Agha Rafiq Ahmed Khan, CJ.--Appellants Aas Muhammad and Muhammad Irfan have through two separate appeals registered as Jail Criminal Appeal No, 81/I of 2006 and Jail Criminal Appeal No, 35/I of 2008 challenged two judgments dated 06.04.2006 delivered by learned Additional Sessions Judge Chunian, District Kasur. Jail Criminal Appeal No, 35/I of 2008 arises out of Sessions Case No, 13 of 2005 Sessions Trial No, 7 of 2005 in which both the appellants were charged under Section 302 read with Section 34 of Pakistan Penal Code whereas Jail Criminal Appeal No, 81/I of 2006 is the result of conviction and sentence recorded in Hudood Case No, 22 of 2005 Hudood Trial No, 23 of 2005 by the same trial Court in which both the accused were charged under Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as Section 377 read with Section 34 of Pakistan Penal Code. Both the trial were held separately and two separate judgments were delivered by the learned trial Court.
2. Both the appellants were convicted under Section 302(b) of Pakistan Penal Code and sentenced to death each with a direction to pay compensation of Rs,50,000/- to the legal heirs of deceased Nadeem under Section 544-A of the Code of Criminal Procedure and in default whereof to further undergo six months simple imprisonment each. Both the appellants were also convicted under Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well and sentenced to 25 years rigorous imprisonment each with a fine of Rs, 10,000/- each and in default whereof to further suffer three months simple imprisonment each Abbas Muhammad alone was convicted under Section 377 of Pakistan Penal Code and sentenced to 10 years rigorous imprisonment and to pay a fine of Rs, 10,000/- and in default of payment of fine he was ordered to suffer three months simple imprisonment. Benefit of Section 382-B of the Code of Criminal Procedure was granted to both and sentences on both counts were directed to run concurrently.
3. Both the appeals have however arisen out of FIR. No, 284 dated 16.08.2004 registered at Police Station Changa Manga District Kasur. The local police opted to send separate reports under Section 173 of the Code of Criminal Procedure in the trial Court: the one under Section 377 PPC read with Section 12 of Ordinance VII of 1979 was submitted on 31-08-2004 by SHO Changa Manga whereas the second report under Section 302/34 was received by the trial Court through District and Sessions Judge Kasur on 26.05.2005. Consequently two separate trials were held on the basis of two separate reports and two separate judgments were resultantly recorded by the learned trial Court on the same date. Both the impugned judgments are, therefore, being disposed of through this judgment.
4. The Federal Shariat Court as well as by the Honourable Supreme Court of Pakistan in Re Dr. Munawar Hussain vs. Dr. Muhammad Khan, District Health Officer, Sargodha PLJ 2005 S.C. 64, Muhammad Abbas and another us. The State 1984 SCMR 129 and Muhammad Sharif vs. The State PLD 1999 S.C. 1063 have held that the Federal Shariat Court has exclusive jurisdiction to hear matters provided in Chapter 3A of the Constitution as well as cases in which the accused has been charged under Hudood Law or where offence under Hudood Law is disclosed. The Jail Criminal.
Appeal No, 35/I of 2008 arises out of a Sessions Trial in which the appellants were charged under Section 302 read with Section 34 of Pakistan Penal Code and there was no charge under Hudood Laws but the charge of murder was a consequence of the Hudood Offence and the appellant was duly charged and convicted for offences falling under Hudood law in the connected trial. No prejudice has been caused to the appellants though the two trials emerged out of the same crime report because separate charge for each distinct offence was framed by the learned trial Court against the appellants and separate trial was held for two different charges as contemplated by Section 233 of the Code of Criminal Procedure.
5. The Sliariat Appellate Bench of the Supreme Court of Pakistan in the case of Inayatullah versus The State reported as PLD 2007 Supreme Court 237 (at page 243) held as follows:-- "It is a settled law that the appellate Court has all the powers to convict the accused person not charged in the trial Court in view of Sections 236, 237, 238 of Cr.P.C. read with Section 423 of the Cr.P.C. See Rama Swamy Nader's case (PLD 1958 SC (India) 247)."
