377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.

Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.

COMMENTARY

1. Deficient evidence. There was no identification as to who pointed the various points to the police-officer and from which position the alleged eye-witness saw the occurrence and from which place the victim was collected by whom. Even the distance were not mentioned. Such sort of negligence on the part of investigator in such a heinous crime and cruel act should not go un-noticed by senior police officers. It was indeed the duty of investigation to collect best evidence. Doctor performed the potency test of the appellant unfortunately failed in his duty to procure semen if the accused for the purpose of ascertainment whether it matched with semen found on the swabs of the victim. It is well nigh impossible to do justice with such faulty investigation and criminal lack of assistance. However painful the incident reported to the police, the judge is duty bound to assess the evidence placed on record. In order to record conviction the judge must be convinced that the prosecution had successfully established guilt of accused without any shadow of reasonable doubt. The Holy Prophet (P.B.U.H.) has cautioned that the punishments (Hadood) should be suspended whenever doubt creeps in the judicial proceedings. Incident of sodomy was of course proved but its nexus with the appellant was not established. Evidence placed on record and the manner in which the investigation was under taken and the prosecution proceedings handled does not inspire confidence. PLJ 2008 FSC 36.

2. Offence of sodomy. Provision of Section 7 of Zina Ordinance, 1979 not attracted. Conviction altered under Section 377, P.P.C. 1992 PCr.LJ 1799; 1986 SCMR 533. Marks of violence. Not a condition. 1990 ALD 394(1). Consent. Immaterial. 1988 SCMR 1614. Offence complete when there is an act of carnal intercourse against order of nature with any man, woman or animal. PLJ 2003 Cr.C. (Lah) 852. If reports of Medical Officer or Chemical Examiner is negative, it would mean that oral witnesses failed to prove allegation. PLJ 2003 Cr.C. (Lah) 852. Semen found on swabs taken after four days of commission of offence not reliable as it is not possible that one can retain semen after passing stool and washing of body. [NLR 2004 SC 1041]

3. Res gestae. Circumstances, facts and declaration which spontaneously grow out of main fact and serve to illustrate its character being res gestae, admissible provided they are contemporaneous with main fact as to exclude the possibility of deliberation and fabrication. [2004 PCr.LJ 1209]

4. Appreciation of evidence. Statement of victim revealed that same is trustworthy, reliable and confidence inspiring. Conviction can be based on solitary statement of victim. PLJ 2004 FSC 202.

Accused being Maulvi belongs to religious community who committed a preplanned crime by abducting the victim and then subjecting him to unnatural lust. Shock and trauma suffered by 10 years old victim is likely to last very long time. Sentence maintained. PLJ 2005 FSC 69.

Statement of victim was consistent and coherent and was fully supported by medical and chemical examiner's report. Defence plea was totally incredible being vague and general in nature. Prosecution successfully discharged its onus. Conviction and sentence maintained. 2005 PCr.LJ 617.

Sentence of 14 years was reduced to 10 years R.I. in view of young age of accused. 2005 PCr.LJ 81.

Element of commission of offence forcibly or abducting victim against his will being lacking. Accused was rightly acquitted from charge under S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Plea that victim was a willing partner could not be ruled out. Consent of victim in case of unnatural offence though was of no consequence vis-a-vis conviction but same would furnish a mitigating circumstance in favour of accused. Sentence was reduced from 3 years R.I. to 2 years R.I. 2005 PCr.LJ 158.

Section 423(b), Cr.P.C. empowers Appellate Court to reverse finding and sentence and acquit or discharge accused person or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court. S. 423(d), Cr.P.C. further empowers Appellate Court to make any amendment or any incidental order that might be just and proper. Powers u/S. 423, Cr.P.C. have to be read with S. 439, Cr.P.C. which are wide and cover many aspects and areas. To remand a case to trial Court is one of those powers and examination of victim is an incidental order. No pre-judice as thus counsel to petitioner by remand order. PLJ 2008 Cr.C. (Lahore) 718.

All prosecution witnesses have made statements in line with each other. Discrepancies pointed out pertain to extraneous details of case. None of them in any manner reflects on truthfulness of prosecution version. Defence evidence neither appeals to reason nor appears to be truthful. All pieces of evidence taken together proved beyond any doubt that petitioner comitted offence. Doctor has given opinion against accused with regard to offence in question. Report of Chemical Examiner is also positive. Courts below have thoroughly considered evidence on record and finally convicted and sentenced petitioner. Supreme Court does not normally interfere in concurrent conclusions arrived at by Courts below while exercising Constitutional power. PLJ 2007 SC 467.