' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).--- This petition is directed against judgment, dated 22-5-2002 passed by learned Federal Shariat Court, Islamabad whereby Jail Criminal Appeal No,75-I of 2000 filed by petitioner and Murder Reference No,31-I of 2002 forwarded by trial Court for confirmation of death were disposed of. Jail criminal appeal was dismissed whereas murder reference was answered in affirmative.
2. Precisely, the facts giving rise to the filing of instant petition are that on 11-9-1996 Alamdar Hussain, Inspector/S.H.O. Police Station Old Anarkali, Lahore sent a complaint to police station on the basis of which F.I.R. Was registered against petitioner under sections 302/377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance"). It was stated therein that he along with Rustam Ali, S.-I., Farman Ali, A.S.-I., constables Khaliq Hussain, Muhammad Akram, Muhammad Ashraf and Muhammad Hussain were on petrol duty on official vehicle. At about 9-30 p.m. When they reached near Syed Baba Mauj Dirya Road opposite Delhi House, they heard a noise of electric blast at which they stopped the vehicle and saw that young boy of 11/12 years has fallen from 3rd floor of the building and expired at the spot. He was naked till knees. Complainant party rushed to the building and saw a person going down from the backside of the building when the complainant along with companions and P.W.
Aftab Sheikh apprehended him after chase. He disclosed his name as petitioner Zakriya son of Aiwan Maseeh resident of Five Mcleod Road, Lahore. On interrogation he disclosed the name of deceased as Fahad Shahzad to whom he had brought from Gawal Mandi for committing sodomy.
He attempted to commit sodomy and on refusal and resistance he threw him from the building.
3. At trial prosecution in order to establish its case examined as many as 12 witnesses.
4. On autopsy of deceased Dr. Javed Iqbal Khokhar observed following injuries:- " (i) 10 x 3 c.m. Abrasion of the back in mid line, 8 c.m. Above natal left, 20 c.m. Below root of neck.
(ii) 1.5 x 1.5 c.m. Abrasion at back in sacral area in mid line, 8 c.m. Below injury No, 1.
(iii) 4 x 2 c.m. Abrasion on outer side of left chest in posterior axillary line, 12 c.m. Below axilla, 18 c.m.
Above left iliac crest.
(iv) 4 x 1 c.m. Abrasion on back of left buttock, 10 c.m. To the left posterior mid line, 1 c.m. Above left iliac crest.
(v) 1 x 1 c.m. Abrasion at the back of chest, 2 c.m. To the left of posterior mid line, 5 c.m. Below tip left shoulder.
(vi) 10 x 6 c.m. Boggy swelling at right temporal region of head 7 c.m. Behind outer angle of right eye, 1 c.m. Above right ear.
(vii) 2 x 1 c.m. Abrasion on right side of nose, 2 c.m. To the right of mid line , 3 c.m. Below right eye.
(viii) 2 x 1 c.m. Abrasion above right eye 3 c.m. To the right of mid line and 2 c.m. Above eye."
' On examination of anus of the deceased, he also found fresh tear at anal ring level at 6 O'Clock position, 0.2 c.m. x 0.5 c.m. Vertical with slight bruising around it. He also took swabs for chemical analysis. In his opinion, the cause of death in this case was damage to brain and its vessels leading to coma and death. The injury was sufficient to cause death in ordinary course of nature. The doctor also stated that anal swa bs were stained with semen. In the light of report of Chemical Examiner he opined that sexual assault was committed with the deceased.
5. On 12-9-1996 Dr. Muhammad Hamayun, Medical Officer (P.W.6) medically examined the petitioner who, according to him, was 30 years old and was capable to perform sexual act.
6. Petitioner in his statement under section 342, Cr.P.C. Denied the case of prosecution and claimed that P.Ws. Were related to the deceased and were Mohallandar and police touts as such they falsely implicated him and on his demand of money deposited with P.W. Aftab Sheikh for the last 4 years, he refused to pay the same and implicated him in this case. He stated that 10/15 days prior to the occurrence, a quarrel between him and father of deceased over parking of rickshaw in front of their house. According to him, in fact deceased has fallen from roof while flying kites. However, he neither examined himself on oath as required under section 340(2), Cr.P.C. Nor led any evidence in his defence.
7. On the conclusion of trial, petitioner was found guilty of the offence under sections 302, 377, P.P.C.
And 12 of the Ordinance and sentenced as stated below:--
(1) Under section 377, P.P.C. -- sentenced to life imprisonment with fine of Rs,50,000 or in default whereof to undergo 6 months' R. I. ;
(2) Under section 302(b), P.P.C. - sentenced to death with direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased; and
(3) Under section 12 of the Ordinance - 25 years' R.I. Sentences were ordered to run concurrently.
8. We have heard Ch. Muhammad Akram, learned counsel for the petitioner at length and have gone through the record and proceedings of the case in minute particulars.
9. Learned counsel Lhough argued at length but could not point out any misreading, non-reading, non-appreciation of evidence or any illegality in the judgments of the two Courts below warranting interference by this Court. Prosecution in this case has been able to bring on record evidence of P.W. Aftab Sheikh an inmate of the locality where incident took place. He thus, being natural witness of the incident, his testimony cannot be discarded particularly in absence of any animosity with the petitioner. He has categorically stated at trial that he and police party chased the petitioner after commission of offence and apprehended him at the spot. His version has been supported from the evidence of Farman Ali, A.S.-I. (P.W.3), Alamdar Hussain, Inspector/S.H.O. (P.W.10), Muhammad Hanif Junior S.-I. (P.W.8), Liaquat Ali H.C. (P.W.7) and Khaliq Hussain Constable (P.W.4) who also deposed that on the day of occurrence at about 9-30 p.m. While they were patrolling at Mauj Darya Road area, they heard a noise of electric blast, at which he stopped the vehicle and saw a young boy of 11/12 years of age had fallen down from the third storey of Dehli House building and expired at the spot who was naked till knees. They immediately rushed towards that building and saw a person coming down from the building who was apprehended with the help of Sheikh Aftab Ahmad. On interrogation he disclosed that he brought the boy from Gawal Mandi for committing unnatural offence with him and he further told that he threw him from third storey of the building. Thus, the ocular version of Sheikh Aftab Ahmad stands fully supported by the police officials. The ocular version is also supported by Dr. Javed Iqbal Khokhar (P.W.12) who stated that boy was subjected to sexual assault and after that he was thrown from the building resulting into the injuries mentioned above. Chemical Examiner report further corroborates that swabs taken from the body of the deceased were stained with semen.
10. For what has been discussed above, we are of the view that prosecution has fully established its case against petitioner. Accordingly, the petition being devoid of force is dismissed and leave to .
Leave to .