6. The provisions of the Code of Criminal Procedure are applicable mutatis mutandis in respect of cases arising under the provisions of Offences Against Property Ordinance, 1979 in view of Section 24 of the said Ordinance. Therefore, Federal Shariat Court can examine question of fact and law and can quash, confirm, modify or enhance sentence. It is also a settled law that powers of the appellate Court to alter a conviction are very wide under Section 423 of the Code of Criminal Procedure but they are subject to the condition that the altered conviction should not be such which could not have been recorded by the trial Court. In the present case trial Court had the power to award capital punishment. The judgment of this Court would be in accordance with law as laid down in the case of Inayatullah (supra) based upon following judgments:--
(i) Begu's case (1925 ILR 6 Lahore 226 (PC)
(ii)Wallu's case (1923 ILR 4 Lahore 373)
(iii)Gauns's case (1926 ILR 7 Lahore 561)
(iv)Nur Muhammad's case (AIR 1945 PC 151)
7. Commission of more than one offence is possible in one transaction and if the crime report under Section 173 of the Code of Criminal Procedure reflects more than one offence then it inconvenient for the parties if a single report is submitted in the trial Court to avoid multiplicity of trials in the same cause of action with the same set of evidence available with prosecution. This is the reason why exceptions by way of sections 234 through 240 of the Code of Criminal Procedure were created so that the same set of witnesses are saved the botheration of appearing at more than one trial arising out of the same transaction. However as noted above no prejudice was caused to the appellants. The latter did not claim any prejudice having been caused either during trials or during the disposal of these appeals. There is consequently no failure of justice in these trials. However it is time this aspect is looked into by the learned Prosecutor General Punjab for proper advice to the concerned quarters. Two trials could have been avoided in this case and one judgment by the learned trial Court would have clinched the issue arising out of the same crime report dated 16-08-2004 registered with Police Station Changa Manga, District Kasur as FIR 284 of 2004. A copy of this judgment be sent to learned Prosecutor General, Punjab for necessary action.
8. Even otherwise Section 237 of the Code of Criminal Procedure enables the Court to convict a person of an offence which is disclosed in the evidence of prosecution and for which the accused could have been charged with though he was not actually charged for that offence. Reference the case of Swab Gul vs. The State, PLD 1959 Lahore 655 (para 8 of the report at page 660); as well as Jehanzeb Khan vs. State PLD 1963 Peshawar 145. Section 423 of the Code gives ample powers to the appellate Court to alter the finding and the only limitation is that the altered conviction should not be such which could not have been recorded by the trial Court. Reference Mirza versus Crown reported as PLD 1952 Lahore 11 (at page 22) erroneously reported at page 609 of the same PLD volume.
9. Brief facts of the case as mentioned in the crime report (FIR 284/2004) are that on 16.08.2004 accused Aas Muhammad, maternal nephew of complainant Imam Din, accompanied by his friend Muhammad Irfan went to see the complainant. They asked the latter to provide them food as they had to go for work. The accused remained at the house of complainant till 5.30.p.m. when they took Nadeem aged about 07 years minor son of the complainant with them on the pretext of eating guava. The child did not return. The complainant alongwith P.W.5 Muhammad Sharif and Muhammad Aslam Khan (given up P.W) went out to locate the child. They heard hue and cry of Nadeem in the nearby sugarcane field and found him in naked condition lying prone while accused Aas Muhammad was committing sodomy by putting one hand on the neck of the victim while accused Muhammad Irian had put his hand on the mouth of Nadeem. It is further alleged that both the accused had committed unnatural offence with his son turn by turn, as a result whereof the child had become unconscious. The complainant also alleged that both the accused threatened the complainant party with dire consequences and fled away through sugarcane crop.
The complainant and others lifted the child but the child died before medical aid could.
10.Investigation of the case was undertaken by Liaqat Ali Sub Inspector P.W.10. On 16.08.2004 he heard about the incident and reached Kot Chand Khan Mashmoola Chak No, 17 alongwith other police officials. He recorded statement of complainant Imam Din, Ex. PC, and sent the same to police station through Muhammad Ilyas Constable for formal registration of FIR. He visited the place of occurrence and prepared rough site plan Ex.PI, recorded statements of witnesses under Section 161 of the Code of Criminal Procedure and verified the occurrence from respectables of the area who had gathered there. He prepared injury statement Ex.PG of the victim, inquest report Ex.PE and sent the dead body for postmortem examination to Tehsil Headquarters Hospital Chunian. He searched the accused but they could not be traced. The DSP/SDPO reached the spot in the meantime who issued directions to the Investigating Officer to arrest the accused. The witness took into possession the last worn shalwar P3 of Nadeem deceased and deposited the same with Moharrar for safe custody in the Malkhana. He arrested Aas Muhammad and Muhammad Ifran accused on 29.08.2004. At the time of arrest one .8mm rifle P1 was recovered from the possession of accused Aas Muhammad which was taken into possession vide memo. Ex.PA. The Investigating Officer got medically examined both the accused regarding their potency. On 30.08.2004 both the accused, were remanded to judicial custody on the initiation of Investigating Officer who then handed over the file to the SHO for completion of report under Section 173 of the Code of Criminal Procedure and submission in the Court requiring the accused to face trial.
