1. This appeal is directed against the judgment dated 25.2.2004 passed by the Additional Sessions Judge, Bahawalpur whereby the appellant was convicted under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years R.I. He was also convicted under Section 377, P.P.C. and sentenced to seven years R.I. plus a fine of Rs, 30,000 or in default to further undergo three months' R.I. Both the sentences were ordered to run concurrently. Benefits under Section 382-B, Cr.P.C. was extended to him. It may be mentioned that co-accused of the appellant namely, Khizar Hayat and Asif Kamal were tried by a Court under Juvenile Justice System Ordinance, 2000 and were convicted. They filed appeal before High Court which was disposed of. The case of the appellant was separated and tried by the learned Additional Sessions Judge and he was ultimately convicted through the judgment, impugned herein.
2. Regarding the alleged occurrence F.I.R. (Exh. P.A) was registered at Police Station Baghdad-ul- Jadeed on 8-8-2001 at the instance of Ishfaq Hussain P.W.3. He contended that on 7-8-2001 he went for a walk in the evening time in the Commercial Area Satellite Town Bahawalpur with his minor son Usama Ishfaq aged about ten years. Noshad appellant took Usama Ishfaq with him on the pretext of playing video game in the Commercial Area. The complainant searched for the son and he came across Muneer P.W.2 and Ilyas (not produced) who informed him that they had seen his son with the appellant on a bicycle near the house of one Farhat Kamal. The complainant went there and heard alarm of the child coming from inside the Baithak. The complainant and his companions peeped into the room through window and found Khizar Hayat (co-accused of the appellant) committing sodomy upon Usama Ishfaq. The complainant knocked at the door whereupon the three accused inclusive of the appellant ran away through the other door. After investigation the appellant and his co-accused were ehallaned to Court.
2. 3.In the case against the appellant, the complainant appeared as P.W.3 and deposed in support of the prosecution case as divulged in the FIR. He was cross-examined at some length but nothing substantial could be gained for the defence.
3. 4.Usama Ishfaq appeared as P.W.1. He gave his age as nine years. The learned trial Judge put certain questions to him and after being satisfied about his rational answers declared him competent to depose about the occurrence. He was administered oath whereafter he gave the details of the unfortunate occurrence in which he was subjected to sodomy not only by the appellant but also his companions namely Asif Kamal and Khizar in the Baithak. This witness was also closely questioned about the occurrence. The learned counsel for the appellant has taken me through his deposition and I find that the witness stood his ground and gave consistent and cogent replies to all the questions.
4. 5.Muneer Ahmed P.W.2 deposed that he accompanied the complainant to the house of Asif Kamal in search of Usama Ishfaq and saw the occurrence from outside the Baithak through window. The appellant and his co-accused succeeded in making their good escape.
5. Significantly, not a suggestion of enmity was put to him which could cast doubt qua the veracity of his statement.
6. Dr. Umar Farooq C.M.O. B.V.H. Bahawalpur appeared as P.W. 6 and declared the appellant fit for sexual intercourse, vide his medico-legal report Exh.P.F.
7. 6.Dr. Muhammad Javed Akhtar, D.M.S., B.V.H. Bahawalpur P.W.7 examined the victim and found the following injuries on his person:-- (1)There was an abrasion 3 c.m x 2 c.m in the left knee.
8. (2)On local anal examination there was a laceration 1 c.m x 1 c.m. in the anal canal at 12-00 0' clock position and examination was painful. Samples of internal and external anal swabs taken and sent to Chemical Examiner, Multan for the detection of semen.
9. He was of the opinion that the victim had been subjected to sodomy. He proved his medico-legal report Exh. P.G. It may be mentioned at this stage that report of the Chemical Examiner (page 48 of the paper book) was in the positive.
10. 7.The appellant, in his statement under Section 342, Cr.P.C. mentioned his age as 22/23 years.
11. While denying the prosecution story as a whole, he took up the plea that he was falsely implicated in the case. According to him he was present at the relevant time in Tahir General Store Zanana Hospital Bahawalpur. He claimed to be cousin of Asif Kamal co-accused. He produced Habib Ahmed as. D.W.1 who stated that on the day occurrence the appellant remained present at his general store till 10/11 p.m. Perusal of his cross-examination showed that he was not aware about the registration of the case against the appellant and' he learnt about it on 11.2.2001 when he was arrested. The appellant, in his .statement under Section 340 (2), Cr.P.C. reiterated his plea of being present at General Store on the day of occurrence at the relevant time. He conceded that he had no enmity either with the victim or his parents. Same was his position qua Munir Ahmad P.W. and.
12. 8.After going through the evidence on record with the assistance of the learned counsel for the parties.l find that the prosecution had succeeded in proving its case against the appellant beyond any shadow of doubt.
13. On his own showing, the appellant was not on inimical terms with the complainant party. No explanation is forthcoming as to why they would falsely implicate him in the case. The statement of the victim found due corroboration from the deposition of his father as well as Munir Ahmad P.W.
14. The medical evidence furnished further support to his stance. The plea of alibi raised by the appellant is not convincing. It appears that he manipulated with Habib D.W. to give evidence in his favour so as to save his skin.
9. The learned trial Judge, after careful perusal of the evidence, correctly convicted the appellant under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 377, P.P.C. The appellant was proved to have taken Usama Ishfaq for quite some distance to the Baithak on 7-8-2001 for illicit purpose. Commission of offences under Section 12 of the Ordinance and Section 377, P.P.C. by the appellant are proved on record.
10. The appellant was a youngster, aged less than 20 years at the relevant time, and his co- accused had already been dealt by the High Court leniently qua their appeal (by awarding sentences of three years' R.I. page 54 of paper book). Therefore, while maintaining his conviction under both counts his sentences are reduced from ten years' R.I. to 3-1/2 years' R.I. The amount of fine is also reduced from Rs, 30,000 to 15,000. Both the sentences are directed to run concurrently.
15. The benefit of Section 382-B, Cr, awarded by the trial Judge, shall remain intact. There are the reasons for the short order, dated 1-4-2005.