' MUHAMMAD ZAFAR YASIN, J.--- Through this appeal, appellant Muhammad Azam Shah has challenged his conviction and sentence recorded by the Additional Sessions Judge, Rahim Yar Khan vide judgment dated 12th of July, 2004 whereby the appellant has been convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to life imprisonment with fine of Rs,20,000 or in default one year's R.I. And also further convicted under section 377, P.P.C. And sentenced to 10 years' R.I. With fine of Rs,10,000 or in default six months' S.I.
The appellant has also given benefit of section 382-B, Cr.P.C.
2. The brief facts as given out in the complaint Exh.P.A. Made by Faiz Ahmad (P.W.2) reads as under:--- "7/8 days prior to 4-7-1996 accused Muhammad Azam Shah knocked at the door of the complainant where, Ijaz Ahmad the step-son of the complainant, met him to whom the accused had asked that he has some matter with Mumtaz Fareed (victim) P.W.1 (aged 15/16 years), therefore, he be asked to come out. Thereupon the said Ijaz sent the victim Mumtaz Freed out of the house who did not come back. The complainant suspected the matter and went out in search of his son along with Ijaz Ahmad and went to the house of Muhammad Azam Shah accused, but he was not at home. The complainant Faiz Ahmad reached near Adda Janpur where he was told by P.Ws. 4 and 5 i.e. Muhammad Bakhsh and Wahid Bakhsh that they had seen accused Muhammad Azam Shah and his companion Khawar Hussain Shah who were taking Mumtaz Fareed in a car towards Bahawalpur. Thereafter the complainant went to the elders of the Muhammad Azam Shah who had been promising to return the victim but ultimately last evening they denied to help the complainant, while today in the morning Mumtaz Fareed was left near his home and had come back. Mumtaz Farid had told that in a graveyard near his house Muhammad Azam Shah and Khawar Shah put him in a car at pistol point and a handkerchief was put on his mouth and thus he became unconscious. In the next morning he found himself in the Dera of Khawar Hussain Shah accused situated at Uch Sharif. The accused had confined him in a room for 5/6 days and both of them had been committing sodomy with him. Today they have left him in a white colour car near his house. Hence action be taken against Muhammad Azam Shah son of Ghulam Hussain Shah and Khawar Hussain Shah residents of Uch Sharif under the law and grievance of the complainant be redressed.
3. The F.I.R. Was lodged on 4-7-1996. After registration of the case, investigation of the case started.
The victim was got examined medically by Dr. Ihsan Peerzada P.W.3 on the same day and further the Investigating Officer recorded the statement of the P.Ws. Under section 161, Cr.P.C. All the P.Ws.
As well as the victim and complainant had stated before the police that along with Muhammad Azam Shah, his co-accused was one Khawar Shah by name but not Khawar Shah son of Manzoor Hussain Caste Syed resident of Uch Sharif. In view thereof Khawar Shah son of Manzoor Hussain Caste Syed resident of Uch Sharif was found innocent by the Investigating Officer and only Muhammad Azam Shah accused was challaned to face the trial.
4. The accused was charge-sheeted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as under section 377, P.P.C. By the trial Court, but the accused pleaded not guilty and claimed trial. Thereupon. The prosecution produced as many as seven witnesses and also tendered in evidence Medico-Legal Report Exh.P.B., injury statement of the victim Exh.P.C., site plan Exh.P.E. To prove its case. Thereafter the statement of the accused was also recorded under section 342, Cr.P.C. Wherein the appellant took the plea that he has been falsely implicated in this case because the P.Ws. Are the relatives of the complainant, and also inter se related and he has been involved in this case on the asking of Malik Azeem Bakhsh Naicfi, Ex- Member District Council, who is an accused in a murder case of his real brother Gohar Shah. This case has been registered against him just to pressurize him to effect compromise in the murder case of his brother in which Malik Azeem Bakhsh along with, his real cousin, and other brotheri members are the accused persons. The appellant also tendered in evidence Exh.D.A. Statement of Mumtaz Fareed recorded under section 161, Cr.P.C. Exh.D.B. Statement of Muhammad Azam Shah recorded in murder case and Exh.D.C. Judgment of Additional Sessions Judge in the said murder case and closed his defence evidence.
5. On the basis of the evidence, the learned trial Court convicted and sentenced the appellant as noted above.
6. Learned counsel for the appellant has argued that though the F.I.R. Was lodged on the same day when the alleged victim had come back but he did not produce his Shalwar, which he had been wearing during 6/7 days to show that it was stained with semen or blood. Hence, there is no corroborative evidence. Further argued that there is delay of 7/8 days in lodging the F.I.R. From the date of alleged abduction which has not been satisfactorily explained by the complainant. Further argued that the complainant as well as the victim had categorically named Khawar Hussain Shah son of Manzoor Hussain Shah resident of Uch Sharif as co-accused but he has not been even challaned by the police. Furthermore, even statements of Muhammad Bakhsh P. W.4 and Wahid Bakhsh P.W.5 show that the victim was taken away towards Bahawalpur in a car by the appellants along with Khawar Hussain Shah accused but during the investigation Khawar Hussain Shah has been let off by all the witnesses and he has not even been challaned and tried. Thus on the same set of witnesses, the conviction and sentence recorded against the appellant is also not sustainable in law, particularly when there is no independent corroborative evidence. Furthermore the report of the Chemical Examiner has not been tendered in evidence to further prove that swabs were stained with 'semen. Hence the conviction and sentence is not sustainable in law.
