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Criminal Revision No. 15/l of 1986, decided on 15th April, 1987.

‑‑‑S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Ocular evidence, appreciation of‑‑Accused not previously known to complainant‑‑No marks of identification given in F.I.R.‑‑F.I.R. delayed by 19 hours‑ Names of accused given at instance of hotel owner, not produced at trial‑ No identification parade held‑‑Testimony of complainant (victim of offence) contradictory and discrepant‑‑Medical evidence not proved by producing doctor who made report‑‑Medical certificate even otherwise not disclosing any injury on person of victim to prove sodomy‑‑ Prosecution case, held, was doubtful and accused were not connected with offence‑ ‑Acquittal upheld in circumstances.

‑‑S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Evidence, admissibility of‑‑ Non‑availability of doctor not proved‑‑No witness entrusted with summons of doctor, examined at trial‑‑Medical evidence was rendered inadmissible in evidence.‑‑[Evidence].

‑‑‑Art. 203‑DD‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑ Penal Code (XLV of 1860), S. 377‑‑Revisional jurisdiction of Federal Shariat Court‑ ‑Revisional jurisdiction, held, would not be exercised in interfering with acquittal unless judgment would lead to injustice‑‑Court would not interfere even if different conclusion could be possible.

Sh. Zamir Hussain for Petitioner.

Malik Rab Nawaz Noon for Respondents.

Khan Mushtaq Ahmad Khan for the State.

Date of hearing: 15th April, 1987.

‑‑This revision by the first informant is directed against the acquittal of respondents, Muhammad Saleem, Imdad Hussain and Hafeez‑ur‑Rehman, under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. passed by the Additional Sessions Judge, Rawalpindi, on 28‑1‑1987.

2. Muhammad Shah, first informant, resident of village Chakri, District Rawalpindi, came from his village to Rawalpindi City, on 10‑ 4‑ 1985. On 11‑4‑1985 at about 7 p.m., he went to see Mistree Abdul Hamid in Mohallah Ahmedabad in the area of Dhoke Lukhan but on enquiry was told there that Abdul Hamid had gone to his village Chakri. The first informant was waiting for transport at the hotel but could not get due to late hours and asked the hotel owner to provide him a Charpai and bed for the night who expressed his inability to do so. In the meanwhile three persons reached there and told the first informant that they were friends of Mistree Abdul Hamid and they lived with him, and had been instructed by him to entertain his guest in his absence. These unknown three persons took the first informant to a shop where shuttering goods were stored and provided him a charpai where he slept. At mid‑night time they tried to commit sodomy with the first informant and on his refusal all of them forcibly committed un‑natural offence after binding his hands and legs with rope. The three accused then removed Rs.5,500 from the Jacket of the first informant and went away leaving him outside the shop at the morning time. On enquiry from the owner of the hotel, first informant came to know their names as Hafeez‑ur‑Rehman son of Farid ur‑Rehman, Muhammad Saleem son of Karam Dad and lmdad Hussain son of Eisa Khan employed in the army. Two of them belonged to Hazara and third one was from village Chuntra. On the statement of Muhammad Shah, recorded at the Police Station Saddar Barooni, Rawalpindi, formal first information report eras registered on 12‑4‑1985 at 7‑15 p.m. After investigation respondents were challaned in Court.

3. At the trial prosecution examined seven witnesses including formal witnesses. The occular evidence comprised of first informant, Muhammad Shah (P.W.3) and Mukhtar Hussain (P.W.1) whom the first informant told about the occurrence while Muhammad Bashir (P.W.2) who was similarly told about the occurrence did not support the prosecution case and was declared hostile.

4. The respondents pleaded not guilty to the charges.

Muhammad Saleem stated that he was involved because of his relationship with Hafeez‑ur‑Rehman co‑accused who had dispute of money with the first informant and also for the reason that Juma Khan, P.W., did not pay money due to Muhammad Saleem.

