Trile 377 PPC
From : Complenent
2013 P Cr. L J 800
[Peshawar
Before Assadullah Khan Chamkani, J
HAZRAT BILAL---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.56 of 2012, decided on 15th October, 2012.
(a) Penal Code (XLV of 1860)---
----S.
377--- Juvenile Justice System
Ordinance (XXII of
2000), S.11(a)---Unnatural offence (sodomy)---Appreciation of
evidence---Sodomy committed in a mosque---Heinous and gruesome act---Release of
juvenile on probation---Scope---Accused (juvenile) was alleged to have committed
sodomy with his victim in a mosque---Trial Court convicted the accused under
S.377, P.P.C. and sentenced him to seven years' R.I.---Validity---Four hours
delay in lodging of report had been reasonably explained by the complainant
(victim), who stated in his report that on arrival to his house, he narrated
the incident to his mother, who in turn informed his uncle, therefore, delay in
lodging F.I.R. was not exceptional---Fact that victim, who was a boy aged about
7 to 8 years, could make out a false case to involve the accused or he could substitute the accused for someone
else, was not believable---Victim did not carry any ill-will, grudge or malice
against the accused to falsely implicate him in the case---Complainant (victim)
had fully implicated the accused for commission of the unnatural
offence---Version of complainant (victim) was further corroborated by medical
evidence---Doctor had noted bleeding from the anus of the victim and confirmed
that he was sodomized---Doctor had also testified that accused was able to
perform sexual acts---Although under S.11(a) of Juvenile Justice System
Ordinance, 2000, court had discretion to release a juvenile on probation but in the present case
accused-juvenile had committed sodomy in a mosque, which was heinous,
scandalous, gruesome and brutal and release of accused on probation would give
the public an impression that there was no law to restrain people from
commission of such like offences---Conviction and sentence of accused under
S.377, P.P.C. was maintained,
however fine of Rs.
5,000 was also imposed on him along with the direction to send him to a borstal
institution until he attained the age of eighteen or for the period of
imprisonment, whichever was earlier---Appeal was dismissed accordingly.
(b) Criminal trial---
----Delay in lodging of
report/F.I.R.---Conviction---Effect---Delay in lodging report was not fatal to
the prosecution, especially when identity of accused was not doubted and other
sufficient evidence on record established guilt of accused.
(c) Penal Code (XLV of 1860)---
----S. 377---Unnatural offence---Solitary statement of
victim---Conviction--- Scope--- Conviction
could be based
on solitary statement of
victim provided same was
capable of being
relied upon and was corroborated by medical as well as circumstantial
evidence.
Mst. Nasreen v.
Fayyaz Khan and another PLD 1991 SC 412 and
Rana Shabaz Ahmad
and 2 others
v. The State
2002 SCMR 303 rel.
Fayaz Muhammad Qazi for Appellant.
Akhtar Munir Khan for the Complainant.
Ikram Ullah Khan
A.A.-G. for the State.
Date of hearing:
15th October, 2012.
JUDGMENT
ASSADULLAH KHAN
CHAMKANI, J.---Impugned herein is the judgment dated 16-3-2012 passed by
learned Additional Sessions Judge/Izafi Zila Qazi, Matta, whereby Hazrat Bilal
, the appellant, involved in case F.I.R. No.131 dated 22-6-2011 under section
377, P.P.C. read with section 12 of the Offences of Zina (Enforcement of
Hadood) Ordinance, 1979 registered at Police Station Kalakot Matta, was convicted
under section 377,
P.P.C. and sentenced
to undergo seven years,
however, benefit of
section 382-B, Cr.P.C. was extended to him.
2. Facts of
the case are
that complainant Daud
aged about eight (8) years lodged
a report that on 22-6-2011 he had gone to Madrasa of "Masjid Sadiq"
on that day Qari Sajid Ullah was not present, therefore, Monitor Bilal son of
Muhammad Basheer at 1600 hours permitted the other boys to go back, however, he
was directed to stay here. When the other boys got out from the Madrasa, Hazrat
Bilal forcibly took off his trousers and committed sodomy upon him. After the
commission of offence, the accused directed him not to disclose the event to
anyone. Thereafter, he came to his house and narrated the occurrence to his
mother and she informed his uncle. The report of complainant was reduced into
writing in shape of F.I.R. Exh.PA, which the complainant signed as token of its
correctness while Muhammad Usman, the uncle of complainant, signed the same as
its rider.
3. After completion of
the investigation, challan was submitted in the Court for trial. Since, the
accused was declared as Juvenile Offender, therefore, his case was tried by the
Judge, Juvenile Court, constituted under the Juvenile Justice System Ordinance,
2000. Learned trial Court, after conclusion of the trial and hearing the
arguments of parties, convicted the present appellant as stated above.
Learned counsel for the
appellant-convict argued that the judgment of learned trial Court is against
law and facts which is the result of misappreciation of evidence on record. He
argued that there is four hours delay in lodging of report, therefore, the
question of deliberation and consultation cannot be ruled out. He argued that
the evidence furnished by the complainant as P.W.2 is not in consonance with
the other P.Ws. and is full of contradictions. He argued that the trial Court
has totally ignored the factum of age of the appellant and also the provisions
of Juvenile Justice System Ordinance, 2000 as in case of conviction it was
required for the trial Court to have sent the appellant to Borstal House or
otherwise to release him on probation. He argued that the prosecution has
miserably failed to prove its case against the appellant-convict, therefore,
the sentence is liable to be set aside and the appellant/convict deserves
acquittal.
