2025 CCJ 8

Other citation: 2025 PCrLJ 73

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar, CJ and Shaukat Ali Rakhshani, J

Samiullah—Appellant

versus

The State—Respondent

Criminal Appeal No.490 of 2023, decided on 17^th May, 2024.

HEADNOTES

Ghulam Wali Achakzai, Advocate for appellant.

Mushtaq Ahmed Qazi, Additional Prosecutor General (“APG”) assisted by Wajahat Khan Ghaznavi, State Counsel.

Date of hearing: 25^th April, 2024.

JUDGMENT*

Shaukat Ali Rakhshani, J:—Appellant has brought before us the captioned appeal, seeking annulment of the judgment dated 31.10.2023 (“impugned judgment”) penned by learned Special Judge, Anti Rape-Sessions Judge, Sariab Division, Quetta, (“trial court”) in Anti Rape Case No.04 of 2021, whereby he was convicted under Section 377 of the Pakistan Penal Code of 1860 (“PPC”) and sentenced to suffer life imprisonment with pay fine of Rs.4,00,000/- (Rupees Four Lac Only) or in default thereof to suffer further six (06) months Simple Imprisonment (“SI”) each with the premium of section 382-B of CrPC. However, 50% of fine amount on its recovery was ordered to be paid to victim A.D. (PW-2) as envisaged under section 17 of Anti Rape (Investigation & Trial) Act, 2020.

2.           Laconically, on the strength of an application (Ex.P/1-A), FIR No.81 of 2021 dated 30.10.2021 was lodged by complainant A.R. (PW-1) within the remits of Police Station Shaheed Manzoor Tareen Bakra Mandi, Quetta, averring therein that on 30.10.2021 he was present at home, when his son namely A.D. (PW-2) age about 04 years came back home at 8:45 pm, while weeping, who on query revealed that shopkeeper Samiullah forcibly took him inside his shop and forcibly sodomized him.

3.           After registration of the case, investigation was entrusted to ASI/IO Muhammad Yasir (PW-7), who during investigation took victim A.D. to Civil Hospital Quetta and arrested appellant Samiullah, who were medically examined by Dr. Aysha Faiz (PW-3) Police Surgeon Civil Hospital, Quetta; and got recorded the statement of victim (PW-2) under section 164 CrPC as witness. On 15.11.2021, Muhammad Yasir IO (PW-7) received medical report of the appellant from Dr. Aysha Faiz Police Surgeon through murasilas (Ex.P/6-A), and dispatched the same to Punjab Forensic Science Agency (PFSC) for forensic DNA and Serology Analysis Report. On 13.11.2021, appellant was remanded to judicial custody and handed over the case file to Hidayatullah Tareen SI/SHO, who prepared incomplete Challan (Ex.P/7-C), however, later on, investigation of the case was entrusted to Ghulam Sarwar IP/IO (PW-8) who received DNA report (Ex.P/8-A) from PFSA and handed over the same to Ghulam Mustafa IP/SHO, who forwarded Challan No.86-A/2022 (Ex.P/8-F).

              On conclusion of the investigation, the appellant was sent up to face the culpable deeds of his crime before the trial court. On the stated allegations, a formal charge was read over to the appellant, which he pleaded not guilty, thus in order to drive home the indictment, the prosecution produced as many as eight (08) witnesses in the instant case. On close of the prosecution evidence, the appellant was examined under section 342 of CrPC, wherein he flatly repudiated and denied the prosecution story and evidence so brought against him during trial by also professing innocence by taking plea of false implication. However, the appellant recorded his statement on oath as envisaged by provision of section 340 (2) of Cr.PC and produced DW-1 Dr. Kabeer Ahmed, DW-2 Noorullah and DW-3 Haji Wali Jan in support of his defence plea.

4.           Learned counsel for the appellant inter alia contended that the prosecution has failed to prove the charge against the appellant, but the learned Trial Judge contrary to the evidence available on record has recorded the verdict of guilt, which is unsustainable, thus, liable to be set aside. He added that the entire case rests upon the statements of victim and medical evidence, which are in conflict, as such, no reliance can be placed upon such evidence, hence, the case being doubtful and the reasoning drawn by the Trial Judge being contrary to record are unsustainable, thus merits to be set-aside and in consequence thereof the appellant deserves acquittal.

              Conversely, learned APG strenuously repudiated the arguments so advanced by learned counsel for the appellant and urged that the testimony of the victim (PW-2) has been corroborated by medical and FSL reports. He maintained that the appellant has been convicted on the basis of proper appraisal of the evidence, which does not call for interference, henceforth, requested for dismissal of the appeal.

4.           Heard. Record vetted wall to wall with the able assistance of counsel for both the adversaries. The case of prosecution hunges upon the testimony of victim A.D. (PW-2), medical evidence of Dr. Aysha Faiz (PW-3), who issued Medico Legal Certificates (Ex.P/3-A) of victim and (Ex.P/3-B) of appellant coupled with circumstantial evidence of father of the victim namely A.R. (PW-1), uncle of victim M.Y. (PW-5), statement of Aminullah Achakzai, Judicial Magistrate-I Sariab Division (PW-4) who recorded statement of victim PW-2 under section 164 of CrPC (Ex.P/4-A) and depositions of recovery witness Syed Zeshan Ahmed (PW-6) and investigating officers Muhammad Yasir (PW-7) and Ghulam Sarwar (PW-8) and above all the FSL report (Ex.P/8-B) dated 29.04.2022.