Imdad Hussain stated that he had been implicated at the instance of Mian Khan, a relative of first informant due to election enmity and that he was present in his Unit as he was employed in the army and no night pass or leave pass was issued to him on 11‑4‑1985.

Hafeez‑ur‑Rehman stated that he had been falsely involved because he demanded his money from the first informant. He made the following statement on solemn affirmation:

"Muhammad Shah complainant had visiting terms with Mistree Abdul Hamid for quite a long time. My shop is adjacent to the shop of Mistree Hamid. I knew Muhammad Shah complainant for the last about 1‑1/2 years prior to the occurrence. Since Muhammad Shah complainant used to come to Mistree Hamid, therefore, I got acquintance with him. One year prior to the occurrence Muhammad Shah complainant borrowed Rs.1,500 from me. Muhammad Shah complainant has no business and was jobless. Whenever Muhammad Shah came to Mistree Hamid I demanded my money from him but he had been putting off on one excuse or the other. One week prior to the occurrence I demanded my money back from Muhammad Shah complainant in Ahmedabad. He refused to pay back my money. At this we had a quarrel and I gave him beating. Muhammad Bashir, P.W. intervened between us. Muhammad Shah complainant had not a good moral character. He used to attend the shop of Boota barbar often and used to mix up with the ill‑reputed persons and due to this he was expelled from the Army. My father is Imam Masjid. I fully observe the dictates of God regarding rights of men and rights of Allah and also observe my religious duties including prayers. The case against me is totally false. I am innocent. The case against me has been fabricated due to money dispute and the above said quarrel."

5. The trial Court acquitted the respondents for the reasons that occular evidence was not reliable, accused were not identified and the medical evidence did not support it.

6. We were taken through the evidence in this case which has been read and considered by us.

7. The occular evidence comprised of first informant and Mukhta Hussain. According to Muhammad Shah, the three respondents were no previously known to him yet no identification mark was given by him in the first information report registered at his instance. The names and particulars given to him by the hotel owner did not correspond fully with the respondents. The owner of hotel was not examined by the prosecution. No identification parade was held. Therefore, on the prosecution case itself the respondents were not connected with the offence.

8. It was argued on behalf of the petitioner that there was no improvement at the trial because the first information report is not a detailed document. The absence of particulars of the respondents who were not previously known to the petitioner and failure to hold identification parade made the whole prosecution case doubtful. The occular evidence in particular the testimony of the first informant was contradictory and discrepant. The medical evidence in the case was not proved as the doctor who medically examined the first informant for injury and sodomy was not examined by the prosecution. Learned counsel for the petitioner submitted that it was the duty of the trial Court to summon the doctor and examine him particularly when the medical evidence supported the prosecution story. It was also submitted that Dr. Ishtaq Hussain Shah, P.W., who had medically examined the respondents for potency had deposed at the trial that Dr. Tasleem Ahmad who medically examined the first informant was not available as he had gone to Lahore to attend the post‑graduate course. The prosecution was under obligation to prove non‑‑availability of doctor Tasleem Ahmad who medically examined the first informant and failure in that behalf rendered the medical evidence inadmissible. The prosecution did not examine anyone entrusted with service of summons on Dr. Tasleem Ahmad. Even otherwise the medical evidence did not disclose any injury on the first informant to prove that sodomy had been committed with him. The positive report of Chemical Examiner will not advance case of the prosecution. The first informant was medically examined after 20 hours and must have evacuated during this time. The medical evidence cannot be taken into consideration. There was also delay of 19 hours in lodging of the first information report which appears to have been availed for deliberation.

9. The ocular evidence is discrepant and contradictory which is not corroborated by any independent evidence. This Court will not interfere with acquittal earned by the respondents unless the judgment will lead to injustice which is not the case in hand. This Court will not interfere in revision even if a different conclusion is possible. No ground is made out for interference in revision which is dismissed.

S.A./330/F.Sh.C. Acquittal upheld.

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