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IN THE COURT OF JEHANZEB SHINWARI DISTRICT & SESSIONS JUDGE TANK

Sessions Case No: 33/2 of 2020

Date of institution: 20.03.2020

Date of Decision: 27.11.2020

THE STATE

…VERSUS…

Mehboob S/o Aslam R/o Mohallah Civil Lines, Tehsil & District Tank.

…(Accused in custody)

CHARGED VIDE FIR # 819, DATED 26.10.2019, U/S 377 PPC,

REGISTERED IN POLICE STATION CITY TANK

J U D G M E N T

1. Accused Mehboob S/o Aslam R/o Mohallah Civil Lines, Tehsil &

District Tank faced trial in the case detailed in the subject, in custody.

2. Facts in brief as contained in the FIR are that on 26-10-2019 at 1500

hours complainant Mst. Sultana Bibi, alongwith, her minor son

Usman aged about 8/9 years came to PS City Tank and reported that

on the same day at about Peshi Vela, her son Usman had gone to the

house of their relative Mehboob and came back at about 1320 hours

and informed her that accused Mehboob caught him, took him to the

room of the house, removed his Shalwar and forcibly committed

sodomy with him and when released him, he cleaned himself with

carpet of the said room. It was also disclosed that at that time, there

was no one else in the house except the accused.

3. The report was reduced into writing by Amir Muhammad ASI (PW-1)

and case in hand was established and the victim was forwarded for

medical examination.

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4. The matter was entrusted to Shams-ud-Din, IHC (PW-5) for

investigation. After conclusion of investigation, case in hand was

submitted for trial. During the course of trial, copies were supplied to

accused facing trial U/s 265-C (1) Cr.PC. Charge was framed, accused

pleaded not guilty and opted to face the trial. Prosecution in order to

prove its case, produced nine (09) PWs and closed its evidence. The

gist of depositions of PWs is given below:

5. (PW-1) Amir Muhammad ASI has chalked out FIR (Ex. PA) upon

report of complainant. He verified his signature on the FIR and

deposed that he had also drafted an application (Ex. PW1/1) for the

Medical Examination of the victim and had forwarded him to the

doctor for Medical Examination under the escort of Constable Ishfaq

No. 152. He confirmed that he was examined by the Investigating

Officer.

6. (PW-2) Sher Zaman Constable No. 27 is the Marginal Witness of the

recovery memo (Ex. PC); whereby, the Investigating Officer had

taken into possession the piece of carpet from the crime room,

whereupon the crime was committed, Shalwar of the victim and two

sealed phials brought by Constable Ishfaq from the doctor. (PW-2)

stated that the above articles were taken into possession by the

Investigating Officer in his presence and verified his signature on the

recovery memo and has also testified that he was examined by the

Investigating Officer.

7. (PW-3) Mst. Sultana Bibi complainant appeared in the witness box

and deposed inline with the contents of her report (Ex. PA). She was

confronted with the FIR; she verified her report and thumb impression

thereupon. She categorically charged the accused for the commission

of crime despite the plea of compromise being raised by the accused.

8. (PW-4) Usman S/o Fateh Ullah the victim of instant case, when

appeared for recording his statement, he was found of tender age,

therefore, the following few questions were put to him to ascertain

whether he is able to give statement or otherwise:

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Q-1: What is your name:

Ans: Usman.

Q-2: What is your father’s name:

Ans: Sami Ullah.

Q-3: Today, where you are present, do you know what place is

this?

Ans: Yes, it is court.

Q-4: The witness was confronted with uniform police

official and who is he?

Ans: Correctly replied that he is police official.

Finding his replies rational, his statement was recorded, he stated:

“I was playing and accused Mehboob called me and committed

sodomy with me. Then, I came to my house and narrated the whole

story to my mother. After narrating the whole story to my mother, then

we went for lodging report”.

9. (PW-5) Shams-ud-Din, IHC has conducted investigation. He deposed

that on 26-10-2019 at about 1540 hours, he had received the copy of

FIR and proceeded to the spot and called the complainant Mst.

