Find a Lawyer

Criminal Appeal No. 116/I of 1986, decided on 2nd July, 1986.

‑‑‑S. 377‑‑Evidence, appreciation of‑‑F.I. R. lodged without delay on the very day of incident‑‑Accused caught at spot by prosecution witnesses having no motive to falsely implicate him and produced before Police‑‑Story given by victim of sodomy also supported by medical evidence and Chemical Examiner's report‑‑Conviction maintained, in circumstances.

‑‑‑S. 377‑‑Sentence, reduction in‑‑Accused a young lad of 18 years‑ Sentence of 5 years' R.I. reduced to 3 years' R.I. in circumstance. [Age‑‑Sentence].

Malik Rab Nawaz Noon for Appellant.

Abdul Shakoor for the Complainant.

Abdul Haq for the State.

Dates of hearing: 18th and 19th June, 1986.

Appellant Muhammad Ikram was tried by Ch. Muhammad Hussain, Additional Sessions Judge, Rawalpindi for offences under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. By his judgment, dated 7‑4‑1986 the learned Judge had acquitted the appellant of offence under section 12 of the said Ordinance but convicted him under section 377, P.P.C. and sentenced him to suffer R.I. for five years and to pay a fine of Rs.1,000 or in default of payment of fine to further undergo S.I. for two months. He was also given the benefit of section 382‑B, Cr.P.C.

2. The allegations against the appellant was that on 24‑7‑1985 he had persuaded P.W. 2 Waqas, a boy aged about 12 years to accompany to his house and there subjected him forcibly to carnal intercourse against the order of nature. The boy came home weeping and informed his father Abdul Qavi Anjum (P.W. 1) of the incident. The later took him to Police Station, Banni, District Rawalpindi on the same day and lodged the report of the incident. The F.I.R. was recorded by Mr. Zafar Mahmood (P.W. 9) S.I. Police Station Banni. He had sent Waqas for medical examination to General Hospital, Rawalpindi. P.W. 5 Dr. Shahzad Aziz had examined him as a result of which he was of the opinion that the boy was subjected to unnatural offence. This opinion was supported by chemical report in respect of the rectal swabs which were sent to the Chemical Examiner for detecting semen. The report of the Chemical Examiner was positive.

3. The appellant was also arrested and sent for medical examination. The same doctor had examined the appellant and found him fit to commit sexual act.

4. In support of the prosecution nine witnesses have been examined. P.W. 1, Abdul Qavi Anjum, P.W. 2 Waqas, P.W. 3 Zafar Iqbal, P.W. 4 Feroze Khan, A.S.I., P.W. 5 Dr. Shahzad Aziz, P.W. 6 Muhammad Asjid, F.C., P.W. 7 Muhammad Bashir, F.C., P.W. 8 Abdul Waheed and P. W. 9 Zafar Mahmood, S.I.

5. The plea of the appellant before the trial Court was that he had advanced a loan of Rs.7,000 to Tahir Iqbal, the brother of P.W. Zafar Iqbal ,and that there was dispute between him and Tahir Iqbal over refund of the amount. Hence he (appellant) has been involved in this case at the instance of Tahir Iqbal who is related to complainant Abdul Qavi Anjum (P.W. 1) and his son Waqas, the alleged victim, of this crime.

6. The main evidence in this case is of P.W. 2 Waqas. It is not disputed that the age given by him as 12 years is correct. He has deposed that on the day of incident he was going to offer 'Asar' prayer, when the appellant met him and told him that his younger brother has brought some toys which he wanted to dispose of. The appellant took Waqas to his room to show the toys. He further deposed that when he reached the room of the appellant, the later bolted the door from inside and started kissing him and forcibly subjected him to sodomy. He wanted to raise alarm but the appellant shut his mouth with his hand. After the incident he came out from the room weeping and met Tahir Iqbal (not examined) and Abdul Waheed. (P.W. 8) Tahir Iqbal is maternal‑uncle of the witness. He narrated the incident to both of them who took him to the room of the accused. They found the appellant locking his room but he was caught and taken to the police station alongwith the witness. Father of the witness namely Abdul Qavi Anjum was also called to the police station where the witness lodged the report the same night at about 10‑30 p.m. He was also examined by the doctor on the same night at about 11‑45 p.m.