              Complainant (PW-1) reiterated, what he had reported in his application (Ex.P/1-A). He is not the eyewitness of the occurrence. Victim (PW-2) gave him the first hand information regarding commission of carnal intercourse with him by the appellant. M.Y. (PW-5) is uncle of the victim, who resides with complainant and victim in the same house. He testified that on 30.10.2021 at 9:00 O’clock victim A.D. (PW-2) told them that appellant had sodomized him, whereafter he and his brother A.R. (PW-1) got lodge the FIR. Complainant (PW-1) and his brother M.Y. (PW-5) were cross-examined at length, but the defence failed to extract anything beneficial. M.Y. (PW-5) during cross-examination denied that there was enmity between the appellant and complainant party.

5.           Victim A.D. (PW-2) age four years is the star witness. The trial court before recording his testimony conducted a preliminary inquiry by putting questions to the victim (PW-2) in order to ascertain whether he was able to testify before the court and capable enough to narrate the occurrence, whereof learned Trial Judge concluded that the victim (PW-2) was able to testify, henceforth, his statement was recorded. A.D. (PW-2) testified that on fateful night at 4:45 pm he went to the shop of appellant to buy crackers, where the appellant took him inside the shop and forcibly undressed him and sodomized him. He (PW-2) also stated that blood was oozing from his stool, whereof he apprised his father (PW-1), whereafter they lodged the report. He identified the appellant as the culprit of sodomy in the court. He was not cross-examined at length except suggesting questions of denial, thus his testimony went unshaken. The statement recorded by the victim (PW-2) under section 164 Cr.PC by Judicial Magistrate-I Sariab Division is of no significance, when the victim (PW-2) appeared and testified before the court.

6.           The testimony of the victim has been confirmed by the medico legal certified (Ex.P/3-A) issued by Dr. Ayesha Faiz (PW-3). She (PW-3) medically examined the victim (PW-2) and appellant. She (PW-3) in her medico legal certificate (Ex.P/3-A) made certain observations, which follows as under:-

“Observations:

Brought by custody.

Physically and mentally healthy.

Well oriented to time and space.

Injuries:

1 ½ cm tear above the anal sphincter with a small abscess with slight bleeding.

Blood Group ‘A’ positive.

Samples taken are;

1.     Blood.

2.     Buccal swab stick.

3.     Anal Swab stick.

4.     Shalwar.

Opinion:

Sexual assault has been performed upon him. Samples are taken and sent for chemical analyses”

              PW-3 Dr. Ayesha Faiz also issued medico legal certificate (Ex.P/3-A) of appellant and made the following observations;

Observations:

Brought by custody.

Physically and mentally healthy.

Well oriented to time and space.

Secondary Sexual Characteristics were well developed.

Blood Group ‘O’ positive.

Samples taken are;

1.     Blood.

2.     Buccal Swab stick.

3.     Shalwar.

Opinion:

He is able to perform the act of sexual inter course and medically he is potent”

7.           The buccal and anal swab with clothes provided by Dr. Ayesha Faiz (PW-3) were sent to PFSA for forensic, DNA and serology Analysis, whereof report (Ex/P/8-A) was issued, which affirms the presence of spertozoman on item No.6.1-6.2, strengthening the case of prosecution.

8.           Adversely to the defence plea, it may be observed that the appellant beside his own statement also produced Dr. Kabeer Ahmed (DW-1), Noorullah (DW-2) and Haji Wali Khan (DW-3). Dr. Kabeer Ahmed (DW-1) testified that the appellant was working as Assistant with him in his medical store and that on 31.10.2021 at 5:00 pm he was present with him in his medical store at Mian Ghundi. The statement of Dr. Kabeer Ahmed (DW-1) is no help to the appellant for the occurrence took place on 30.10.2021. Noorullah (DW-2) testified that appellant is his cousin and that father of the appellant and complainant (PW-1) had a dispute over a shop. He admitted that the matter was resolved between them by the arbitrators, but stated that he cannot produce the written decision of the arbitrators. Haji Wali Khan (DW-3) is also relative of the appellant, who also reiterated regarding dispute between father of appellant and complainant (PW-1) over a shop prior to the instant case, however, stated that it was resolved. In view of the above, we are of the considered view that if the prosecution version is kept in juxtaposition with the stance of defence, no other view can be drawn except that the case of the prosecution is more plausible, confidence inspiring and truthful then the defence version.

9.           For what has been discussed herein above, we have arrived at an irresistible conclusion that the prosecution has successfully proved the indictment without any shadow of doubt against the appellant, which has rightly been endorsed by the trial court vide impugned judgment 31.10.2023 which has been examined by us critically, but found to be based upon proper appraisal of the evidence, suffering from no perversity, thus the appeal is dismissed.

              However, keeping in view the peculiar circumstances, considering, 13 years age and the appellant being first offender, having no previous criminal record, the impugned judgment dated 31.10.2023 is modified and consequently, while maintaining the conviction, the sentence of the appellant is reduced from life imprisonment to five (05) years, whereas the sentence of fine of Rs.4,00,000/- (Rupees Four Lac Only) is reduced to Rs.2,00,000/- (Rupees Two Lac Only) and in case of default of fine, the convict shall further undergo three (03) months SI, having the premium of section 382-B PPC.

Sentence modified