' ALTAF IBRAHIM QURESHI, J.---Muhammad Iqbal respondent No,2 along with his co-accused Muhammad Sadiq was tried in case F.I.R. No,298, dated 27-10-2000, registered at Police Station Shadani, Te,hsil Liaqatpur, District Rahim Yar, Khan in respect of the offences under sections 302/377, P.P.C. By the Court of learned Additional Sessions Judge, Rahim Yar Khan, who vide his judgment dated 26-9-2003 acquitted respondent No,2 Muhammad Iqbal from the charge and convicted his co-accused namely Muhammad Sadiq under section 302(b), P.P.C. And sentenced him to life imprisonment being juvenile in addition to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased or in default of payment thereof he was to undergo further six months' R.I. The said co-accused of respondent-Muhammad Iqbal was further convicted under section 377, P.P.C. For committing sodomy with Asghar Ali deceased and sentenced to ten years' R.I. With fine of Rs,10,000, in default whereof to suffer R.I. For six months. The appellant Abdul Latif, being the complainant of aforesaid F.I.R., has filed this appeal challenging the acquittal of accused-respondent No,2.
2. At the inception of the trial, Muhammad Sadiq accused was declared juvenile, hence, the trial of Muhammad Sadiq commenced separately.
3. The facts of the case, as steamed out from the F.I.R. (Exh.PG/1), got lodged on the statement (Exh.PG) of the complainant-Abdul Latif (P.W.4) are that the complainant had two sons and his elder son namely Asghar Ali aged about 9/10 years was studying in class three. On 27-10-2000, at about 12-00 noon, Asghar Ali returned from School to his house and after taking lunch at about 3- 00 p.m., he went to the field to look after the sugarcane crop. Asghar Ali was witnessed by Sona and Muhammad Hanif (complainant's brother) in the company of Muhammad Sadiq and Muhammad Iqbal. Asghar Ali did not return till evening. During f the course of search, the complainant along with his brother Muhammad Ramzan and Hidayatullah met Sona and Muhammad Hanif, who disclosed that Asghar Ali was going with Muhammad Sadiq and Muhammad Iqbal accused; whereupon the complainant along with both the P.Ws. Reached in his field and while crossing the water course, they heard hue and cry of his son Asghar Ali from cotton crop; they reached there. When they were 3/4 paces away, they saw that Shalwar of Asghar Ali was putoff and he was subjected to sodomy by Muhammad Sadiq accused while Muhammad Iqbal was standing nearby. On seeing them, the accused persons fled away. They took care of Asghar Ali, who was died by that time.
4. On submission of separate challan, the charge was framed to which respondent No,2 pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as ten witnesses. Dr. Muhammad Yousif, Medical Officer, P.W.1 conducted the postmortem examination on the person of the deceased Asghar Ali on 27-10-2000 at 8-00 p.m. And observed as under:-- "External Appearance: Nail bites over the neck. Swollen face. Congested eyes. Frothing from mouth and nose. Semi opened mouth and eyes.
Condition of Subject: A young child wearing only Kameez of dirty brown colour, fresh body, without mortis at the time of examination.
Wounds, Bruises position: Small bluish bruises (nail bites) over the neck.
Cranium and Spinal Cord: Scalp, skull and vertebrae were intact. Membrane was intact while brains congested and spinal cord was intact.
Thorax: Walls, ribs and cartilages Pleurae were intact. Larynx and tracheae---Trachea was intact.
Hyoid bone seems fractured at ends. Right and left lung, Paricardium and heart were congested.
Blood vessels were containing dark colour blood.
' Abdomen: Walls, Peritoneum and Diaphragm were intact. Mouth studded with mud up to Pharynx.
Stomach containing semi solid contents. Pancreas, Liver, Spleen and Kidneys were congested.
Small intestines contained semi solid contents with congestion. Large intestine was empty and congested. Bladder was empty. Organs of generation were intact. There was evidence of faucal incontinence."
' In opinion of the Doctor, a young child about 10 years died due to asphyxia, throttling or gagging due to mud, which was sufficient to cause death in ordinary course of nature. The probable time given by him between injury and death was instantaneously (within 5 minutes) and between death and post-mortem was fifteen hours. Exh.PA is the postmortem report and Exh.PA/3 the injury statement. Exh.PA/2 is the inquest report.
