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.
(
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.