' HAZIQUL KHAIR1, C.J.--- These two Criminal Appeals No,45/L of 2006 filed by appellant Ansar All son of Faqir Sain and Appeal No,47/L of 2006 filed by appellant Samar Abbas son of Muhammad Abbas have been directed against the judgment, dated 16-2-2006, whereby both the appellants were convicted under section 377, P.P.C. And sentenced to undergo four years' R.I. Each along with a fine of Rs,20,000 each or in default thereof to further undergo two month' R.I. Each. Both the appellants were extended benefit under section 382-B, Cr.P.C.
2. Briefly the facts of the case are that on 31-12-2003 at 2-40 p.m. Muhammad Maqsood, father of victim, Asad Maqsood received the information that his son Asad Maqsood, aged 13 years was standing beside Clinic of Dr. Shah when Sammar Abbas, Ansar Ali and Atta Moin-ud-Din alias Nika took his son towards Nala Aik. He along with Ghulam Raza started searching for Asad Maqsood and when they reached near Nala Aik at about 3'O Clock, they heard his shrieks and saw that Atta Moin-ud-Din alias Nika was standing nearby and saw that Samar Abbas, Ansar Ali, appellants were committing sodomy with his son while their Shalwars were lying on the surround. They tried to catch hold of them but all the three accused ran away successfully. He further stated that efforts for compromise were made therefore, he lodged F.I.R. Against the appellants on 4-1-2004.
3. Both the appellants were charge-sheeted to which they pleaded not guilty and claimed trial.
4. The prosecution examined ten witnesses. P.W.1 Muhammad Maqsood complainant reiterated the contents of F.I.R. In cross-examination, he stated that he did not inform the police for a period of three days after the occurrence. During this period his son remained with him and he changed his clothes and also took bath. He further deposed that he had not produced the clothes worn by his son at the time of occurrence. He denied that there was a dispute between him and father of the accused Samar Abbas. He admitted that there was a dispute relating to wall between Ashraf, uncle of appellant and one Pervin, daughter of Muhammad Hussain and sister of D.W.1 Raza Abbas. He apprehended accused Samar and Ansar the next morning of 'the occurrence from their houses and took them to their father who was not available. He voluntarily stated that the accused requested him to forgive them and that "Punchait" for compromise was held 2/3 days of which Nawab, Faqir Sain, Ashiq and Sajjad Hussain Shah and others were members. P.W.2 Asad Maqsood, victim corroborated the version of his father, the complainant. He further stated that he was medically examined after three days of the occurrence and during these days he had been taking food and also going to toilet. In cross-examination he stated the position in which sodomy was committed by the appellant. He further stated that the accused did not torture him to put off his Shalwar but they did put off his Shalwar whereupon he made noise. P.W.3 Dr. Fayyaz Ahmed, S.M.O.
Conducted medical examination of Asad Maqsood, victim and found that he was a young boy aged approximately 13 years. As for external examination anus revealed two partially healed lacerations one each at 3'O Clock and 12'O Clock position. On receipt of report of the Chemical Examiner, he opined that swa bs were stained with semen. He admitted in his cross-examination that there were two partially healed lacerations on the inner side of anus and no blood on the anus was found as four days had passed. P.W.4 Dr. Asif Sajjad, Medical Officer conducted medical examination, Exh.P.E., of appellant Samar Abbas and found him fit for sexual intercourse. P.W.5 Dr. Munawar Hayat Uppal, M.O. Medically examined appellant Ansar Ali and found him potent vide Exh.P.G. P.W.6 Dr. Fakhar-ul-Zaman, S.M.O. Examined Atta Moin-ud-Din, accused and found him potent vide Exh.P.I. P.W.7 Muhammad Ilyas, S.-I. Arrested appellant Ansar Ali on 31-1-2005 and got him medically examined. P.W.8 Muhammad Yousaf, retired Police Man deposited one sealed envelope and two phials in the office of the Chemical Examiner, Lahore intact. P.W.9 Muhammad Arshad, Head Constable No,718 stated that he was entrusted non-bailable warrants of arrest of appellant Ansar Ali. P.W.10 Rana Zulfiqar Ali, S.-I./S.H.O. Is Investigating Officer of the case. C.W.1 Asif Mehmood, Inspector partially investigated the case.