Learned A.A.-G.
appearing on behalf of the State and learned counsel for complainant argued
that the appellant is directly charged by the complainant-cum-victim in the
F.I.R. for committing sodomy upon him. He argued that the victim is aged about
7/8 years and his statement is cogent, consistent and convincing and in spite
of lengthy cross-examination it could not be shattered, therefore, his
statement alone is sufficient for conviction of the accused. He contended that
the prosecution evidence is fully corroborated by the statement of doctor and
the report of Chemical Examiner. He finally submitted that the accused
committed sodomy with the victim in sanctified place, i.e., mosque and the
defence failed to prove any enmity between the accused and the complainant,
therefore, the sentence awarded to the accused by the trial Court may be
maintained.
4. Arguments of learned
counsel for the parties were heard and record of the case perused.
5. No doubt, there is
delay in lodging of the report for about four hours but the same has reasonably
been explained. The complainant stated in his report that on arrival to his
house, he narrated the happening to his mother, thereafter, his mother informed
his uncle, therefore, delay, if any, in lodging of F.I.R. is not exceptional in
our society as the people avoid the
glare of undesired publicity and
the parents in such
like cases feel their
disgrace and humiliation
to which they were
put to by the
accused, therefore, delay
of four hours in making
the F.I.R. is not
fatal to
the prosecution case in
such like cases specially when the
identity of appellant-convict is
not doubted and other sufficient evidence on the record which established the
guilt of convict-appellant.
6. The charge levelled
against the appellant is of very grave in nature as the complainant-victim, a
boy of 7/8 years caught hold by him and committed sodomy upon him in and that
too, in the place of worship. A careful examination of the statement of victim
Muhammad Dawood shows that he has narrated the occurrence in detail. It is
consistent and rational and it is unbelievable that a boy of 7/8 years could
make out a false case to involve the appellant or that he could substitute the
accused for someone else. The complainant has fully implicated the accused for
commission of unnatural offence with him. The version of complainant has
further been corroborated by the medical evidence. Dr. Hadayat Ullah when
appeared as P.W.7 fully supported the version of the complainant and confirmed
his report marked as Exh.P.W.7/1. He stated that he examined the victim minor
Dawood aged about eight (8) years brought to him by Constable Zahid Ullah. He
further noted bleeding from anus of the victim and confirmed that the victim
was sodomized. P.W.1 Dr. Manzoor has
testified that accused is adult and able for sexual act.
7. It is undisputed
that the victim of the occurrence namely Muhammad Dawood at the time of occurrence
was aged about 7/8 years, who did not carry any ill-will, grudge or malice
against the appellant to falsely implicate him in the case. The accused has
committed sodomy upon the minor in the mosque. The medical Officer admittedly
was an independent person has no reason to give false statement favouring the
victim. Penetration has been proved as the Medical Officer found bleeding from
the anus of the victim at the time of examination. The complainant (P.W.2) and
the Medical Officer (7) were subjected to lengthy cross-examination by the
learned defence counsel but nothing damaging aspect was extracted from their
mouth. The statement of the victim is reliable and trustworthy arid cannot be
discredited in any manner whatsoever while the contradictions pointed out by
the learned counsel for the appellant would not make the whole case
unbelievable rather it could very easily be ignored.
8. The contradictions
referred to by the learned counsel for the appellant are not fatal to the case
of the prosecution being minor on all the important issues and facts,
particularly, when no enmity was shown between the parties and the statement of
complainant was fully supported by the evidence of Medical Officers,
Investigating Officer and positive report of FSL. In such like cases,
conviction could be based on the solitary statement of the victim provided the
same is capable to reliance and is corroborated by medical as well as
circumstantial evidence. Reliance in this regard is placed, on the cases of
Mst. Nasreen v. Fayyaz Khan and another PLD 1991 412 and Rana Shabaz Ahmad and
2 others v. The State 2002 SCMR 303 wherein it has been held that the sole
testimony of victim is enough for conviction if it is truthful and inspires
confidence.
9. So far as the
argument of learned counsel for non-releasing the appellant on probation by the
trial Court is concerned, no doubt, under section 11(a) of the Juvenile Justice
System Ordinance the Court has discretionary powers to release on probation a
child found to have committed the offence but his request is not convincing one
because as per evidence the accused has committed sodomy in the holy place.
Malakand Division is special area and the people over there always strive hard
for implemtation of Sharia laws. The appellant has committed the offence in the
holy mosque which is heinous, scandalous gruesome, brutal and the punishment is
one of the modes to give an impression of deterrence to the public at large and
release of appellant on probation in such like cases would certainly give an
impression that no law is there to restrain people from the commission of such
like offences. We have to curb such like offences otherwise it would definitely
affect the whole society. However, it is ordered that the appellant-convict be
sent to a Borstal institution until he attains the age of eighteen years or for
the period of imprisonment whichever is earlier.
10. As
a sequel to above discussion, I am of the firm view that the impugned judgment
does not warrant any interference, which is maintained. The punishment provided
for section 377, P.P.C. shall be imprisonment for life, or with imprisonment of
either description for a term which shall not be less than two years nor more
than ten years and shall also be liable to fine. Since, the trial Court has
only convicted and sentenced the appellant under section 377, P.P.C. for seven
years imprisonment and not imposed fine, which is mandatory, therefore, the
accused is also
fine to Rs.5,000,
which shall be
paid to the
victim and in case of non-payment of fine he shall further undergo SI
for six months.
This appeal is dismissed
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