7. The boy was subjected to lengthy cross‑examination but nothing was extracted to indicate that he was a false witness or was implicating the appellant due to any ulterior motive. It was suggested to him that his uncle Tahir Iqbal (brother of P.W. 3 Zafar Iqbal) had taken a loan of Rs.7,000 from him for business and that there was quarrel between the appellant and Tahir Iqbal over refund of the said amount. The complainant replied in the negative in the following words.‑‑

"It is incorrect to suggest that Tahir Iqbal P.W. took Rs.7,000 for business two months prior to the occurrence from the accused. It is incorrect to suggest that the accused used to come to demand the said amount while he coming to our house. It is incorrect to suggest that two days prior to the occurrence the accused and his father gave beating to Tahir Iqbal P.W. and Waheed and Muhammad Irshad separated them on account of this money."

8. P.W. 1 Abdul Qavi Anjum is father of the complainant and has supported the version of his son Waqas that soon after the incident he had received information that the appellant had subjected his son Waqas to sodomy by the appellant who had been caught by Tahir Iqbal and Waheed. He had reached the spot and joined Tahir and Waheed in taking away the appellant to the police station where report of his son Waqas was recorded. He has also denied that there was any dispute between Tahir and the appellant over loan of Rs.7,000.

9. P.W. 3 Zafar Iqbal is maternal‑uncle of Waqas complainant. He was recovery witness in respect of underwear of Waqas which was sealed into a parcel by the Investigating Officer and sent to the Chemical Examiner to examine the stains thereon. The report of the Chemical Examiner was that this underwear was stained with semen (vide report Exh. PK). It may be noted that this witness is brother of Tahir Iqbal but no question has been put to him regarding dispute between Tahir Iqbal and the appellant over re‑payment of loan of Rs.7,000. The witness has admitted that he is real maternal‑uncle of the complainant.

10. P.W. 4 Feroze Khan, A.S.I. had received the four sealed parcels on 25‑7‑1985 from Zafar Mahmood S.I. for keeping the same in the Malkhana. These parcels included the underwear of the complainant and rectal swabs. On 31‑7‑1985 he had handed over these parcels to Muhammad Bashir F.C. for transmission to the Chemical Examiner, Rawalpindi.

11. P.W. 5 Dr. Shahzad Aziz has deposed that on 24‑7‑1985 at 11‑00 p.m. on the same day of the incident he had medically examined Waqas aged about 12 years and found as under:‑‑

"No. 1. Bruise left cheek 2 c.m. x 2 c.m.

No. 2. Abrasion on right cheek 2 c.m. x 1 c.m.

No. 3. Brusing around anus.

No. 4. Tear lower margin 1 c.m. x 5 c.m.

No. 5. Tear on upper margin 1 c.m. x 5 c.m."

He had taken two rectal swabs sealed and sent the same to the Chemical Examiner for examination. He was of the opinion that the boy Waqas had been subjected to unnatural offence and that the report in respect of rectal swabs also supported him. This report has been tendered in evidence as Exh. P.L. On the same day he had also examined the appellant and found him fit to commit sexual intercourse.

11‑A. P. W. 6 Muhammad Asjid F. C. was posted at Police Station Banni, Rawalpindi on 24‑7‑1985. He had taken appellant Muhammad Ikram to Medical Officer for examination. He had also received sealed parcels in respect of Shalwar and shirt of the appellant which he had handed over to the Investigating Officer.

12. P. W. 7 Muhammad Bashir F. C. had taken Waqas complainant to Rawalpindi General Hospital, Rawalpindi for medical examination. He had also received a sealed parcel in respect of rectal swabs which he had handed over to the Investigating Officer.

13. P. W. 8 Abdul Waheed has supported the complainant to the extent that soon after the incident the complainant had come weeping to his house where he was sitting and Tahir (not examined) and told that the appellant had forcibly subjected him to unnatural carnal intercourse. He has deposed that he and Tahir had gone to the house of the appellant and took him to the police station and that father of Waqas had also joined them in the meantime. This witness is independent and not related either to the complainant or to Tahir Iqbal with whom the appellant has alleged enmity over loan of Rs.7,000.