5. Appellants were examined under section 342, Cr.P.C. To which they pleaded not guilty. Appellant Ansar Ali stated that this was a false and fabricated case registered against him. There was previous grudge and enmity between the parties. The P.Ws. Were interested witnesses and were inimical towards him. They had falsely deposed against him just to support the cock and bull story of the complainant. The complainant/ prosecution himself had given up one of the P.Ws.
Independent eyewitness. Appellant Samar Abbas also took the same plea of innocence as appellant Ansar Ali. Both the appellants did not opt to make statements under section 340(2), Cr.P.C. However, they produced D.W.1 Raza Abbas who was named as Ghulam Raza as witness to the sodomy in F.I.R. Came out with his deposition that he had not seen any occurrence as alleged by the prosecution. However, he narrated that the complainant had come to him on the date of occurrence that he was cited as witness by him to which he replied that he would not depose as prosecution witness and tell the truth. He denied the on 16-1-2004 along with other prosecution witnesses, he appeared before Asif Gondal, S.H.O. For the verification of occurrence nor appeared on 25-1-2004 before S.H.O. For verification time of occurrence nor he appeared before S.P.
Investigation Mirza Zafar Ahmad. He further stated:-- "It is correct that a criminal case was registered under section 440, P.P.C. On the instance of father of accused Atta Moin-udDin wherein my sister Parveen and the complainant, Maqsood were accused. I did not visit the Courts in connection with said criminal case as I was not present here. I was present in village. There was no compromise in the said criminal case and my sister was acquitted by the Court. It is incorrect having compromised in the said criminal case with the father of the accused Atta Moin-ud-Din with my sister."
6. I have heard Rai Muhammad Zafar Bhatti, learned counsel for both the appellants, Mr. Imtiaz Ahmed Chaudhry and Mr. Mushtaq Ahmed Bhatti, learned counsel for the State and have also perused record of the case minutely with their assistance.
7. Learned Additional Sessions Judge, Sialkot in his impugned judgment has rightly pointed out that "during the cross-examination the said D.W. Has accepted that a. Criminal case was registered under section 440, P.P.C. On the instance of father of accused Atta Moin-udDin wherein his sister Mst. Parveen Bibi and the complainant Maqsood were accused and has also accepted that he never appeared before any police official to plead the innocence of the accused during the investigation despite the fact that he was in the village having knowledge of register of criminal case against the accused. Thereafter, the fact of compromise to safe his sister in the case registered on the instance of father of accused Atta Moin-ud-Din cannot be ruled out and nonappearance of said D.W. In prosecution evidence box is not sufficient to discard the prosecution evidence as if at all the said D.W. Was such a character that he is speaking the truth then he must have appeared before investigation to prove the innocence of the accused in the instant case but he have never appeared there and how has deposed as a witness having being compromise in the case which was registered against his sister".
' I fully agree with the conclusion drawn by the learned Additional Sessions Judge, Sialkot in respect of deposition of the said D.W.
8. Now reverting to the prosecution case, indeed, a "Punchiat" was constituted in the village for compromise but once an F.I.R. Has been registered by the complainant in respect of an offence which is a heinous crime in the eyes of law against the society and the State the so-called efforts for compromise between the parties fade into insignificance. The A defence has not been able to create any doubt worthy noticing into the deposition of the victim namely Asad Maqsood P.W.2.
The deposition of his father Muhammad Maqsood, P. W.1, also appears to be truthful and sound, whereas medical and chemical reports have remained irrebutable and support the case of the prosecution.
9. Accordingly both the appeals are dismissed. The conviction and sentences awarded to both the appellants by the learned Additional Sessions Judge, Sialkot are maintained. However, benefit under section 382-B, Cr.P.C. Extended by the learned trial Court shall remain intact.