nor prepared the recovery memo. thereof. Had the trouser been taken into possession it would have furnished a strong corroborative piece of evidence to support the prosecution.

12. We have come to the conclusion that in view of the evidence produced in the case the order of acquittal of the respondent is neither perverse nor unreasonable. The prosecution case against the respondent is not proved beyond any shadow of reasonable doubt. Even if two conclusions of the guilt of the accused were equally possible, the trial Court was fully justified in drawing the conclusion to favour of the accused.

13, For the aforesaid reasons, the order of acquittal passed by the learned trial Court is maintained and the appeal, being without any merit, is accordingly dismissed.

M. B. A. Appeal dismissed.

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