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Criminal Appeal No. 33‑K of 1984, decided on 22nd November, 1984.

‑‑S.12‑‑Penal Code (XI.V of 1860), Ss. 377, 365 & 170‑‑Complexion of accused could not be correctly ascertain during night and first informa tion report was lodged by uncle of victim and not by victim himself‑ Recording of complexion of one of accused as white in first information report whereas according to victim none of accused had white compelxion, held, could not be said a disc: of false involvement,, in circumstances.

---S.377‑‑Offence of Zina (Enforcement of 1ludood) Ordinance (VII of 1979), S.12‑‑Evidence, appreciation of‑‑Victim correctly picking accused in identification parade and affirming their involvement in case‑‑implica tion of accused on prompting of police due to enmity with victim not suggested by accused‑‑Accused suggesting implication by Anti‑Burglary Police, who caused them injuries which were of simple nature‑‑Injuries allegedly caused to accused during their arrest by Anti‑Burglary Police, held, would not reflect on veracity of prosecution case.

--‑S.170‑‑Impersonation‑‑One of accused a Police Officer as such could not be said that he was personating as public servant‑‑Conviction of accused under S.170, P.P.C. set aside.

‑‑‑S.365‑‑Accused abducting victim in order to subject him to carnal intercourse without any intention to confine him‑‑Victim stating that after satisfying their lust accused allowed him to go‑‑Section 365, P.P.C. held, not applicable and set aside.

Munawar Malik and Mahmood Iqbal for Appellants

Syed Murtaza Hussain for Respondent.

Date of hearing: 22nd November, 1984.

Abdul Aziz a police constable and Tahir Shah a Rickshaw driver were proceeded against under section 12 of the Offence of Zina (Enforce ment of Hudood) Ordinance, 1979, and sections 377, 365, 170 of the P.P.C. They were tried by the Additional Sessions Judge XI, Karachi who vide his judgment, dated 31‑7‑1984 found both guilty under all the four counts and each was sentenced to 5 years' R.I., whipping numbering 30 stripes and a fine of Rs.1,000 or in default to three months' R.I. under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under section 377, P.P.C. to 5 years' R.I., under section 365, P.P.C. to one year's R.I. and a fine of Rs.500 or in default to undergo 1; month:,' R.I. and under section 170, P.P.C. to one year's R.I. The sentences were ordered to run consequently. The word consequently posed difficulty for me to find out whether it means consecutively or concurrently. By filing a joint appeal both have questioned their conviction and sentences.

2. Briefly stated the prosecution story that can be gleaned from the evidence brought on record is that the first informant Shahul Hamid alongwith his nephew Salim Naz a boy aged 16/17 years, after visiting his niece at Soldier Bazar Maternity Home, Karachi on 13‑8‑1983 at about 12.30 a. m. was waiting for a bus near round about a Purani Numaish on M.A. Jinnah Road, Karachi, when two persons riding on Suzuki Motor‑cycle arrived there and informed the first informant that they were police officers and his nephew Salim Naz was a thief. They searched the first informant and secured a sum of Rs.100 from his pocket who was told to go to his house, whereas they took the boy Salim Naz towards the Police Station. The first informant by riding a bus went to his home. About S.00 a.m. Salim returned home and informed the complainant that both the persons instead of taking him to police station, took him to a Nursery where they subjected him to carnal intercourse against the order of nature. The complainant took his nephew to Police Station, where the complainant lodged the first information report. On 27‑8‑1983 Raja Muhammad Iqbal, S.I., Anti‑Burglary Police Liaquatabad Division, Karachi arrested both the accused. Later they were delivered to Soldier Bazar Police for further necessary action. After necessary investigation they were challaned to Court to face the trial.

3. Doctor Liaquat (P.W.7) medically examined Salim Naz, a boy aged 15 years, who opined that sodomy was committed with the boy. On 28‑8‑1983 the same Doctor examined Tahir Shah and Abdul Aziz appellants who found them fit to perform sexual act.

4. The medical certificate Exh.25 issued by Doctor reveals that redness and congestion were found around anal region. Tenderness around anus was present. The boy had passed stool and had changed the: clothes. After observing all these signs the doctor was of the view that the boy was subjected to sodomy.

5. Abdul Haleem Magistrate held identification parade of the two accused on 4‑9‑1983. Salim victim was summoned, who correctly identified both the accused who had committed sodomy with him. Shahul Hamid the uncle of victim boy at the trial reiterate what was deposed by him in First Information Report. He stated in Court that both the accused were the same persons who had taken his nephew when they were waiting for a bus at Purard Numaish, M.A. Jinnah Road, Karachi. Salim Naz the victim appeared as second prosecution witness whose version at the trial was that lie alongwith his uncle Shahul Hamid on 13‑8‑1983 at about 1'1,.30 a.m. was waiting for a bus, two persons approached them on riding a Suzuki Motor Cycle who introduced them selves to be police personnels. They told his uncle that Salim is a thief. One of them showed him his police card. Both directed his uncle to go away and they asked him to ride the Suzuki Motor Cycle as they intend to take him to Police Station. By riding Motor Cycle they took him to a Nursery at Qaidabad where taking him behind bushes both sodomized him. Leaving him on the road both the accused went away. On reaching the house at S.00 a. m. he informed his uncle who took him to Police Station, where his uncle lodged the First Information Report. He was referred to a Doctor for medical examination. He also showed the police the scene of crime. Later he was asked to identify the culprits. An identification parade was held and lie correctly picked up both the accused to be the culprits who had subjected him to carnal intercourse. Muhammad Manz (P.W.6) was duty officer at Police Station, Soldier Bazar, Karachi. He correctly recorded the First Informa tion Report on 13‑8‑1983 at the instance of Shahul liamid. Salim the victim was in his company who was sent to Hospital for medical examination and treatment, lie prepared the site plan of the place of occurrence. He also applied for the holding of an identification parade. Both the accused were got medically examined. The case was ultimately sent to Court for trial.

