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Criminal Appeal No. 139/L of 1986, decided on 13th November, 1986.

‑‑‑S. 377‑‑Ocular testimony, appreciation of‑‑Application made to Superintendent Police of relevant District by victim after four days of occurrence‑‑Date and place of occurrence not mentioned in application‑ Details of occurrence not given‑‑Victim attempting to fill in gaps and exaggerating incident at trial‑‑Omissions and improvements duly confronted with his previous statement‑‑Victim grown up boy having read up to 7th Class attempting to escape from clutches of accused‑ Accused taking him from his house to different places in village in search of proper place‑‑Many people collecting at spot on hearing cries of victim yet only persons opposed to accused produced as witnesses‑ Accused married person having 2/3 children‑‑Delay in reporting matter not satisfactorily explained‑‑Reasonable conclusion that could be drawn by reading evidence, held, would be that story was unbelievable and victim was not truthful witness who acted as tool in hands of opponents of accused.

---‑‑S. 222‑‑Penal Code (XLV of 1860), S. 377‑‑Charge vague and not mentioning place and time of occurrence‑‑Date of occurrence mentioned in charge, different from given by witnesses‑‑Charge, held offended against provisions of S. 222, Cr.P.C. and stood not proved thus accused was entitled to acquittal.

Sh. Naweed Shahryar for Appellant.

Bashir Ahmad Baig for the State.

Date of hearing: 13th November, 1986.

.‑‑This is an appeal against the order of conviction passed, on 22‑4‑1986 by the Additional Sessions Judge, Gujrat whereby the appellant Ghulam Abbas son of Mirza has been convicted under section 377, P.P.C. and sentenced to two years R.I and a fine of Rs.1,000 or in default to undergo S.I. for three months.

2. One Safdar Iqbal son of Muhammad Salah, Barber resident of village Murala, Tehsil Phalia approached the Superintendent of Police, Gujrat and presented an application, dated 2‑10‑1983 wherein it was alleged that the appellant Ghulam Abbas had committed sodomy with him. The incident was witnessed by Mazhar Hussain son of Muhammad Khalif and Atta Muhammad son of Ghulam Muhammad, It was alleged that S.H.O. Thana Phalia was avoiding to register the case. The application did not give any date and place of occurrence. It was however, forwarded by the S.P. Gujrat and the F.I.R. was formally recorded, on 4‑10‑1983 by Muhammad Nawaz (P.W, 2). Safdar Iqbal was examined, on 4‑10‑1983 at 7‑00 p.m. by Dr. Nazir Ahmad Anwar (P.W. 6) at Civil Hospital, Phalia and the following observations were' recorded in the report Exh. P.B.‑‑

"A linear tear 1/2 c.m. x 1/6 c.m. over the posterior part of the anus.

Two rectal swabs were taken and sent to the Chemical Examiner, Lahore alongwith Shalwar with suspected semen stains, both sealed, for detection of semen."

The sealed parcel was received by P.W. 2 (Muhammad Nawaz) and later sent through P.W. 1 (Nazir Baig) to the Chemical Examiner, on 30‑10‑1983. The rectal swabs were found not stained with semen (as per report Exh. P.C. by the Chemical Examiner). Safder Iqbal had also produced a Shalwar (not before the police authorities) but before the doctor (P.W. 6) this Shalwar was also sealed by the doctor and later sent to the Chemical Examiner through P.W. 1 (Nazir Baig) F. C, and it was found stained with semen. After completion of the formalities the challan was put up before the trial Court.

3. The charge read over to the accused was in these words:‑‑

"That you on 2‑10‑1983 in village Murala Police Station, Phalia committed carnal intercourse against the order of nature with Safdar Iqbal complainant boy and thereby you committed an offence punishable under section 377, P.P.C. within my cognizance."

The charge is vague on the face of it as it does not specify the place (house) and time where and when it was allegedly committed and offends against the provision of law contained in section 222, Cr.P.C. The charge was denied by the accused/ appellant and the prosecution examined as many as seven witnesses. Besides the persons mentioned above Atta Muhammad (P.W. 4) and Mazhar Hussain (P.W. 5) were examined.

4. The accused in his statement recorded under section 342, Cr.P.C. denied the allegations and said that he was implicated falsely and the P.Ws. have depose due to enmity. The case of the accused as put in the cross‑examination to the prosecution witnesses was that P.W. 5 (Mazhar Hussain) was instrumental in involving the accused as father of Mazhar was removed from the office of the Chairman of the District Council on the no‑confidence motion moved by Ghulam Qadir (D.W. 1) (the real brother of the appellant) and P.W. 4 (Atta Muhammad) was a friend of Mazhar Hussain (P.W. 5) and no incident as alleged had happened on the day alleged by the P.W. 3 (Safdar Iqbal). The fact that the father of Mazhar Hussain was removed from the office is admitted by Mazhar Hussain also in cross‑examination and Atta Muhammad (P.W. 4) has also admitted that he is a friend of Mazhar Hussain.