11.The prosecution in order to prove its case produced 08 witnesses at the trial in Jail Criminal Appeal No,81/I of 2006 and 10 witnesses in Jail Criminal Appeal No, 35/I of 2008. The gist of statement of witnesses for the prosecution is as follows:--
(i) Abdul Ghafoor, Constable No,719 appeared as P.W.1 and deposed that on 26.08.2004 Muhammad Arshad Moharrar of the police station handed over to him one sealed envelope and one sealed phial for onward transmission to the office of Chemical Examiner, Lahore which he delivered in that office intact on the same day.
(ii) Muhammad Arshad, Constable No,662 as P.W.2 stated that on 17.08.2004 the Investigating Officer handed over to him ore sealed envelope and one sealed phial for safe custody in the Malkhana. On 26.08.2004 he handed over the same to Abdul Ghafoor, Constable No,719 for onward transmission to the Office of Chemical Examiner Lahore.
(iii) Imam Din complainant/father of victim Nadeem appeared as (sic).
(iv)Muhammad Sharif P.W.4, is an eye witness of the occurrence. He corroborated the statement of Imam Din complainant.
(v)P.W.5 Muhammad Pervaiz is a witness of recovery of pistol .32 bore and a .8 mm rifle. He also stated that the Investigating Officer took the rifle P1 and pistol P2 into possession in his presence vide recovery memos. Ex.PA and Ex.PB and he attested both the memos.
(vi)Muhammad Hanif, Sub-Inspector appeared as P.W.6 and deposed that on 16.08.2004 he, on receipt of complaint Ex.PC, recorded formal FIR. Ex.PC/I without omission or addition.
(vii) Liaqat Ali, Sub Inspector/Investigating Officer appeared as P.W.7 at the trial and gave detail of investigation conducted by him in the case which have already been mentioned in an earlier paragraph of this Judgment.
(viii) Dr. Nawab Din appeared at the trial as P.W.8 and gave the detail of postmortem examination conducted by him on the dead body of Nadeem deceased. He also verified the fact of issuance of postmortem report which had been delivered to the police.
12. After close of the prosecution evidence the learned trial Court recorded statement of accused Aas Muhammad and Muhammad Irfan under Section 342 of the Code of Criminal Procedure.
Accused Aas Muhammad in answer to question "why this case against you and why the PWs have deposed against you"? stated as follows:-- "The PWs are related interse. Imam Din complainant is my maternal uncle. The land belonging to my maternal grand-father was got mutated- by Imam Din from whom I had been demanding the share of my mother., This caused annoyance to the complainant and due to the said grudge, he has lodged the instant case against me by fabricating a false and concocted story. The allegations against me are concocted and frivolous."
Muhammad Irfan co-accused of Aas Muhammad made an almost similar statement in answer to the above said question. Both of them, neither opted to make statement on oath under Section 340(2) of the Code of Criminal Procedure nor produced any evidence in their defence. The learned trial Court at the conclusion of the trial found both the accused guilty under Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Sections 377 and 302(b) of Pakistan Penal Code and convicted and sentenced them as noted in the second paragraph of this Judgment. Hence the present two Jail criminal appeals.
13.The learned trial Court has also moved Murder Reference for confirmation of death sentence of the appellants which has been registered as Criminal Murder Reference No, 3/1 of 2008.
14. We have heard learned counsel for the appellants as well as learned Additional Prosecutor General. The record has been seen. The evidence of witnesses and the statement made by appellants under Section 342 of the Code of Criminal Procedure has also been perused. Relevant portions of the impugned judgments have been scanned.
15. Learned counsel for appellants has raised the following points for our consideration:--
(i) That the removal of minor for a short distance for the purpose of commission of an offence is not covered by the mischief of Section 12 of Ordinance VII of 1979; (ii)That the incident occurred at 8.30.p.m. and not 5.30.p.m. and consequently the entire prosecution story is not worthy of credence; (iii)That blood stained earth was not collected from the place of occurrence; (iv)That the shalwar of the victim was not stained with blood; (v)That un-natural offence is not made out against Muhammad Irfan appellant; (vi)That the report of the Chemical Examiner is silent about blood on the clothes of deceased;
(vii) That it was a dark night when the incident took place;
(viii) That the minor victim had gone with the appellants with the consent of his father hence case of kidnapping is not made out. Reliance was placed on the report Muhammad Ashraf Versus The State NLR 1984 SD 167; (ix)That the venue of the crime has been changed intentionally; (x)That the medical evidence is at variance with the oral testimony; and (xi)That there was no swelling in the anal region which shows that un-natural offence was not committed.