Sultana Bibi to the spot, who came there, alongwith, her minor son

Usman. This witness prepared the Site Plan (Ex. PB) on their

pointation and deposed that he had taken into possession a piece of

carpet from the crime room, sealed the same in Parcel No.1 (Ex. P1);

he also took into possession two phials containing swabs sent by the

doctor and brought by Constable Ishfaq and sealed in parcel No. 2 for

onward sending to the FSL for analysis and opinion; and also took

into possession the Shalwar of the victim, having black color, sent by

the doctor and sealed in Parcel No. 3 (Ex. P2) and had prepared

recovery memo (Ex. PC). He verified his signature as well as the

signatures of the marginal witnesses on the recovery memo and

deposed that he had sent the parcels to FSL for expert opinion. He

also annexed the report of FSL with judicial file. He has examined the

PWs U/s 161 Cr.PC. He further deposed to have arrested the accused

vide arrest card (Ex. PW5/2), getting him medically examined vide his

application (Ex. PW5/3) and annexing the report of doctor in this

connection with the judicial file as (Ex PW5/4). He further testified to

have procured one day police custody of the accused vide his

application (Ex.PW5/5), interrogated him and recording his statement

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U/s 161 Cr.PC and producing him before the Magistrate for recoding

his confessional statement, where accused refused to record his

confessional statement. This witness has verified his signatures on all

the above-mentioned documents.

10. (PW-6) Ishfaq Ahmad Constable No. 152 testified to have taken the

victim Usman to the doctor with application for his medical

examination. He stated that after examination of victim by the doctor,

the doctor had handed over the two phials containing swabs and a

light black color Shalwar of the victim Usman, which he had handed

over to the Investigating Officer and the Investigating Officer also

examined him U/s 161 Cr.PC.

11. (PW-7) Dr. Humayun MO, DHQ Hospital, Tank has examined the

victim Usman on 26-10-2019, and testified that as per his examination

he found the following:

(1) His age was 8-9 years.

(2) There were blood stains on his Shalwar.

(3) Sodomy had been committed with the victim.

(4) I procure the internal and external swabs of the victim and handed

over to the same constable.

This witness has exhibited his report as (PW-7/1) and verified his

signature thereupon.

12. (PW-8) Dr. Farhat Ullah MO, DHQ Hospital, Tank examined the

accused and found the following:

“From physical appearance (including secondary sexual

characteristics) the accused seemed to be capable of sexual

intercourse and apparently to be aged about 17/18 years of age. For

exact age calculation medical board consisting of Radiologist and

Dental Surgeon would be needed. The accused were fully conscious

and sane”.

This witness has verified his signature on his report brought on file

as (Ex. PW5/4).

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13. (PW-9) Fahim Mumtaz, SHO has submitted complete challan (Ex.

PW-9/1) for the trial of accused and has verified his signature

thereupon.

14. With the statement of (PW-9), prosecution closed its evidence.

Therefore, accused facing trial was examined U/s 342 Cr.PC, wherein,

he professed innocence. He did not opt to lead evidence in his defense

nor wished to be examined as his own witnesses U/s 340 (2) Cr.PC,

on oath.

15. I have heard the arguments of learned Sr.PP for State and learned

counsel for accused facing trial and have gone through the case file,

carefully.

16. Learned Sr.PP for the State argued that accused has directly and by

name been charged in the FIR, which has been promptly lodged,

diminishing the chances of deliberation and concoction. He further

argued that the charge as contained in the FIR is supported by the

corroboratory evidence brought on file in the shape of recovery of

incriminating stuff from the spot, Medico-legal reports and consistent

testimonies of the PWs. He further argued that the crime is moral

turpitude, wherein a minor aged boy has been molested and prayed for

infliction of maximum punishment.

17. Learned defense counsel argued that prosecution has failed to prove

its case beyond reasonable doubt. He next argued that the case of

prosecution is full of doubts, therefore, may not be considered.

Learned counsel contended that there is an unexplained delay in

lodging of FIR; the alleged blood stained Shalwar of victim has not

been examined through FSL for blood grouping whether the same

were belonging to victim or otherwise; the report of FSL regarding

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Swabs is Negative showing that no offense has been committed.

Learned counsel further argued that the statement of complainant Mst.

Sultana Bibi is not admissible in evidence being based on hearsay of

the victim, while the statement of victim (PW-4) recorded U/s 161

Cr.PC too is inadmissible in evidence as he has not narrated the story

to the Investigating Officer. Therefore, his deposition in the witness

box may be considered as dishonest improvement. Regarding the

collection of a piece of carpet and its report furnished by FSL, the

learned defense counsel contends that it is not clear as to whose semen

were found thereupon whether belonging to the victim or accused or

someone else. Learned counsel further contended that parties have

effected compromise with each other and accused has satisfied the

complainant party about his innocent, therefore, the compromise may

also be considered and requested for acquittal of the accused.

