' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,666 of 2000 filed by Muhammad Asif alias Achhu, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Vehari vide his judgment dated 23-12-2000 to death under section 302(b), P.P.C. With a fine/compensation of Rs,20,000 or in default two months' R.I. And five years' R.I.
Under section 511, P.P.C. And a fine of Rs,5,000 as "Daman" or in default six months' R. I .
' Murder Reference No,98 of 2001 for confirmation of death sentence of otherwise of the appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place on 27-7-1998 after "Mughrab Prayer" within the revenue estate of Chak No,11/WB at a distance of two furlongs away from Police Station, City Vehari while the matter was reported to the police on the same day at 8-45 p.m. By Abdul Rashid P.W.5 and the formal F.I.R. Exh.P.F. Was recorded by Mulazim Hussain, Inspector/S.H.O. P.W.7.
3. Briefly stated the facts of the case, as disclosed by Abdul Rashid P.W.5 complainant are that on the fateful day i.e, 27-7-1998 complainant along with two sons of his elder brother Muhammad Hussain, Muhammad Anwar and Muhammad Ashraf and Muhammad Yasin his cousin were sitting in the compound of his house, when Muhammad Asif alias Achhu accused-appellant came there and asked Muhammad Ashraf, deceased to come out of the house to accompany him for urination purpose. Both the deceased and the said accused went away for the said purpose while rest of the said persons remained sitting in the house. After half an hour, Muhammad Ashraf deceased came to the door of the house and fell down there crying "he is injured' hearing of whom they all the said three persons rushed to the door and saw the deceased Muhammad Ashraf sustaining injuries on his person, one of his chest and four on his back. On their asking, the deceased told that Asif alias Achhu accused had taken him in a vacant plot lying in front of the house under the pretext of urination whereon accused tried to persuade him to be sodomized by him, on his refusal the said accused under the fear that deceased might not tell his family about the above fact, picked out a Chhurri from his Dab and inflicted a blow on his abdomen but the deceased ran away and while running the said accused gave him Chhurri blow on his back and he had reached home in an injured condition. Complainant added that after telling the above fact, the deceased became unconscious and was shifted and admitted to the hospital by the complainant.
' The motive as alleged is that accused Asif alias Achhu when attempted to commit sodomy upon the deceased and on latter's refusal to quench his above lust, the accused inflicted the injuries with Chhurri under the fear that the deceased might not tell his family about the attempt to commit sodomy with him on his part and under this fear the accused killed him.
4. Mulazam Hussain Inspector/S.H.O. P.W.7 took over the investigation of this case. After registration of the formal F.I.R., he went to the hospital, where the dead body was lying, prepared injury statement Exh.P.B. And inquest report Exh.P.C., recorded the statement of the P.Ws. Under section 161, Cr.P.C., then proceeded to the spot, took into possession blood-stained earth vide memo. Exh.P.G.
On 9-8-1998 he arrested the accused and on 12-8-1998 Muhammad Asif accused while in custody led to the recovery of Chhurri P.4, which was taken into possession vide memo. Exh.P.H. After completion of remaining formal investigation the accused was challaned to face the trial.
