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Criminal Appeal No. 22(S) of 1986, decided on 22nd July, 1986.

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Leave to appeal granted to examine, whether inordinate delay in lodging F.I.R. had been properly explained, and whether identification of convicts was free from reasonable doubt.

‑‑‑S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Kidnapping or abducting in order to commit unnatural offence‑‑Benefit of doubt‑‑No specific mention of distance between place where victim child was playing and place to which he was removed for committing carnal intercourse against order of nature‑‑Distance, at places, described as short distance and victim describing it as a long distance‑‑Discrepancy and lack of certainty‑‑Benefit of doubt, held, must be extended to accused so far as offence under S.12 of Ordinance was concerned‑‑Conviction and sentence set aside‑‑Conviction under S. 377, P.P.C., however, found fully established and findings of two Courts suffered from no legal infirmity which may call for interference‑‑Helpless child aged 5 years having been made victim by two accused, grown up persons leniency in sentence would clearly appear to be uncalled for‑‑Conviction and sentence maintained‑‑Benefit of S. 382‑B, Cr.P. C. , directed to be extended to accused and half of fine recovered from accused ordered to be paid to victim child as compensation.

Shamas Saeed Ahmad Khan v. Shafaullah and another 1985 SCMR 1822 and Muhammad Akhtar v. Muhammad Rafique and another 1986 SC M R 533 ref.

Raja Aziz‑ud‑Din Ahmad, Senior Advocate Supreme Court and Ch Akhtar Ali. Advocate‑on‑Record (absent) for Appellants

Sh. Ijaz Ali, Advocate Supreme Court for the State.

Date of hearing: 22nd July, 1986.

Leave to appeal was granted to the two convicts under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; hereinafter referred to as the Ordinance, and under section 377, P.P. C. to examine whether the inordinate delay in lodging the First Information Report had been properly explained and the question of the identification of the convicts was free from reasonable doubt.

On the 27th of March, 1983 Shahbaz Safdar (P.W.2) aged 5 years was playing outside in village Kokan Jhand. The two appellants enticed him to a more desolate place close by on the promise of giving him "Ber" and there each of them committed sodomy on him. He came to the house weeping reported it to his grandmother and his father Safdar Ali (P.W.3) on coming to know of it proceeded to the Police Station with his son for lodging the report but was intercepted by relatives and respectable who wanted that the matter be patched up and not reported to the police. It was only by a ruse that on 29‑3‑1983 he was able to bring the child to the police station Gujar Khan and lodged the report at 2.30 p.m. Dr.Ghayur Alam (P.W.1) examined the boy, found superficial abrasion around the anus and when the Chemical Examiner reported that only swabs showed presence of semen that he reported that sodomy had been committed on him. His Shalwar according to the Chemical Examiner had blood and semen stains on it.

The appellants denied the occurrence, their impication in it and stated that a false charge had been levelled against them on account of the enmity of Sardar Ali (P‑W.3) with the father of Abdul Wadood appellant who had stopped him from visiting the house of widow Mst.Resham Jan and fists and kicks blows were exchanged between them.

The trial Court believed the statement of Shahbaz Safdar and Safdar Ali (P.W.3), considered it sufficient alongwith the medical opinion and the Chemical Examiner's report to arrive at the guilt of the appellants under section 12 of the Ordinance and under section 377, P.P.C. The), were both convicted accordingly. For the offence under section 12 of the Ordinance, they were sentenced to 15 years' R.I. 15 stripes and a fine of Rs.10,000. For the offence under section 377, P.P.C. they were sentenced to 10 years' R.I. a fine of Rs.10,000, or in dafault 2 years' R . I

On appeal, the Federal Shariat re‑examined the entire evidence, considered their plea and upheld their conviction and sentence.

The learned counsel for the appellants contended that the First Information Report had been lodged over 48 hours of the occurrence and this inordinate delay had taken place only because the victim was a child had not been able to identify the culprits. This, according to the learned counsel for the appellants, is borne out by the fact that the victim had given the names of the culprits' as Dhooda and Bhundi and it did not appear from any evidence except that of the child himself that the appellants were known by these names also. As regards conviction and sentence under section 12 of the Ordinance it has been stated that distance to which the victim was removed by the culprits has not at all been established or brought on record and in the absence of it the benefit of the law laid down by this Court is Shamas Saeed Ahmad Khan v. Shafaullah and another 1985 S C M R 1822 and Muhammad Akhtar v. Muhammad Rafique and another 1986 SCMR 533 should be extended. The learned counsel for the appellants further stated that the medical evidence by itself did not prove that sodomy was committed and that only after the Chemical Examiner's report was received that the doctor was in a position to give such an opinion.

It is true that the lodging of the F.I.R. was delayed by 48 hours but there appears as explanation for it in the report itself Safdar Ali (P.W.3) stated so at the trial. There was no question but on this aspect of his statement with any success to make that explanation doubtful or unacceptable. In the circumstances that explanation would appear to be satisfactory and plausible.

The two Courts have believed, and we think rightly so, that the child had been subjected to sodomy. He identified and named the two appellants as Dhooda and Bhundi. Again, on this aspect of the prosecution case also there was no meaningful cross‑examination to suggest that these alias was attributable to some other person or it did not stick to the appellants. This was a question of fact and had to be established or rejected like any other question of fact by disputing it and bringing on record evidence at variance with it. The child having identified and so described the appellants who resided in the same village to which the child belonged, there could be no question of mistaken identity.

We have gone through the evidence on record including the site plan with care but do not find any specific mention of the distance between the place where the child was playing and the place to which he was removed for committing carnal intercourse against order of nature.

At places it has been described as short distances. The victim described it as a long distance. In view of this discrepancy and lack of certainty the decisions of this Court in the two cases referred to by the learned counsel for the appellants shall be of avail to the appellants. The benefit of doubt must, therefore, be extended to them so far as the offence under section 12 of the Ordinance is concerned. As regards their conviction under section 377, P.P.C. was find that it is fully established and the findings of the two Courts suffer from no legal infirmity which may call for interference. In the matter of sentence, the learned counsel for the appellants has contended that shortly before this event the two appellants had been married and a more lenient sentence would serve the ends of the case. We find that a helpless child aged 5 years has been made the‑victim by these grown‑up persons. Any leniency in the sentence would clearly appear to be uncalled for. While maintaining the conviction and sentence of the appellants and dismissing their appeal with regard to conviction under section 377, P.P.C. we direct that the benefit of section 382‑B, Cr.P.C. be extended to them and half the fine recovered from them be paid to the child as compensation. Their appeal so far as their conviction under section 12 of the Ordinance is concerned is hereby allowed and their conviction and sentence under that section is set aside.

S. Q. Order accordingly.

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