Altaf Ibrahim Qureshi, J.--Through this single judgment, we intend to dispose of this appeal as well as Criminal Revision No, 157/2003 having been arisen from one and the same FIR viz. Muhammad Sadiq the appellant, who has been indicted alongwith Muhammad Iqbal in case F.I.R.
No, 298, dated 27.10.2000, registered at Police Station Shadani, Tehsil Liaqatpur. District Rahim Yar Khan in respect of the offences under Sections 302/377, P.P.C. The -appellant-Muhammad Sadiq was convicted under Sections 302(b), P.P.C. and was sentenced to life imprisonment being juvenile in addition to pay Rs, 50,000/- as compensation u/S. 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. He 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 RI for six months. His both sentences were ordered to run concurrently. So far as Muhammad Iqbal co-accused is concerned, he was acquitted of the Charge. This is vide separate judgment dated 26.09.2003 passed by the learned Additional Sessions Judge, Rahim Yar Khan. The appellant has filed the appeal (Cr.A. No, 338/2003) against the said conviction and sentences through his counsel. The complainant has filed Criminal Revision No, 157/2003 for enhancement of his sentence.
2. The facts of the case, as steamed out from the FIR (Exh.PG/1), got lodged on the statement (Exh.PG) of the complainant-Abdul Latif (PW-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 All 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 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 PWs 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 put-off 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.
3. At the inception of the trial, Muhammad Sadiq accused was declared juvenile on the basis of evidence and material available on the file, which remained unchallenged by the complainant. The trial of Muhammad Sadiq was separated from that of his co-accused Muhammad Iqbal. On submission of separate challan, the trial commenced and on denial of the charge by the accused- Muharnmad Sadiq, the prosecution examined as many as ten witnesses in support of the charge.
4. Dr. Muhammad Yousif, Medical Officer, PW-1 conducted the postmortem examination on the person of the deceased- Asghar Ali on 27.10.2000 at 8.00 a.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 upto 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 PW-4 and supported the occurrence as narrated in the FIR.
The said PW-Abdul Latif and Muhammad Ramzan are the eye-witnesses of the occurrence Muhammad Ramzan while appearing as PW-6 corroborated the complainant. Sona PW-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, PW-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 PW-3 verified the fact that deceased Asghar Ali was studying in Government High School Zafar Abad, Tehsil Liaqatpur.
Ghulam Akbar ASI appeared as PW-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. PW-9 Khalid Iqbal, Patwari, verified the scaled site-plan, prepared by Munawar Hussain Patwari, who died before commencement of the trial. Aziz-ur-Rehman, Sub-Inspector, PW8, is the author of formal FIR Exh.PG/2 on the basis of written statement Exh.PG.
6. Muhammad Munir Afzal, Inspector/SHO/I.O. PW-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.
7. Muhammad Hanif and Hidayatullah, PWs, 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 Sadiq 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 Sadiq-accused/appellant replied:-- "PWs are interested, interse related and inimical to me and according to the entire prosecution story and even in FIR, no PWs or complainant have deposed that they have seen any person/accused while committing the murder of Asghar Ali deceased. However, prosecution has tried to establish the alleged story of sodomy which is not corroborated by medical evidence and PW-1 Dr. Muhammad Yousif has given the clear cut opinion during cross-examination, "there is no opinion about the injury on the Anus during post mortem report and doctor PW-1 did not suggest that sodomy was committed with deceased and even taking of semen, swabs are not in the report and PW-10 Muhammad Munir Afzal Inspector has also stated that they were tracing foot prints at the scene of occurrence. So, I have been falsely implicated in this case due to suspicion and previous enmity. I am totally innocent".
The appellant, 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 thrashing 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 convict and, sentence the appellant, as mentioned in the opening paragraph of this judgment.
10.Learned counsel for the appellant in support of this appeal bearing Criminal Appeal No, 338/2003 titled, 'Muhammad Sadiq Vs. The State", contends that there are glaring contradictions between the ocular account and medical evidence; that Doctor Muhammad Yousif, PW-1, in his post-mortem report has not mentioned any injury upon the anus of the deceased Asghar Ali and similarly there is no mention in the said post-mortem report that any swabs were taken for their onward transmission to the office of the Chemical Examiner but while appearing in the Court as PW-1, he stated otherwise. The Doctor was duly confronted with his previous statement and improvement brought on the record by him. Further contends that the report of the Chemical Examiner, wherein it is mentioned that the swabs were stained with semen, cannot be relied upon for the simple reason that swa bs were dispatched on 27.10.2000 whereas those were received in the concerned Laboratory on 30.11.2000 i,e, after the elapse of more than one month and in such a situation the detection of semen is not possible, especially when the Constable who allegedly took the swa bs to the Laboratory has not been examined by the prosecution; that both the PWs, i,e, Abdul Latif (PW-4) and Muhammad Ramzan (PW-6), have stated that when they saw Asghar Ali deceased, he had already died. The said witnesses are closely related interse and to the deceased as well, therefore, it is not safe to rely on their testimony. Learned counsel further contends that there is absolutely no evidence as far as the alleged murder of Asghar Ali deceased is concerned and the Doctor, in his opinion, recorded the cause of death that it may be because of asphyxia, throttling or gagging due to mud, but there is no evidence that any body pressed the throat of the deceased, as the complainant and the other witnesses have simply stated that in their view the appellant was committing sodomy, however, while appearing before the learned trial Court as PW- 4 the complainant made dishonest improvements by stating that he observed nail injuries around the neck and the mouth of the deceased was filled by mud; that the prosecution case is highly doubtful in nature and the appellant is entitled to acquittal.
