2007 S C M R 698

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman Justices Sardar Muhammad Raza Khan,
Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

SAIN—-Petitioner

Versus

THE STATE—-Respondent

Jail Shariat Petition No.44 of 2005, decided on 30th November, 2006.

(On appeal from the judgment, dated 22-7-2004 passed by the Federal Shariat Court in Criminal Appeal No.141/I of 2003).

(a) Penal Code (XLV of 1860)—

—-S. 377—Constitution of Pakistan (1973), Art.203-F(2B)—Federal Shariat Court after reappraising the evidence had upheld the conviction and sentence awarded to the accused by Trial Court—Impugned judgment did not suffer from any illegality or infirmity—Prosecution witnesses had made statements in line with each other—Discrepancies pointed out in evidence were extremely insignificant which pertained to extraneous details of the case and did not reflect in any manner on the truthfulness of the prosecution version—Defence version neither appealed to reason nor appeared to be truthful—Courts below had neither omitted from consideration any evidence nor misread any material evidence on record while convicting the accused—Doctor had given opinion against the accused with regard to the offence of sodomy in view of the principles of medical jurisprudence—Report of the Chemical Examiner was positive—Supreme Court normally did not interfere in the concurrent findings of the Courts below while exercising constitutional power—Leave to appeal was refused to accused in circumstances.

Medico-legal Dictionary by DR. M.H. Cheema and Pir S.A. Rashid; Medical Jurisprudence and Toxicology by Dr. S. Saddiq Hussain; Principles and Practice of Medical Jurisprudence by A. Keith Mant and Noora’s case PLD 1973 SC 469 ref.

(b) Penal Code (XLV of 1860)—

—-S. 377—Unnatural offence—Scope—Unnatural offence consists of penetration of the penis into the anus and mere penetration suffices to establish the offence—Proof of ejaculation is not necessary for conviction.

Principles and Practice of Medical Jurisprudence by A. Keith Mann ref.

(c) Constitution of Pakistan (1973)—

—-Arts. 185 & 203-F—Appellate jurisdiction of Supreme Court—Concurrent findings of lower Courts—Supreme Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional jurisdiction.

Noora’s case PLD 1973 SC 469 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Complainant in person.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 30th November, 2006.

JUDGMENT

JUSTICE CH. IJAZ AHMED (MEMBER).— The petitioner has sought leave to appeal against the judgment of the Federal Shariat Court, dated 22-7-2004 wherein the appeal filed by the petitioner was dismissed. The brief facts out of which the present petition arises are that petitioner is involved in case F.I.R. No.49 which was registered on 19-4-2003 under section 12, Offence of Zina (EOH) Ordinance, 1979 and section 377 of P.P.C. on the complaint of Muhammad Ijaz P.W.6 father of the victim Tauseef Ijaz P.W.S. The facts according to the

contents of the F.I.R. which were noted by the learned Federal Shariat Court are as follows:-

“Briefly stated F.I.R. No.49, dated 19-4-2003 Police Station Basal, District Attock was registered at the instance of one Muhammad Ejaz, complainant with allegations that offence of sodomy was committed with his son Tausif Ejaz by the accused/appellant. According to the facts narrated in the FIR., victim was a minor aged about 12 years and was proceeding to mosque for his prayers and in the way, he was taken over by the accused/appellant to his house and in the room forcibly removed his Shalwar and committed the act of sodomy.”

2. The challan was submitted by the Investigating Agency after investigation. The trial Court had completed the legal formalities such as framing of charge, recording of prosecution evidence and statement of accused. The learned Additional Sessions Judge Attock vide its judgment dated 16-6-2003 convicted under section 377 of P.P.C. and sentenced to ten years’ R.I. with fine of Rs.20,000. In case of default in payment of fine to further undergo three months’ S.I. with benefit of section 382-B, Cr.P.C. The petitioner was acquitted under section 12 of the Offence of Zina (EOH) Ordinance, 1979. The petitioner being aggrieved filed appeal before the learned Federal Shariat Court which was dismissed as mentioned above. Hence the present petition.

3. The learned counsel for the petitioner submits that three versions are borne out in case the statement of the convict be read as a whole from the following portions of examination-in-chief and cross-examination of P.W.5 Tausif Ejaz victim:

Examination-in-chief “On 19-4-2003, I was proceeding towards Lari Masjid to offer my Zohar prayer.”

Cross-examination. “I had mentioned the said statement that thereafter, I did not go to mosque and returned to my house where I narrated the said occurrence to my mother (confronted with Exh.D.A. not so recorded). It is correct that my house is situated at a distance of about 2 miles from the mosque known as Lari Mosque. It is correct that my house is situated in the Abadi known as “Dhoke Arr”. It is also correct that there is a mosque in that Dhok. It is correct that there is a mosque at distance of about one mile from my house which is known as the “Mian Muhammad Masjid”. At a distance of about 10 paces in front of the house of the place of occurrence there is a mosque known as “Mian Muhammad Masjid”.