5. Abdul Latif, complainant appeared as P.W.4 and supported the occurrence as narrated in the F.I.R. The said P.W. Abdul Latif and Muhammad Ramzan are the eyewitnesses of the occurrence.
Muhammad Ramzan while appearing as P.W.6 corroborated the complainant. Sona P.W.5 is the witness of last seen evidence, who saw Asghar Ali deceased going in the company of Iqbal and Sadiq accused. Nasrullah 378/C, P.W.2 escorted the dead-body of Asghar Ali deceased to RHC Khan Bela for post-mortem and after post-mortem examination, Doctor handed over to him post- mortem report and articles which was taken into possession vide recovery memo Exh.PE by the Investigating Officer. Malik Karim Bakhsh, Headmaster, while appearing as P.W.3 verified the fact that deceased Asghar Ali was studying in Government High School. Zafar Abad, Tehsil Liaqatpur.
Ghulam Akbar A.S.-I. Appeared as P.W.7 being Moharrer at the relevant time, who kept the sealed parcels in Malkhana for safe custody and later-on handed over the same for their onward transmission to the office of Chemical Examiner, Multan and the concerned quarter. P.W.9 Khalid Iqbal, Patwari, verified the scaled site plan, prepared by Munawar Hussain Patwari, who died before commencement of the trial. Aziz-urRehman, Sub-Inspector, P.W.8, is the author of formal F.I.R.
Exh.PG/2 on the basis of written statement Exh.PG.
6. Mohammad Munir Afzal, Inspector/S . H . 0 . /I.O. P.W. 10 conducted the investigation in this case.
After giving brief account of the investigation, he stated that the accused Muhammad Sadiq was found guilty during the course of investigation whereas Muhammad Iqbal, respondent No,2, was found to be innocent.
7. Muhammad Hanif and Hidayatullah, P.Ws., were given up by learned ADA on the basis of written application submitted by the complainant, as being unnecessary.
8. On conclusion of evidence of prosecution, statement of the accused-Muhammad Iqbal was recorded under section 342, Cr.P.C. To the question as to why this case against him and why the P.Ws. Made statements against him, Muhammad Iqbal accused/respondent No,2 replied:-- "P. Ws. Are interested and inimical to me and they have remained out tenant. They implicated me just to get money from me and during the course of three investigations, 1 have been declared innocent and P. W.10 Munir Afzal Inspector/ S.H.O.
1.0. Of this case has stated during cross-examination that firstly complainant pointed out one name of other person, then complainant added my name. I being close relative of Sadiq accused have been falsely implicated in this case. I am totally innocent".
' The accused/respondent No,2, however, did not opt to appear as his own witness under section 340(2), Cr.P.C.
9. At the end of the trial, after appraising the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions learned trial court proceeded to acquit the accused-respondent No,2, hence, this appeal.
10. Learned counsel for the appellant in support of this appeal contends that Muhammad Iqbal was present at the spot along with the principal accused and he shared the common intention, therefore, he too is liable for conviction.
11. On the other hand, learned counsel for respondent No,2 vehemently opposed this appeal on the ground that Muhammad Iqbal is the brother-in-law (sister's husband) of Muhammad Sadiq- accused and it is implausible that respondent No,2 would facilitate Muhammad Sadiq to commit such a heinous offence of sodomy.
12. We have heard the arguments advanced by the learned counsel for both the sides and perused the record with their able assistance.
13. There is no allegation of sodomy against respondent No,2 Muhammad Iqbal and the allegation against him is that of his mere presence at the place of occurrence. Even otherwise, it does not appeal to common sense that respondent No,2, who is brother-in-law (Behnoi) of the other accused Muhammad Sadiq, will jointly commit the act of sodomy or murder. Every person, initially, is presumed to be innocent unless proved guilty and when he is found otherwise and is acquitted of the charge, then he is presumed innocent two times.
14. We have gone through the judgment and do not find any ground for interference in the verdict of acquittal, as the same is neither perverse nor capricious; therefore, finding no substance in the criminal appeal, we dismiss the same.