18. Record in the light of arguments of learned Sr.PP for the State and

learned defense counsel would show that the case of prosecution is

based upon direct ocular account furnished by the victim Usman (PW-

4) and her mother complainant Mst. Sultana Bibi (PW-3), Medico-

legal evidence brought on file in the shape of (Ex. PW7/1), (Ex.

PW5/4), corroborative piece of evidence brought on file as (Ex. PC),

(Ex. P1-Piece of carpet), report of FSL brought on file as (Ex. P/1)

and testimonies of (PW-2), (PW-3), (PW-4), (PW-7) and (PW-8).

Whereas, the defence line is straight deny of the allegations and false

implication, however, no reason whatsoever has been advanced nor

any malice hinted, as to why the accused was roped in, in the instant

case.

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19. So far as the ocular account is concerned, it consists of the statements

of victim Usman, who entered the witness box as (PW-4) and deposed

straight away that accused facing trial had forcibly taken him to the

room in his house and sodomized him. The victim further testified that

after the occurrence, he came to his house and narrated the whole

story to his mother, who took him to the Police Station and then the

report was lodged. Complainant Mst. Sultana Bibi who entered the

witness box as (PW-3) also narrated the same facts which were

disclosed to the Police at the time of lodging of FIR and the facts so

narrated were emerged from the mouth of the victim, soon after the

occurrence. Both these material prosecution witnesses were subjected

to cross examinations, but they were not shattered on material

particulars of the case nor any thing beneficial to the accused was

elicited from their mouths. Therefore, their testimonies are adjudged

to be consistent, coherent and confidence inspiring.

20. FIR has been lodged with sufficient promptitude, there is no

inordinate delay in reporting of the matter. Complainant at about 1320

hours was informed by the victim and then despite being a lady, the

victim was taken to the Police Station, where the report was lodged at

1500 hours and the FIR was then chalked out at 1530 hours. Hence,

no inference could be drawn that the report is delayed and/or the result

of consultation or deliberation and thereby concoction. This aspect, if

is seen in juxtaposition with the factum of no plea of malice,

throughout, would lead the court to legally infer that the FIR has been

lodged with sufficient promptitude as there is no ground for false

implication.

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21. Medico-legal evidence brought on file in the shape of (Ex. PW7/1) i.e.

The medical examination report of the victim, which clearly provides

that the victim Usman was sodomized and stains of blood were found

on his Shalwar. The testimony of (PW-7), in this respect remained

consistent. Learned defense counsel subjected this witness to cross

examination but could not shatter him on the material point of sodomy

by the accused. Learned defense counsel has however, pointed out

that (PW-7) had examined the victim at 1000/1100 hours, while FIR

was chalked out at 1530 hours, hence, the Medicolegal examination of

the victim being the part of investigation has been conducted prior to

the report, hence, the same is not admissible in evidence. He further

contended that the doctor has failed to have obtained the sample of

blood stains found on the Shalwar of victim, which hints at improper

examination of the victim, at all if he had been examined. In this

perspective, if we see the deposition of (PW-7) viz-a-viz the time of

his examination as contained in the statement, it would reveal that

(PW-7) has vividly mentioned that he did not remember the exact

time when the victim was brought before him, however, it was

probably 1000/1100 hours. The word probably is very apparent in the

cross examination of witness, therefore, stretching it towards the

doubts in the time of examination of the victim and inferring that the

examination was done prior to the report, would not be correct, as the

report (Ex. PW7/1) does not contain the time of examination. Thus,

the contention of learned defense counsel is out of place which is

discarded.

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22. Not taking into possession the samples of blood from the Shalwar of

the victim too was agitated before the court. In this perspective, it

could be held to be negligence of the doctor or the Investigating

Officer regarding collection of corroborative evidence and not beyond

that, as negligence on the part of Investigating Officer or weakness of

corroborations do not vitiate the strong, consistent, coherent and

confidence inspiring ocular account. The objection so raised by

learned defense counsel is not considered.

23. The accused was also examined, medically and vide report (Ex.

PW5/4) was found able to perform sexual act. In this respect the

testimony rendered by (PW-8) is consistent and confidence inspiring

as the learned defense counsel could not shatter him on the point of

his potency. Hence, the medicolegal evidence brought on file is held

to be providing corroboration to the story of prosecution regarding

forcible sodomy by the accused.