7. On the other hand, the learned D.P.G. Has argued that the prosecution has proved its case through oral evidence which is further supported by the medical evidence wherein the Dr. Muhammad Ehsan Peerzada P.W.3 has opined on the basis of physical examination of the victim that penetration of foreign body has been done. Thus commission of offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. By the appellant has been proved by the prosecution beyond reasonable doubt.
8. Heard. Record perused.
9. As regards the commission of offence by the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the victim has categorically stated in the Court of law as P.W.1 that he was brought to graveyard situated near his house where a car was parked and he was compelled to board the car on pistol point by appellant Muhammad Azam Shah and thus he was forcibly abducted and kept in Uch Sharif for 5/6 days and had been sodomized by the appellant along with one Khawar during this period. The evidence of the victim has further been fully corroborated by two independent witnesses i.e. P.W.4 Muhammad Bakhsh and P.W.5 Wahid Bakhsh, who had seen the appellant taking away the victim with him in a car. Despite the lengthy cross-examination, nothing substantial contradiction could be brought on the record to create doubt. No doubt the investigation of this case has been conducted badly by Malik Abdur Rasheed, Inspector P.W.6 as he neither recovered the car used for commission of the offence nor he had visited Uch Sharif and Dera of Khawar Shah where the victim was kept for 5/6 days and had been sodomized by both the accused nor he took into possession the Shalwar of the victim which he had been wearing throughout 5/6 days of his absence and even did not arrest the co-accused. Despite of these lapses the prosecution has fully proved the commission of offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the appellant Muhammad Azam Shah and the conviction of the appellant under section 12 of the Ordinance is in accordance with law.
10. As regards commission of offence under section 377, P.P.C. By the appellant, the victim P.W.1 is the star witness. He has stated that the appellant Muhammad Azam Shah has been committing sodomy with him during the period of 5/6 days when he was kept at Uch Sharif. Nothing material could be brought on record in the cross-examination of the victim. The evidence of the victim, who is aged 15/16 years and was student of 8th Class at the time of occurrence has been fully corroborated by the medical evidence. P.W.3 Dr. Ihsan Peerzada on the local examination of the victim observed as under-- ' Moderately reddish area around anus, anus is mildly swollen and tender to touch .... In my opinion penetration of foreign body (erect hard object with longitudinal body) has been done. Thus the evidence of the victim has fully been corroborated by medical evidence.
11. No doubt the doctdr had not given his final opinion about commission of sodomy with the victim and kept it pending, till the receipt of report of Chemical Examiner and the prosecution has not produced the report of the Chemical Examiner due to its non-availability, and in this respect the D.D.A. Had made statement before the trial Court on 27-5-2002; still the non-availability of the report of the Chemical Examiner is not fatal to the prosecution case as the local examination of the victim by the Doctor, it has been opined by the Doctor that penetration had taken place in the case in hand. For commission of offence under section 377, P.P.C. Penetration is enough. The victim is young 15/16 years aged boy and was student at the time of occurrence. No young person would put his own reputation at stake. Through the prosecution evidence the commission of offence of sodomy upon the victim has been fully proved and it does not appeal to the mind that the victim would let off the real culprit and substitute the appellant in the matter. In view thereof the conviction of the appellant under section 377, P.P.C. Is also in accordance with law having been proved beyond reasonable doubt.
12. However, the question of sentence awarded to the appellant needs consideration by us as the appellant has been awarded imprisonment for life under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with fine of Rs,20,000 and under section 377, P.P.C.
Sentenced to 10 years' R.I. With fine of Rs,10,000. According to the prosecution story, the appellant was not alone but along with Muhammad Azam Shah appellant his co-accused Khawar by name had been associated with him throughout for commission of offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and further keeping the victim for 5/6 days at Uch Sharif at his Dera and it has categorically been stated by the victim that he had been subjected to sodomy by both the accused persons during these days. The victim P.W.1 as well as the complainant P.W.2 for the reasons best known to them, exonerated Khawar Hussain Shah son of Manzoor Hussain Shah resident of Uch Sharif, while appearing in the Court of law though he was named in the F.I.R. And even P.W.4 and P.W.5 who had also informed the complainant P.W.2 had named Khawar Hussain Shah as one of the accused along with Muhammad Azam Shah appellant.
Thus in the circumstances of the case, we are of the view that sentence awarded to the appellant is too harsh.
In view thereof, we believe that sentence of five years' R.I. Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with a fine of Rs,10,000 in default whereof three months'
S.I. And further sentence of five years' R.I. Under section 377, P.P.C. With fine of Rs,10,000 and in default three months' S.I. With benefit of section 382-B, Cr.P.C. Would meet the ends of justice. We, accordingly, maintain the conviction of the appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. Recorded by the trial Court; and modify the sentence of the appellant Muhammad Azam Shah as under:---
(i) Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ' Five years' R.I. With fine of Rs,10,000 in default whereof three months' S.I.
(ii) Under section 377, P.P.C.
' Five years' R.I. With fine of Rs,10,000 and in default three months' S.I.
' Both the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
13. With the above modifications in the sentence, this appeal is disposed of.