16. Learned Additional Prosecutor General supported the convictions and sentences as recorded by learned trial Court. Reliance was placed on the case of Aman Ullah Versus The State reported as 1993 SCMR 1806 to show that taking away a woman with intent to commit illicit sexual intercourse was sufficient to constitute an offence.
17. Our observations, after considering the arguments of the contending parties are as follows :--
(i) That the father of minor victim Imam Din P.W.4 alleged in very clear terms that the appellants had visited his house at 12.00 noon on. 16.08.2004, took food and stayed there till 5.30.p.m. when they took away the victim on the pretext of "eating guava". This allegation is corroborated by the direct evidence of Muhammad Sharif P.W.5. There is no material on the record of the case to show that this allegation was disproved. The appellants have not shown that the victim was alive after 5.30.p.m. and was no longer under their protective custody. We have gone through the cross- examination of complainant with the assistance of learned counsel for the appellants and find consistency in his statement. The appellants have not been able to substantiate their claim of bad blood due to deprivation of inheritance. There is no proof of any common ancestor between parties or existing right of appellant Aas Muhammad in agricultural property usurped by the complainant.
(ii) That the testimony of the doctor P.W.8 relating to anal examination clearly established the commission of unnatural offence with a victim of tender age; (iii)That the cause of death was asphyxia due to suffocation and strangulation. The two injuries found on the corpse were ante-mortem. The nature of injuries and cause of death have not been disproved. Medical corroboration of prosecution story is available on file of the case.
(iv)No evidence is available on record to establish that the venue of incident was changed intentionally or that the incident had taken place at 8.30 p.m. as alleged by the appellants. Mention of 8.30 p.m, in column 3 of the Inquest Report only indicated the time when the incident/death came to the knowledge of police officer preparing the Inquest Report,
(v) The shalwar on the dead body of the child was torn from the middle. In this view of the matter absence of blood on shalwar does not disprove sodomy. On the contrary the tearing of shalwar at the seam is indicative of a criminal extraneous hand with ulterior purposes.
(vi)The precedent relied upon by learned counsel for the appellants does not support his contention because in the cited case it was found that it was customary for the victim child to go to appellants house to play. However we fail to appreciate the argument that removal of a child, even with permission of guardian, when the intention of kidnapper was criminal is not covered by the mischief of the offence of kidnapping. The words "without the consent of such guardian" as used in Section 361 of the Pakistan Penal Code should not be misconstrued because under Section 90 ibid a consent given under misconception is no consent intended by any Section of the Code.
Section 90 ibid reads as follows:- "90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any action of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person. If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
Consent proceeds from will. Could it be said that the father of victim in this case had given his consent permitting his minor son to accompany the two adults for satisfaction of their sexual lust?
Can it not be said that permission in fact was given under the mistaken belief that the two guests were returning the Courtesy to the complainant by giving a treat of guava to his minor son?
Misconception of fact can in no way be termed as. consent. Misrepresentation of facts, covering evil intentions by sweet gestures, falls in the category of fraud and chicanery. Securing consent through misrepresentation is no consent in the eyes of law. Consent - given under misconception cannot be used as valid defence by the appellants.
18. The oral testimony of complainant has been corroborated by medical report as well as the report of Chemical Examiner. The eye-witness account of complainant Imam Din PW.4 implicates the appellants. The record does not indicate any reason why the complainant would falsely implicate his own nephew Aas Muhammad appellant and the co-appellant. The impugned judgment is well reasoned. Evidence has been appreciated in proper perspective.
19.In view of what has been stated above we do not find any strength in the contentions of learned counsel for the appellants. The impugned judgments are well reasoned. In the absence of cogent reasons it is not possible to set aside the convictions and sentences recorded by learned trial Court in Sessions Case No, 13 of 2005, Sessions Trial No, 17 of 2005 as well as Hadood Case No, 22 of 2005, Hadood Trial No, 23 of 2005. Consequently Jail Criminal Appeal No,81/I of 2006 and Jail Criminal Appeal No,3 5/I of 2008 are dismissed. Death sentence as proposed in Criminal Murder Reference No, 3/I of 2008 is hereby confirmed.