RIFAT BIBI vs ABID SHAH S — 2022 PCrLJ 52 QUETTA-HIGH-COURT-BALOCHISTAN

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RIFAT BIBI VS ABID SHAH S. 377---Unnatural offence---Appreciation of evidence---Appeal against acquittal---Medical evidence---Scope---Medical jurisprudence---Procedure to check sodomy---Principles---Accused was charged for committing carnal intercourse with the nephew of the complainant---Medical witness rendered his observation that there was no penetration, browse on anal and tenderness on anal canal---During cross-examination, Medical witness stated that due to warm infections, the child had scratches on his anal canal and during cross-examination further stated that in expert opinion no sodomy was committed and it was only an attempt---Witness stated during cross-examination that there were no injuries on the knees of the victim and no injuries on his person---Section 377, P.P.C., provided that the offences would be completed when the carnal intercourse was taken place---Law provided that for constituting an offence under said section and to establish the carnal intercourse, the penetration was a condition precedent, therefore, the explanation provided in S. 377, P.P.C., stated that "penetration was sufficient to constitute the carnal intercourse---Victim was silent about penetration, while the opinion rendered by the Medical witness was not conclusive---Medical jurisprudence provided a complete procedure for examining the victim of sodomy---Medical opinion rendered by a Medical witness was not in line with the procedure contemplated in the medical jurisprudence, therefore, it was instructed to produce the relevant procedure for medical examination of the victim of sodomy as provided in the Medical Jurisprudence---In the present case, Medico Legal Report stated about the tenderness of anal region which under the medical jurisprudence could be caused due to constipation or in case of irregular bowel habits---Doctor had also failed to use the Proctoscopy instrument in order to obtain the anal swab and did not notice any abrasion or injury on the anal region of the alleged victim---Statement of victim was silent about penetration, thus without obtaining the anal swab of the victim and in the absence of positive report with regard to semen-stained clothes of the victim and the accused and without getting blood group of accused in order to match the semen stains found on the victims clothes, on mere tenderness of the anal region no conclusive opinion could be rendered as to whether sodomy had been committed or not---Sample was taken from the shalwar of the accused but no report of Forensic Expert was produced before the court, which created a reasonable doubt in the prosecution case---Accused was also of 11/12 years, and the victim was of 8/9 years and there were no such injuries on the person of the victim---Said aspect of the case also caused reasonable doubt in the prosecution---Appellant had failed to point out any defect in the impugned Judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine. Head NotesCase Description

RIFAT BIBI vs ABID SHAH S — 2022 PCrLJ 52 QUETTA-HIGH-COURT-BALOCHISTAN

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