' MUHAMMAD FARRUKH MAHMUD, J.--- This petition seeking leave of this Court, is directed against the judgment, dated 15-7-2008 handed down by learned Federal Shariat Court in case F.I.R. No,275 of 1996, registered at Police Station City Hafizabad, on 5-7-1996 for offence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with offences under sections 377 and 302, P.P.C., whereby the appeal filed by Akbar petitioner was dismissed, and the convictions and sentences recorded by the learned trial Court, which were as follows, were confirmed:---
(i) The petitioner was convicted for offence under section 12 of offence of Zina and was sentenced to death.
(ii) He was convicted for offence under section 377, P.P.C. And sentenced to imprisonment for life, fine of Rs,20,000 was also imposed upon the convict in default to payment thereof the convict was to suffer 6 months' S.I.
(iii) He was also convicted for offence under section 302(b), P.P.C. And sentence to death. He was also to pay compensation of Rs,50,000 to the legal heirs of the deceased in default of payment thereof he was to suffer 6 months' S.I.
2. The case was registered on the statement of Muhammad Suleman Shahid (P. W.8) father of deceased Imran Munnoo. The relevant facts are that Imran deceased son of complainant was mentally retarded. On 30-6-1996 he was playing outside his house when Akbar appellant who also lived in the same Mohallah, took away Imran deceased to a deserted place and committed sodomy with him. Due to the act of the petitioner Imran deceased fainted and after coming into senses narrated the incident to his father, who reported the matter to the police.
3. Due to the act of the petitioner the deceased received serious injuries, he was admitted in the hospital, unfortunately he could not survive and died on 6-7-1996 due to injuries.
4. During trial prosecution examined 12 witnesses in support of its case. Muhammad Suleman Shahid (P.W.8), father of the deceased, appeared before the learned trial Court and stated in accordance with the F.I.R. Muhammad Akram (P.W.4) stated that on the fateful day i,e, 30-6-1996 he saw Imran deceased in the company of Akbar petitioner. Muhammad Ashraf (P.W.5) corroborated the statement of P.W.4. Dr. Shaukat Mumtaz (P.W.6) stated that he conducted post- mortem examination on the dead body of Imran who was aged about 15 years. His opinion is being reproduced as under:--- "In my opinion the cause of death in this case was due to cardio respiratory failure as a result of septicaemia due to peritonitis which in turn occurred as result of intestinal obstruction leading to .Perforation as to result of trauma and inflamation to anal canal and rectum that proved fatal and sufficient enough to cause death in ordinary course of nature. Time between injury and death was about one week, while time between death and postmortem examination was from 12 to 18 hours."
' This P.W. Also examined the petitioner on 19-7-1996 and found him fit to perform sexual intercourse.
' Dr. Capt. Muhammad Arif (P.W.2) stated that he examined Imran on 2-7-1996 for sodomy test. His findings are being reproduced as under:--- "(2) On examination the posterior wall of inner canal had an abraded contusion, 1 c.m. x 4 c.m. In size. It was tender and slightly swollen. Three anal swabs were taken, sealed in a bottle and handed over to the said Zahoor Abbas 133/C of Police Station City Hafizabad.
(3) There was no other mark of injury on the body of said Muhammad Imran. The opinion was not declared and was deferred till the receipt of report of Chemical Examiner, Punjab, Lahore.
(4) The probable duration of injury was about 2 to 3 days Exh.P.B. Is the correct carbon copy of my medico-legal examination which is under my hand signature and seal of the office.
(5 ) The report of the Chemical Examiner Exh.P.C. Was received which I have perused and according to the said report Exh.P.C. The swabs sent for chemical examination were found stained with semen.
(6) Opinion ' In view of the report of the Chemical Examiner Exh.P.C. In my opinion the act of sodomy was committed with above-mentioned Imran.
5. Mubashar Hussain S.-I. (P.W.11) stated about the registration and investigation of the case. The rest of the witnesses, being formal, need not be discussed.
' In his statement recorded under section 342, Cr.P.C. The petitioner claimed to be innocent and stated that he was involved in the case due to his enmity with the complainant. The petitioner did not appear in his defence under section 340(2), Cr.P.C. Nor produced any defence evidence.
' The learned counsel appearing on behalf of the petitioner, after arguing the case at some length, summed up his argument by praying that the petitioner did not deserve the capital punishment in the circumstances of the case.
6. Conversely it has been argued that the petitioner did not deserve any leniency who subjected a 15 years old boy to sodomy which caused his death. It was further argued that the petitioner was rightly sentenced to death as the victim was mentally retarded.
7. We have heard the learned counsel for the parties and have scanned the record of the case. The statement of P.W.;8 who is unfortunate father of the deceased is based on the statement of deceased himself which he made before his father while he was injured and had been subjected to sodomy. No reason exists to doubt the statement of P.W.8 which is fully supported by the medical evidence and corroborated by the circumstances of the case. There is nothing on record to show as to why complainant and victim should depose against the petitioner. The prosecution has proved its case through reliable evidence against the petitioner beyond any doubt.
' Having come to this conclusion we have given our anxious thought to the quantum of sentence.
Admittedly, Imran lost his life due to injuries caused to him during sexual intercourse. It is nobody's case that the petitioner was armed or caused any injury with a weapon to the deceased at the time of occurrence. The circumstances of the case to the conclusion that the intention of the petitioner was to satisfy unnatural lust with the victim, without having any intention to cause his murder. The act of the petitioner amounts to culpable homicide not amounting to murder covered by Exception 4 of section 300 (old), P.P.C. The Exceptions given in section 300 (old), P.P.C. Can be looked into by us. The judgment of this Court in the case of Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 is referred to on this context. The relevant para of the judgment is being reproduced:- "29. The new section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories:--
(1) Qatl-i-Amd which is punishable with death as Qisas;
(2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and
(3) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
' Section 302 of the P.P.C., therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. Read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P. P .0 . "
8. In the above noted circumstances we alter the conviction of the petitioner from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C., and sentence is reduced to 14 years'
R.I. The convictions and sentences recorded under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. Are maintained. However; sentences are reduced in both the offences to 14 years' R.I. All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. Is given to the petitioner. The amount of compensation and fine inflicting upon the petitioner, are maintained. The judgments passed by the learned Courts below are modified accordingly. With the above noted modification relating to reduction of sentence this petition is converted into appeal which is partly allowed.