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---S. 12--Penal Code (XLV of 1860), S.377--Kidnapping Unnatural offence--Accused responsible for taking victim away, both being residents of same village, living opposite to each other and class fellows--Accused taking victim only to distance of 50 Karams on pretext of urinating when other two accused joined--No evidence showing intention of kidnapping or abduction--Only intention of accused, held, could be to commit unnatural offence--No offence under S.12 of Ordinance was made out against accused in circumstances.

---S. 12--Penal Code (XLV of 1860), S. 377--Evidence, appreciation of--Three accused allegedly committing sodomy one after the other- Witnesses claiming to have seen commission of offence by all three accused from distance of only 25 Karams--Witnesses neither reacting till all three accused completed offence nor trying to reach spot--One of witnesses related to victim--Enmity between families of victim and deceased, not disputed--Victim deposing under influence of his father--Medical evidence contradicting ocular testimony--Considerable delay in lodging F.I.R.--Delay availed for deliberation and consultation--Evidence of witnesses to the effect that commission of sodomy was seen by all three accused, held, was not worthy of credence and was ruled out of consideration--Testimony of victim deposing under influence of his father also could not be made basis of conviction with out corroboration--Acquittal of accused ordered in circumstances:

Malik Rab Nawaz Noon for Appellants.

Muhammad Aslam Uns for the State.

Date of, hearing: 20th April, 1987.

Sher Abbas Khan son of Muhammad Abbas, Abaid Ullah Khan son of Amir Abdullah Khan and Rab Nawaz son of Muhammad Khan, all residents of Swance, district Mianwali, were convicted and sentenced by the Additional Sessions Judge-II, Mianwali, on 15-3-1987 for kidnapping Angoor Khan, aged 14 years and for committing sodomy. Sher Abbas Khan appellant was convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to undergo rigorous imprisonment for ten years, to whipping numbering ten stripes and to a fine of Rs.5,000 or in default of its payment to further suffer rigorous imprisonment for two years. All the three appellants were also convicted under section 377 P.P.C. and were sentenced to undergo rigorous imprisonment for seven years each and to a fine of Rs.2,000 each or in default of its payment to further suffer rigorous imprisonment for one year each. The substantive sentences of Sher Abbas Khan were ordered to run concurrently and the convicts were given benefit of section 382-B, Cr.P.C. The three convicts have assailed their convictions and sentences by this appeal.

2. Angoor Khan, aged 14 years, was a student of 9th class in Government High School, Swance, and lived in the same village with his parents. Sher Abbas Khan, his class-fellow, took him from his -louse to hill-side on the pretext of urinating. As soon as they reached Wan Tangiwala, Rab Nawaz and Abaid Uliah Khan appellants also joined after emerging from hiding. They were armed with .12 bore pistols. The appellants fell Angoor Khan on the ground. Sher Abbas Khan and Abaid Ullah Khan held Angoor Khan when Rab Nawaz appellant committed sodomy with him followed by Sher Abbas Khan and Abaid Ullah Khan who also committed unnatural offence with Angoor Khan when the remaining appellants held him during that time. The alarm raised by Angoor Khan attracted Khan Bahadar and Fateh Khan who reached the spot and witnessed the occurrence. Father of Angoor Khan was not at the house and returned on 18-1-1986 when Angoor Khan narrated the occurrence. Angoor Khan was got medically examined as a private case. The matter was reported by him with medical certificate on 19-1-1986 at 9.30 a.m. to Karam Hussain Shah, Sub-Inspector who after recording his statement at Paikhel police picket, sent the same to police station. Mochh where formal F.I.R. was registered at 10 a.m. on 19-1-1986.

3. The same Karam Hussain Shah, S.H.O., conducted investigation in this case. He inspected the spot and completed formalities. He arrested the appellants on 26-1-1986. He recovered a .12 bore pistol (carbine) with live cartridge from Rab Nawaz appellant and took the same in to possession. He also secured from Abaid Ullah Khan appellant a .12 bore pistol (Carbine) with live---partridge of .12 bore. He got the appellants medically examined, on 27-1-1987. After completion of investigation he challaned the appellants in Court.

4. Dr. Muhammad Ayub, medically examined Angoor Khan, aged 14 years, on 18- 1-1986 at 11.30 p.m., as a private case and observed as follows: -

"On local examination, there was no redness externally. On proctoscopy the anal and rectal mucosa were found healthy and normal. A scaral abrasion of 1 cm x 1/2 cm size on the back of right forearm, 2 cm below the right elbow joint. Three swabs were taken, one from perianal region and two from inside the anal canal. Injury No.2 was with some blunt weapon while it was simple in nature. Probable duration of injury was more than 48 hours."

The doctor had given age of Angoor Khan as 14 years proximately. He deferred opinion if sodomy had been committed to await report of Chemical Examiner. He did not notice any injury or lacerations or abrasions on the hips or in the inner or outsides of legs of the victim. In reply he stated that a clear finding about the commission of sodomy is given in cases where laceration, abrasion or injury is found in or around the anus. He stated that in case lubricant was not used there would not be laceration because anus is quite a dilateable organ but there may be redness. He handed over the swabs to the pouce on second February, 1986 and had kept it himself for about 15 days in a cupboard of the hospital in his custody duly sealed in a bottle. He did not think it proper to send these swabs directly to the Chemical Examiner and did not send any written communication to the Medical Superintendent or police about the swabs. He stated that injury No.2 was possible from fall and can be caused by a friction.