3. Before we discuss the evidence produced by the prosecution it is pertinent to point out that no prosecution witness at the trial stated that the alleged incident had taken place on 2‑10‑1983 (As mentioned in the charge‑sheet) and P.W. 3 (Safdar Iqbal) P.W. 4 (Atta Muhammad) and P.W. 5 (Mazhar Hussain) assert that the incident had taken place on 28‑9‑1983. Thus, the charge stands not proved and the accused/ appellant is entitled to acquittal on this short ground alone. But since we have gone through the entire evidence recorded in the case and we are inclined to agree with the defence version that no incident as alleged by the star witness P.W. 3 (Safder Iqbal) has happened. The evidence on record is being analysed.

4. P.W. 3 (Safdar Iqbal) the alleged victim did not give the details of the incidents and did not mention the date and place of the occurrence in the F.I.R. But at the trial not only attempted to fill in the gaps but has exaggerated the incident in such way which not only renders the story unbelievable and it can be safely said that he is not truthful witness and has acted as a tool in the hands of the political opponents of the accused and his family. Safder Iqbal in his deposition came out with an improved story and said that on 28‑9‑1983 at evening time at about 6‑00 p.m. he was present in his house in village Murala. The accused Ghulam Abbas came and took him to his Baithak. He closed the door and threatened him with knife, then he felled him on a cot and started committing sodomy with him. He raised alarm and the accused tried to appease him by giving Rs.50 note. Ata Muhammad and Mazhar Hussain came to the spot. Ata Muhammad gave a push to the window, which was opened. They saw the occurrence. The witness was confronted with his previous statement and the omissions and improvements stand proved. In the cross‑examination, he stated further that when accused had come to his house, his brother Aurangzeb and parents were also present, further said "after exit from the house the accused went to the house of Barkat Arain, he went to the house of Nazir Musali. He came with the accused in that house and we went to the house of Dhobi. Then the accused took me to the house of a Muhajir. Then he took me to his Baithak" . Safder Iqbal is a grown up boy of more than 16 years of age and has read upto 7th class. He was being taken by the accused to different places who was in search of a place where he could satisfy his lust with him. He could easily smell the designs of the accused. There was an open place also near the house of the accused. Safder Iqbal could easily escape from the clutches of the accused having sensed the evil designs of the accused if he wanted. The conduct of this witness speaks for itself. The minimum that can be said is that he has been a passive agent and knew fully well that he might be the victim and unnatural carnal intercourse may be committed still he did not make any attempt to avoid it. In the cross‑examination it has been further stated by him that he had 'put on his Shalwar while being present in the street.' He abused the accused while standing in the street and so many people did come there. The P.Ws. and other persons had abused the accused while peeping through the window. Many persons came on hearing the abuses. People had started coming on hearing my cries. Yet none except the persons opposed to the accused were required to testify about the occurrence. It has been also brought on record through this very witness that accused is a married person having 2/3 children and his other two married brothers also resided in the same house. It stands to reason that in such a situation it would have been foolish on the part of the accused to take the victim to the house which was over crowded already and no space in the same could be expected to be available for an act which requires isolation and has not been tolerated in the society by the members of the family consisting of women folks and elders. The unresistable conclusion that can be drawn by reading the evidence is that Safder Iqbal is not a truthful witnesses.

5. There is yet another aspect of the case which assumes importance. It is the delay in approaching the authorities for redress. The occurrence took place allegedly, on 28‑9‑1983 yet it was not reported till 2‑10‑1983, except the allegations contained in the application made to the Superintendent of Police, no proof has been furnished. It stands to reason that this delay has been exploited by Mazhar Hussain to cause humiliation to the accused and Safder Iqbal has acted as a tool. The conduct of the alleged victim does not appeal to reason and the allegations appear false on the fact of it. He did not spare even P.W. 6 against whom it was alleged that he did not examine him before an ‑allegation promptly denied by the P.W. 6 (Dr. Nazir Ahmad Anwar). The incorrectness of the allegations against police stands established by the admission of Safder Iqbal in these words 'I did not state this fact before the police I did not make any complaint to D.S.P.' We are, therefore, constrained to hold that the delay in setting the police in motion is not satisfactorily explained. Courts have always viewed the first information with suspicion where there has been unexplained delay in giving it.

6. For the above reasons, it is not possible to maintain the conviction recorded against the appellant. The appeal has to be accepted. We accordingly set aside the conviction and sentences passed against the accused/ appellant Ghulam Abbas and exonerate him of the charge. He is on bail. His bail bond shall stand discharged.

S.A. Appeal accepted.

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