14. P.W. 9 Zafar Mahmood S.I. is the Investigating Officer in this case who had recorded the F.I.R. of the complainant on the very day of the incident. He also arrested the appellant who was produced before him by P. W. Abdul Waheed and other and sent him and the complainant for medical examination. He has investigated the case and sent up the appellant for trial. In cross‑examination he has denied that it came to his knowledge that Tahir Iqbal had taken any loan from the appellant of Rs.7,000 or that there was any dispute between the appellant and Tahir over re‑payment of the money.

15. In his statement under section 342, Cr.P.C. the appellant has denied having subjected the complainant to unnatural offence. In reply to a question as to why the witnesses have deposed against him, his reply as under:‑‑

"Waqas P. W. and his maternal‑uncle Tahir Iqbal used to play ceram board with me in Malik Hotel at Bhabra Bazar, Rawalpindi. Two months prior to the occurrence Tahir Iqbal who is the real maternal‑uncle of the victim and also residing with them, borrowed Rs.7,000 from me and promised me to return the money within 15 days. I went number of times in the house of Waqas P.W. for demanding the money from Tahir Iqbal but he was adjourning the matter on one pretext or the other. Ultimately I went to his house alongwith my father and strongly demanded my money. An altercation took place between us on account of this money. I gave beating to Tahir Iqbal P.W. alongwith my father. Irshad and Waheed were present at the relevant time who separated us and resolved the controversy for time being. Tahir Iqbal P.W. gave threats to us in presence of these witnesses that he will redress his grievance properly. Tahir Iqbal in order to redress his grievance and in order to usurp my money the present false case got registered against me. I am absolutely innocent. Not a single independent witness appeared against me. The prosecution story is that occurrence took place in a busiest building situated in thickly populated area and they could not produce a single witness even to prove any circumstance leading toward this occurrence. The I.O. has categorically stated that none from the vicinity supported the false version of the prosecution. The prosecution evidence is materially discrepant and this fact alone shows that they were not present at the time of alleged occurrence."

The appellant has also produced D.W. 1 Irshad and D.W. 2 Waheed Ahmad in support of the above defence plea.

16. It may be stated that at the very outset that the appellant himself is a boy of 20 years working as Stenographer in a civil Court. Hence it is unbelievable that he was in a position to advance a loan of Rs.7,000 to P.W. Tahir the maternal‑uncle of the complainant. The defence plea should be rejected outright for the above reason.

17. The F.I.R. of the case was lodged without any delay on the very day of the incident at about 6‑15 p.m. The incident had taken place at 6‑00 p.m. on 24‑7‑1985. The distance between the house of the complainant and police station was about 2 kilometres. The delay of three hours is immaterial. The appellant was caught at the spot by P. W. Abdul Waheed and Tahir Iqbal and produced before the police on the very day of the incident. We have no reason to disbelieve complainant Waqas who had given the evidence in a straightforward manner. He is supported by Abdul Waheed P.W. 8 who was informed about the incident' soon after it had taken place. Waheed and Tahir had caught the appellant at the spot and produced him before the police. Neither Waheed nor Waqas had any motive to implicate the appellant in a false case. We have, therefore, no reason to disbelieve either of the above witnesses.

18. The story given by the complainant is supported by P.W. 5 Dr. Shahzad Aziz who had examined both the victim and the appellant the same night between 11‑12 p. m. and found that the complainant was subjected to carnel intercourse against the order of nature. We have no reason to take exception to the finding of conviction under section 377 , P . P. C . recorded by the learned trial Court.

19. However, so far as the sentence is concerned, the appellant is' a young lad of 18 years. The sentence of imprisonment is, therefore reduced to two years, but he shall pay fine of Rs.5,000 or in default of payment of fine, he shall undergo R.I. for six months. Out of the amount of fine, if realised, rupees three thousand shall be paid to the complainant as compensation. The appellant shall get benefit of section, 382‑B, Cr.P.C.

S. G. D./314/F Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.