24. It has been agitated before the court that accused is juvenile. But,

record i.e. arrest card shows him to be aged about 17/18 years. Similar

is the case with the report (Ex. PW5/4) and above all, when the charge

was framed by asking about the age of accused, from the accused, it

was narrated as 19/20 years by the accused himself and defense could

not raise this issue till the conclusion of trial nor bring any other

documentary proof or school certificate etc. Therefore, the plea of

juvenility being raised during the stage of arguments cannot be

considered. Record would clearly depict that on two occasions i.e. at

the time of framing of charge and examination of accused U/s 342

Cr.PC, accused was asked about his age and he disclosed it to be

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19/20 years. It is pertinent to mention that on the date, when accused

were being indicted, Mr. Fazal Karim Khan Advocate was present,

alongwith, the accused before the court, while at the time of

examination of accused U/s 342 Cr.PC, Mr. Ghulam Mustafa Marwat

and Mr. Fazal Karim Khan Advocates were present.

25. The recovery of piece of carpet from the crime room situated in the

house of accused, in the presence of (PW-2) sealing the same in parcel

No. 1, sending it to the FSL and the report of FSL (Ex. P/1) showing

that parcel No. 1 was containing a piece of carpet and was found

having semen of human origin thereupon, provides for strong

corroboration to the story of prosecution, containing the factum of

cleansing of victim with the carpet, contained in the very initial report.

The witnesses of this recovery, who entered in the witness box are

(PW-2) and (PW-5), and the defense failed to have shattered them on

material particulars and mode of the recovery, sealing, transmission to

the FSL and the report of FSL. Thus, the recovery of piece of carpet is

held to be a strong piece of corroborative evidence. In this

perspective, it is worth mentioning that two phials containing internal

and external swab and Shalwar of the victim which were also sent to

the FSL were found having no semen of human origin thereupon,

therefore, the stance of the victim and prosecution that the victim has

cleansed himself soon after the occurrence is material, and cannot be

stretched towards the theory of innocence of the accused.

26. Learned defense counsel has also argued that parties have effected

compromise with each other, which may also be considered, as

accused has proved his innocence to the family of complainant. In this

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perspective, it is crystal clear that the crime is not compoundable as

per S. 345 of the Cr.PC, therefore, compromise in such like matters

viz-a-viz trials cannot be considered rather the same, particularly, in

case of consistent evidence provides for admission of the occurrence.

In this respect, accused was asked during his examination, he admitted

the compromise but stated that he had satisfied the family of the

victim regarding his innocence, however, no such proof of his

innocence has been brought before the court.

27. Learned defense counsel has also agitated that the victim Usman when

entered the witness box as (PW-4), he disclosed the name of his father

as Sami Ullah instead of Fateh Ullah, therefore, there might be some

doubt about his identity. Raising such flimsy pleas at such belated

stage of the trial and not raising such questions during his examination

and cross examination, which was made by the learned defense

counsel, surely would have no effects upon the identity of victim.

Nevertheless, the memorandum of questions put to the victim was

aimed at arriving at some conclusions whether the victim could record

statement and could give rational replies or others, which purpose was

attained, victim was examined and cross examined. The argument of

learned defense counsel is not worth consideration.

28. Thus, keeping in view the above discussion, it is held that prosecution

has proved its case of forcible sodomy with a minor age boy, beyond

any shadow of doubt, therefore, accused facing trial Mehboob S/o

Aslam R/o Mohallah Civil Line, Tank city, District Tank is hereby

convicted under section 377 PPC and upon conviction is sentenced to

suffer rigorous imprisonment for 10 years. The convict is further

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sentenced to pay a fine to the tune of Rs. 200,000/- (Two lacs). In case

of default in payment of fine, the convict shall undergo further simple

imprisonment for 06 months. Benefit of section 382-B Cr.PC is

extended to the convict.

29. Copy of this judgment be supplied to the convict free of cost and to

this effect his acknowledging thumb impression be obtained on the

margin of final order sheet. Another copy be sent to District Public

Prosecutor, Tank within the meaning of section 373 Cr.PC.

30. Case property be disposed off according to law, but after the expiry of

period of limitation prescribed for appeal/revision.

31. File be consigned to the record room after necessary completion and

compilation.

Announced

27.11.2020

JEHANZEB SHINWARI

Sessions Judge Tank

CERTIFICATE

It is hereby certified that this judgment consists of twelve (12)

pages, each page read corrected and signed by me.

JEHANZEB SHINWARI

Sessions Judge Tank