5. At the trial prosecution in order to prove its case produced eight witnesses in all, thereafter, learned A.D.A. Tendered in evidence report of Chemical Examiner relating to Chhurri Exh.P.K., that of Serologist Exh.P.L., report of Chemical Examiner relating to blood-stained earth Exh.P.M. That of Serologist Exh.P.N. And report of Chemical Examiner relating to swabs Exh.P.O. And closed the prosecution case, then, the statement of the accused-appellant was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, Muhammad Akram and Abid Hussain accused were tquitted while the present appellant was convicted and sentenced as stated above by the leaned trial Court.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that it was a case of circumstantial evidence, that there is no eye-witness in this case and in fact it was an unwitnessed occurrence, that according to Mulazam Hussain, Inspector/S.H.O. P.W.7 he received a "Chit" in the Police Station at 9-30 pm on 27-7-1998 that the dead body had been received in the hospital, on which he went there and from there he went to the spot and started proceedings while Abdul Rashid P.W.5 real brother of the deceased had stated that after the occurrence he went to the police station after leaving the dead body in the hospital. Learned counsel further submits that according to cross-examination of Dr. Muhammad Abdullah Khan P.W.1, who conducted the post-mortem examination on the dead body of the deceased, after receiving the first injury the deceased was not in a position to move and further after receiving the other four injuries he could not have gone to his house. Adds that in the brief facts of the inquest report there is no mention of the fact that accused had tried to commit sodomy with the deceased. Also submits that F.I.R. Was recorded after due deliberation and consultation, that except the evidence of last seen when according to the prosecution case appellant took the deceased with him, there is no other evidence on record against the appellant and that case of the prosecution is full of doubts. He has relied upon 1984 PCr.LJ 2463 and 1996 PCr.LJ 109. Concluding his arguments, learned counsel submits that investigation in this case is dishonest, that prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
7. On the other hand, learned counsel for the complainant assisted by learned counsel for the State submits that F.I.R. Was lodged promptly, that F.I.R. Also discloses the name of the accused and the role played by him, that ocular account is corroborated by medical evidence, that the swabs taken from outside of anus were found to be positive, that recovery of Chhurri on the pointation of the appellant was also found to be stained with human blood, that there was also evidence of extra judicial confession and in this regard statement was given by Abdul Latif P.W.8, though the learned trial Court had not believed the same, that there was no previous background of enmity between the parties, that in fact deceased, complainant on the one side were first cousin of the present appellant and that there was no reason of false implication of the appellant. He supports the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the evidence with their able assistance. First of all we would like to mention relationship of the parties, which was mentioned on the day of occurrence i.e, 27-7-1998, deceased and complainant on the one side were first cousin of the present appellant. Occurrence in this case had taken place on 27- 7-1998 after "Mughrab Prayer". Deceased was taken from his house in the presence of Abdul Rashid complainant (P. W .5), Yas in (P.W.6), Anwar and Ashraf both given up P. Ws. After some time they heard shriek of the deceased and came out of the house and saw the deceased in an injured condition. On questioning the deceased, it was told to them by the deceased that when he was taken by the appellant Muhammad Asif, he tried to commit sodomy with him and on his refusal, he was given blow in his abdomen, then he ran away to save his life, he was followed by the appellant and given four injuries on his back, which latter on, resulted into his death. This statement of the deceased was mentioned in the F.I.R., so it has become a dying declaration. The injuries given in the F.I.R. Has also been mentioned by the doctor, who had conducted post-mortem examination on the dead body of the deceased. The time between injury and death has been given as 1/2 hour, which also coincides with the time of occurrence. Later on, two other accused, which were not named in the F.I.R., namely, Muhammad Akram and Abid Hussain were also arrested and against them there was only extra-judicial confession and no other evidence but the learned trial Court did not believe the same and acquitted them, even their acquittal had not been challenged either by the complainant or by the State before this Court. After the arrest, appellant got recovered Chhurri, which according to the reports of Chemical Examiner and Serologist was found to be stained with human blood.
' There is another very important factor in this case that's on the very same day, the doctor, who conducted postmortem examination on the dead body pf the deceased on 28-7-1998, he took the swa bs from the anus of the deceased, sent the same to the Chemical Examiner and according the report of Chemical Examiner Exh.P.O. The said swabs were stained with semen's. This is a case of single accused, so there was no question of substitution because substitution is a rare phenomenon. In a case of such-like nature, the kith and kin of the deceased would not spare the actual culprits rather to involve an innocent person. In this view of the matter, we have no hesitation in our mind to say that prosecution has proved its case against the appellant beyond any shadow of doubt, there is no mitigating circumstance in favour of the appellant, his act is a brutal one, he tried to commit sodomy with him and then committed his murder. Resultantly, the appeal filed by the appellant is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained. His death sentence is confirmed and murder reference is replied in affirmative.