6. Abdul Aziz accused a constable in Police Department when examined under section 342, Cr.P.C. denied the charge and stated that tie was falsely implicated in the case at the instance of Javaid a police informer who is the brother of accused Tahir Shah. Tahir Shah also pleaded innocence and stated that lie was involved in this case at the instance of his elder brother Javaid Hasnad with whom he was not having cordial relation. Both the accused stated that they were subjected to maltreatment by the police. Three witnesses were examined in defence. Ali Mardan (D.W.1) had stated that he knew only accused Tahir Shah. One day at about 4.30 p.m. both the accused were apprehended by Anti‑Burglary Staff of Liaquatabad Police. While apprehending the police informed him that both were wanted in many dacoity cases. Ghulam Rabani the second defence witness gave a similar version. Doctor Iqbal was also examined as defence witness No.3 who deposed that on 1‑9‑‑1983 he examined Tahir Shah and found the following injuries on his person:‑‑

(1) Abrasion one and a half inches x 1/8" over lateral aspect of left forearm.

(2) Abrasion 1/3" x 1/3" on lateral side of right foot.

(3) Abrasion x over right shoulder.

He also examined on the same day. Abdul Aziz accused and observed the following injuries:‑‑

(1) Abrasion 6" x 1 around the lower part of left forearm.

(2) Abrasion 1" x over lower part of dorsum of right forearm.

7. The learned counsel for the appellant submitted that according to the First Information Report one of the culprits was of white complexion whereas according to the victim none of the accused had white complexion. It is, therefore, a case of false involvement of the accused at the behest of the police who was against the accused. The contention lacks substance for the reason that during the night the complexion of the accused could not have been correctly ascertained. Moreover the First Information Report was lodged by the uncle of the victim boy and not by the boy himself. The victim was taken on a Suzuki Motor Cycle by the two accused and then both subjected him to the carnal intercourse. He correctly picked them up in the identification parade and affirmed of their involvement in the case by stating so in Court that these were the persons who had sodomized him. No suggestion was put to the victim as to the implication of the two accused on the prompting of the police or that tie had any enmity of his own to charge them falsely. One of the accused namely Abdul Aziz was serving as constable in the Police Department. There is nothing to suggest as to why his department would connect the case against him. No question was put to the Investi gation Officer to show why the police was interested in falsely implicating the accused in the crime. It is the case of the appellants that they were implicated by Anti‑Burglary Police, Liaquatabad who caused them injuries which are of simple nature. Even if it be accepted to be correct, there is nothing to show that the police of Liaquatabad Station had any axe of its own to grind against the accused. The role played by the Liaquatabad Police is above board and it has not been questioned at any stage. The injuries allegedly caused to the appellants during their arrest by Burglary Police would not reflect on the veracity of the prosecution case.

8. Coming to the offence committed by the accused, I find that section 170, P. P. C. is not attracted to by the facts of the case. One of the accused‑appellants is a police officer and to say that tie wash personating as public servant would not be correct. Accordingly the conviction and sentence of both the appellants under section 170, P.P.C. is set aside and they are acquitted of the charge.

9. As regards section 365, P.P.C the same is also not applicable. Both the accused had abducted the victim in order to subject him to carnal intercourse and there was no intention to confine him. Rattler it D is in the statement of the victim that after satisfying their lust the accused had allowed him to go. Therefore, the conviction and sentence under section 365, P.P.C. is set aside. Both are acquitted of this charge too.

10. However, the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. stand proved to the hilt. Convictions and sentences under both the charges are maintained and the appeal of the appellants to that extent is dismissed. ,

11. Whether the sentences on both the counts were ordered to run consecutively or concurrently has to be ascertained now. The learned Additional Sessions Judge, Karachi misused the word "consequently". The closing para No.31 of the judgment could help us in finding out the mind of the Court, wherein it has been observed "Abdul Aziz accused is a police constable and taking the illegal advantage of Govern ment position, he alongwith co‑accused, after insulting and annoying the complainant, forcibly took the victim boy Salim and subsequently he and co‑accused Tahir Shah committed illicit intercourse with the boy. Thus, the accused under these circumstances deserve a severe penal action, so that such offences should not be repeated in future by the other police personnels". It would show that the trial Judge intended to order the sentences to run consecutively and that 11conSe quently" was a misnomer. The sentences, maintained arc, therefore, to run consecutively.

M. A. K. Order accordingly.

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