At the trial, prosecution examined 8 witnesses in all Dr. Muhammad Ayub (P.W.1) proved his medico-legal report. Dr. Ijaz Mansoor (P.W.5) deposed that he medically examined the appellants and found them potent. Atta Muhammad (P.W.6) Foot Constable, took the sealed parcel and delivered it in the office of Chemical Examiner. Sher Muhammad (P.W.7) Head Constable, had kept the parcel in the Malkhana and had also formally registered the F.I.R. Karam Hussain Shah (P.W.8) S.H.0. investigated the case and challaned the appellants in Court. Angoor Khan (P.W.2), victim, narrated the facts stated by him in the first information report. The eye-witnesses, Fateh Khan (P.W.3) and Khan Bahadar (P W.4), corroborated him. The report of Chemical Examiner disclosed that rectal swabs were stained with semen.

6. The appellants pleaded not guilty to the charges. They denied the allegations against them They appeared as their own witnesses and stated on solemn affirmation that they were innocent and had been falsely involved. When examined under section 342, Cr.P.C, the appellants stated that they were related to each other and their families had murder enmity with family of Angoor Khan who had deposed against them under influence of his father, Shahbaz Khan.

7. On behalf of the appellants it was submitted that there was delay in lodging of the first information report which was fatal in the present circumstances; that ocular evidence was in conflict with medical evidence and that report of Chemical Examiner did not advance prosecution case as parentage of victim whose swabs were taken was not correctly given and it was doubtful that the sealed parcels remained in safe custody. It was further submitted that defence plea was plausible and enmity between the parties was admitted. It was also submitted that the appellants were young men of 14 years age except Rab Nawaz who was 18 years old and their sentences were liable to be reduced to rigorous imprisonment for two years. It was argued that no case of kidnapping or abduction against Sher Abbas Khan was made out on the evidence.

8. We were taken through the evidence in this case which has been perused and considered by us. Angoor Khan, victim and the appellants lived in the same village. The house of Sher Abbas. Khan was opposite to the house of Angoor Khan and they were class-fellows being the students of 9th class in the same school. According to the prosecution Sher Abbas Khan appellant took away Angoor Khan on the pretext of urinating and the other two appellants joined them. It is in evidence that Angoor Khan was taken to approximate distance of 50 karams which was not far away. The only intention of Sher Abbas Khan could be to commit unnatural offence and there is no evidence on record for coming to the conclusion that kidnapping or abduction was intended. In the circumstances of the present case we are of the view that no offence under section 12 of the Ordinance is made out against Sher Abbas Khan.

9. The three appellants allegedly committed unnatural offence with Angoor Khan as deposed by Angoor Khan. Fateh Khan and Khan Bahadar P.Ws. claimed to have witnessed the three appellants committing sodomy with Angoor Khan one after the other from a distance of 25 karams. They kept on watching the appellants and did not raise finger till all the three of them had completed the offence. This is against the human conduct. The distance from which they claimed to have watched the appellants committing sodomy was not such that they could not reach in time to restrain the remaining two appellants, Sher Abbas Khan and Abaid Ullah Khan, from committing sodomy with Angoor Khan Khan Bahadar, P.W. was related to Angoor Khan being son of his paternal-aunt. It was all the more necessary for him to rescue Angoor Khan immediately instead of watching the three appellants to subject Angoor Khan, to sodomy. It appears that Khan Bahadar and Fateh Khan were not available to see the occurrence or they exaggerated to depose that they saw all the three appellants committing sodomy with Angoor Khan from a distance and did not disturb them. Their testimony is not worthy of credence and is ruled out of consideration. Angoor Khan, victim, was a young boy. The enmity between the father of the victim and families of the appellants was not disputed. The victim was under influence of his father. His testimony cannot be made basis for upholding conviction of the appellants without independent corroboration which is not forthcoming. It is belied by the medical evidence which did not disclose any injury around the anus or in the anal canal although he had been subjected to sodomy by three persons. The anal and rectal mucosa of the victim were found healthy and normal by the doctor. . There is no evidence that any lubrication was used and the absence of laceration inside the anal canal belies the testimony of Angoor Khan. The ocular evidence cannot be relied upon against the appellants.

10. The delay in lodging the first information report was availed of for deliberation and consultation. It is fatal in the circumstances of the present case. The occurrence took place on 16-1-1985 at 6-00 L p.m. and the first information report was lodged at the police station on 19-1-1986 at 10 a.m. although Police Station was 8 miles away from the spot. In case of this nature delay of two days has been held to be fatal for the prosecution.

11. On the evidence we find that prosecution failed to prove the guilt of appellants beyond reasonable doubt and appellants are entitled to benefit of doubt.

12. For the aforementioned reasons the appeal is allowed, convictions and sentences of the appellants are set aside and they are acquitted of the charges.

S.A./363/F.Sh. Appeal accepted.

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