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Criminal Revision Application No.5 of 1984 decided on 7th August, 1984.

---S.377‑‑Unnatural offence‑‑Case of prosecution mainly resting on evidence of victim boy and report of Chemical Examiner, which would have furnished important evidence either in corroborating or contradicting evidence of victim boy and led to a just decision, not put into evidence by trial Court‑‑Conviction and sentence set aside and case remanded to trial Court for putting in evidence report of Chemical Examiner and deciding case afresh.

Shaikh Ayaz for Appellant.

Zawar Hussain Jafferi, A.A.‑G. for the State.

Date of hearing: 7th August, 1984.

The appellant Ghulam Qadir was convicted of an offence punishable under section 377, P.P.C. and sentenced to suffer R.I. for two years and also fine Rs. 1,000 or suffer R.I. for two months more in default by the learned Additional City Magistrate, Sukkur, by judgment dated 31‑7‑1982. He went in appeal in Sessions Court, Sukkur. The appeal registered under No.56/82 was heard by the learned III Additional Sessions Judge, Sukkur who dismissed it by judgment dated 9‑2‑1984. This revision application has been filed against the judgments of the courts below.

Prosecution, case briefly stated, is that P.W. Aftab Ahmed, who is a student, was returning to his village from Shikarpur on 13‑12‑1978 and was paddling a bicycle when he was caught hold of on the way by the applicant Ghulam Qadir and taken to a jungle and subjected to carnal intercourse against the order of nature. The victim boy complained to his father Muhammad Arbab and uncle Muhammad Haroon. The report of the incident was made at P.S. Bagarji by the victim boy on the next day at about 2‑15 p.m. He was referred to Medical Officer Bagarji for medico‑legal examination. The Medical Officer Dr. Shafi Muhammad observed two lacerations on inner side of his anal canal and took two anal swabs for the purpose of chemical examination. He reserved his opinion regarding the nature of injuries till the report of the Chemical Examiner. The report of the Chemical Examiner was awaited. The case was sent up. The applicant was tried, convicted and sentenced. The report of the Chemical Examiner was not put in evidence. However, the learned trial Magistrate held the applicant guilty of the offence punishable under section 377, P.P.C. on the basis of evidence of the complainant Aftab Ahmed, his father Muhammad Arbab and uncle Muhammad Haroon and incomplete evidence of the Medical Officer, Dr. Shafi Muhammad. The learned III Additional Sessions Judge, Sukkur, upheld the conviction on the basis of the same evidence.

The learned counsel for the applicant has urged that the important evidence that of the report of the Chemical Examiner was not put in evidence. According to him, that report is material evidence for either‑ corroborating the prosecution evidence or contradicting it. The learned A. A.‑G. states that it appears from papers that report of the Chemical Examiner was obtained but it seems to have been misplaced and it was not put in evidence. Since the case of the prosecution mainly rests on the evidence of the victim boy, the report of the Chemical Examiner would furnish important evidence either in corroboration of the evidence of the victim boy or in contradicting it and lead to a just decision of the case. Accordingly, the judgments of the courts below and conviction of the appellant and the sentence awarded on him are set aside and the case is remanded to the Additional City Magistrate, Sukkur, for putting in evidence the report of the Chemical Examiner and give decision afresh. The applicant shall appear in that Court on 27‑8‑1984 and furnish surety inn the sum of Rs.5,000 for appearing in the Court till decision of the case. The revision application is allowed accordingly.

M. H. Y. Revision application allowed.

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