—-” During the days of occurrence the Zohar prayer was offered at about 2-30 p.m. I left my house at 2-30 p.m. on the said day all alone. I reached in Mosque Lari within 40 minutes. I remained in the said mosque for about 2 hours. On the day of occurrence there were about 75 children in the mosque. The students were relieved from the mosque at one and same time at about 4-30 p.m.”

—-“One Ghulam Haider who is sitting inside the Court is known to me. He has come to pursue my case. When for the first time I went to the police station along with my father the said Ghulam Haider was not with us. The said Ghulam Haider never visited the police station with us.”

—-“On the day of occurrence I have been summoned by the police in police station for 4/5 times. It is correct that firstly I was summoned by the police at about, 12/12-30 on the day of occurrence.”

He further urges that there is major contradictions in the statement of the victim as mentioned above but both the Courts below failed to give due weight to the said contradictions. He further submits that statement of the victim is not in consonance with the medical evidence. He further urges that doctor had not given his opinion as evident from the examination-in-chief as he had taken three swabs from anal and parianal region for securing chemical report. He had given opinion qua sodomy after receiving report from the Chemical Examiner against the petitioner. He further submits that petitioner was involved in a case at the instance of one Ghulam Haider with whom the petitioner was in litigation. He further maintains that Chemical Examiner has sent back the envelopes containing swabs to the police station which were sent back -after removing the objections to the Chemical Examiner as evident from statement of P.W.2 Mumtaz Akhtar, therefore, report of Chemical Examiner does not furnish any corroboration in such situation. He sums up his arguments that evidence which had come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. Moreso, the defence version has not been kept in juxtaposition which has been substantiated on the basis of documentary evidence.

4. The learned counsel for the complainant supported the impugned judgment.

5. The learned Deputy Prosecutor-General Punjab submitted that both the Courts below had convicted the petitioner after proper appreciation of evidence.

6. We have considered the submissions made by counsel for the parties and perused the record. All the contentions raised by the learned counsel for the petitioner are exactly the same which were raised by the learned counsel for the petitioner before the learned Federal Shariat Court and were rejected with cogent reasons as evident from paragraphs 8 to 21 of the impugned judgment. However, in the interest of justice and (airplay, we have also re-examined the evidence on record, we do not find any infirmity or illegality in the impugned judgment. The learned Federal Shariat Court had reappraised the evidence and upheld the conviction awarded by the trial Court to the petitioner. All the prosecution witnesses have made statements in line with each other. The learned counsel has tried to point out some discrepancies in their statements but they are all extremely insignificant. None of the discrepancies or any variation could be pointed out regarding any material aspect of the case. The discrepancies pointed out by the learned counsel all pertain to extraneous details of the case. None of them in any manner reflects on the truthfulness of the prosecution version. The defence evidence neither appeals to reason nor appears to be truthful. All the pieces of evidence taken together proved beyond any doubt that the petitioner committed the offence. Both the Courts below neither omitted from consideration any evidence nor misread any material evidence on record while recording conviction of the petitioner. The contention of the learned counsel for the petitioner that doctor has not given his opinion has no force. The relevant portion of the statement of examination-in-¬chief and cross-examination is reproduced hereunder:–

Examination-in-chief.—“The anal and parinal region, there was no specific mark of violence. Anyhow the anus somewhat dilated. On dilating the anal sphincter the inner mucousa is ruptured. The rupture was vertical. On the upper margin of anus which was 3/4 c.m. in length, there was slight oozing of blood, from ruptured mucousa.”

Cross-examination.– “It is correct that after rupture of mucousa if bleeding starts then it came to an end within one hour. After about 10 minutes of the rupture bleeding came to an end and also the healing process starts within a period of one hour. It is correct that on dilating the rupture again that rupture starts to bleed. The victim was brought to me at about 10-15 p.m. An hour consumed in medical examination of the victim as well as other process.” (the underlines are ours)

7. The meaning of the underline words mentioned above and related words according to Medico-legal dictionary are as follows:–

Anal. Pertaining to the anus (book Medico-legal dictionary by Dr. M.H. Cheema and Pir S.A. Rashid).

Sphincter. A circular muscle, the office of which is to close certain natural orifices. (Book Medico-legal dictionary by Dr. M.H. Cheema and Pir S.A. Rashid).

Sodomy. This means action of a male person attempting to obtain sexual gratification, by means of the anus of a human being, man or woman including his wife.

—- For the purpose of law, mere penetration is enough, emission of semen is not necessary. (Book Medical Jurisprudence and Toxicology by Dr. S. Saddiq Hussain).

8. Mere reading of the meaning of the aforesaid words clearly shows that doctor has given opinion against the petitioner with regard to the offence in question in view of the book Principle„ and Practice of Medical Jurisprudence by A. Keith Mant which is to the following effect:–

“The offence consists of penetration by the penis into the anus, and the merest penetration suffices to establish the offence. Proof of ejaculation is not necessary for conviction.”

9. The report of Chemical Examiner is also positive. Both the Courts below have thoroughly considered the evidence on record and finally convicted and sentenced the petitioner. It is a settled law that this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional power as law laid down by this Court in Noora’s case PLD 1973 SC 469.

10. For what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.

N.H.Q./M-4/SC Leave to appeal refused.

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