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Criminal Appeal Nos. 10411 and 144/1 of 1983, decided on 20th November, 1983.

‑‑‑S.12‑‑Kidnapping for unnatural lust‑‑Report lodged after ‑two days of occurrence‑‑Explanation for delay not plausible‑‑First Information Report losing its authenticity‑‑Edifice of prosecution case raised on shaky foundation‑‑Prosecution witness most unreliable and no corrobora tion thereto existing on record‑ ‑Prosecution, held, failed to make out case against accused‑‑Conviction anal sentence set aside.

M. Bilai for Appellant.

Muhammad Aslam Uns for the State.

Date of hearing: 20th November; 1983

‑‑Nazar Hussain aged 16/17 years alongwith Riaz Hussain, Chairman, Union Council, Dulewala were on their way to Police Station on 2‑1‑1983 at 1‑00 p.m. when they were met by Muhammad Anwar A.S.I. Police Station Bhakhar (P.W.6) to whom Nazar Hussain made a report alleging therein that day before yesterday at evening time he was on his way to Bazar to purchase biscuits when Muhammad Yameen met him and started walking with him. In the meanwhile the light went off. When both of them reached near a deserted house of Fateh Khan, Muhammad Yameen threatened him with a knife, and led him by force to the house of said Fatah Khan where he took off his shalwar and started subjecting him to unnatural offence. Having felt pains in his rectum he started hue and cry as a result of which Mukhtar Hussain and Sher Muhammad were attracted to the spot who saw the occurrence. Muhammad Yameen made his escape good and the two P.Ws. took him the house. The elders of Muhammad Yameen had been begging for a compromise but he did not agree, therefore, the present report.

2. Muhammad Anwar A.S.I. (P.W.7) after recording the Marasela sent the same to the Police Station on the basis of which proper F.I.R. was drawn and the case registered against Muhammad Yameen appellant under section 12 of the Ordinance VII of 1979 read with section 377, P. P. C. Nazar Hussain complainant was sent to the Hospital for medical examination and Muhammad Anwar P.W. went to the spot where he prepared the site plan Exh. P.A./3. He arrested Muhammad Yameen on 10‑1‑‑1983 and got him medically examined. After completing the case he put the challan in the Court of the learned Sessions Judge.

3. At the trial the prosecution produced 6 witnesses. Muhammad Yameen appellant in his statement under section 342, Cr.P.C. has denied the charge and stated that the case has been fabricated against him at the instance of Malik Riaz with whom he has strained relations. After the conclusion of the trial the learned Sessions Judge while acquitting the appellant of the charge under section 377, P.P.C. convicted him under section 12 of Ordinance VII of 1979 and sentenced him to 16 years' R.I. 15 stripes and a fine of Rs. 10,000. The fine of recovery was ordered to be paid as compensation to the complainant and in default of payment of fine Muhammad Yameen was required to further undergo 5 years' R.I. vide his judgment dated 26‑7‑1983.

Muhammad Yameen appellant has come up in appeal against the findings of the learned trial Court and the complainant has also filed a Revision for the enhancement of sentence imposed upon Muhammad Yameer, under section 12 of Ordinance VII of 1979.

5. This order will dispose of both the appeal and the revision.

6. Mr. M. Bilal, Advocate was heard for the appellant in Criminal Appeal No. 101/1 of 1983 and Mr. Muhammad Aslam Uns, Advocate for the State. Neither the petitioner nor his counsel was present in Criminal Revision No. 144/1 of 1983.

7. We have heard the learned counsel for the appellant and the State in detail. In this case the appellant has been convicted under section 12 of Ordinance VII of 1979. As far this offence is concerned, we have the evidence of solitary witness in the person of Nazar Hussain who appeared as P.W.4. It is alleged by the prosecution that the occurrence had taken place on the 31st of December, 1982 at evening time but the report in this case was lodged by the complainant after two days of the occurrence. Though the complainant has furnished an explanation for the delay in lodging the report but this explanation is neither plausible nor reasonable and we simply ignore it. It will thus be seen that the very edifice of this case has been raised by the prosecution on the shaky foundation, the F.I.R. has, therefore, lost its authenticity.

7. Another important fact which has created doubt in our mind about the veracity of Nazar Hussain P.W. is that he had also charged the appellant under section 377, P.P.C. but this charge has gone unproved in that the allegation of the commission of sodomy by the appellant upon Nazar Hussain has been totally belied by the medico‑legal report. When Nazar Hussain P.W. could implicate the appellant falsely for such a shameless act which has gone unproved, he can very easily charge him falsely for his abduction. He is a most unreliable witness, therefore, it will be very difficult to convict the appellant for the delict on the solitary testimony of such a witness, moreso when not corroboration is available on the record.

8. The view, therefore, that we take in the matter is that the prosecution has not been able to make out a case against the appellant. We, therefore, accept his appeal, set aside his conviction and sentences and acquit hiss of the delict. We have already ordered his release through our short order dated 20‑11‑1983.

9. The Revision Petition automatically fails and is hereby dismissed.

M. Y. H. Appeal accepted.

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