11.On the other hand, learned counsel for the complainant assisted by the learned Deputy Prosecutor General vehemently opposed this appeal on the grounds that the appellant is duly nominated in the FIR by the father of the deceased and the matter was promptly reported to the police; that there is absolutely no enmity between the complainant side and the appellant for his false implication; that the ocular account furnished by Abdul Latif and Muhammad Ramzan (PW-4 & PW-6, respectively) and that of last seen evidence given by Sona (PW-5), is fully supported by the medical evidence as PW-1, Doctor Muhammad Yousif, stated that sodomy was committed with the deceased and the report of the Chemical Examiner is in positive; that since the deceased was taken by the appellant in a living condition and he was found dead when the appellant ran away from the place of occurrence, therefore, in the circumstances, it can safely be inferred that it was the appellant who not only committed sodomy with the deceased Asghar Ali but also murdered him.
12.As far as the revision petition bearing Crl. Rev. No, 157/2003 is concerned, learned counsel for the complainant-petitioner contends that the appellant was not the juvenile at the time of occurrence and he has wrongly been treated as juvenile by the learned trial Court, therefore, normal penalty of death be awarded to the appellant-Muhammad Sadiq.
13.We have heard the arguments advanced by the learned counsel for both the sides and perused the record with their able assistance.
14.This unfortunate incident, wherein a boy of 10 years of age lost his life, took place on 27.10.2000 within the area of village/mouza Zafar Abad, Tehsil Liaqatpur, falling within the jurisdiction of Police Station Shedaani, Tehsil Liaqatpur, at around 3.00 p.m. whereas the matter was reported to the police at 7.05 p.m. on the same day by Abdul Latif, complainant-PW-4, real father of the deceased Asghar Ali. The distance between the place of occurrence and the Police Station is 9 kilometer, so, considering the circumstances of the case, especially the social status of the complainant, we are of the view that there is no delay in reporting the matter to the police.
15.The post-mortem examination on the dead body of deceased Asghar Ali was conducted on 27.10.2000 at 8.00 p.m. it is the case of the complainant in the FIR as well as before the learned trial Court that his son namely Asghar Ali came from School at about 12.00 noon, who after taking lunch, went to his fields of Sugarcane at 3.00 p.m. but did not return. The complainant along with Muhammad Ramzan (his brother) and Hidayatullah, went in search and met Sona and Muhammad Hanif, who told them that they had seen the complainant's son in the company of Muhammad Sadiq-appellant and Muhammad Iqbal whereupon they reached the fields and heard the hue and cry of Asghar Ali deceased and saw that the Shalwar of his son was put-off and the appellant was committing sodomy with him, who on seeing them, ran away. This version of the complainant is supported by the statement of other PW namely Muhammad Ramzan (PW-6) and further corroborated by Sona PW-5, who stated that he saw the deceased in the company of Muhammad Sadiq-appellant and Muhammad Iqbal, at the relevant time. All these witnesses are residents of the area, as is cleared from the cross-examination. There is absolutely no evidence for the false implication of the appellant in this case. The evidence of related witnesses cannot be discarded merely on the ground of interse relationship or relationship with the deceased unless and until they have some enmity for false implication of the appellant, which is very much lacking in this case.
16, In this case, the charge was framed against the appellant on two heads i,e, under Section 377, P.P.C. and Section 302. P.P.C. As far as Section 377, P.P.C. is concerned, it is the case of the complainant and PW-6 Muhammad Ramzan that they saw the appellant committing sodomy with the deceased Asghar Ali and his Shalwar was removed, which was taken into possession from the spot vide recovery memo. Exh.PH. PW-1 Dr. Muhammad Yousif, in his statement before the learned trial Court, stated as under: "At that time, police also produced before me injury statement Exh.PA/3 on which I opined the cause of death will be declared after receiving the report about sodomy from the office of chemical Examiner. Chemical Examiner report is Exh.PC, according to said report, in my opinion, prior from murder, Asghar Ali deceased was subjected to sodomy."
The report of the Chemical Examiner is also in positive, therefore, we are of the view that the prosecution has fully proved its case to the extent of Section 377, P.P.C. and as such the sentence and conviction of the appellant under this section is maintained.
17. As far as Section 302, P.P.C. is concerned, we have noted that it is not the case of any of the prosecution witnesses that in their view any injury was caused to the deceased-Asghar Ali by the appellant. While appearing before the learned trial Court as PW-4, the complainant has tried to improve his case and he was confronted with his previous statement and improvements, which is available at page (3), the relevant portion of the statement is as under: "Confronted with Exh.PG where all above portion is not so recorded. I have stated before the police that the mouth of my son was filled with mud. Confronted with Exh.PG, where it is not so recorded. I have stated before the police that there was nail biting injuries/sign of nail injuries on his neck.
Confronted with Exh.PG where it is not so recorded.'
PW-1, Doctor Muhammad Yousuf in his opinion, stated that the cause of death is not the sodomy rather, as per Doctor, is asphyxia, throttling or gagging due to mud. There is no such evidence on the record that the appellant pressed the throat of the deceased or with anything else, which could cause his death. As such this charge, in our view, has not been proved by the prosecution, therefore, the benefit of doubt is extended to the appellant and he is acquitted of the charge.
18. For the foregoing reasons, this appeal is dismissed to the extent of conviction & sentence under Section 377, P.P.C. whereas the same is allowed to the extent of Section 302, P.P.C.
19. Since the appellant has been acquitted from the charge under Section 302 P.P.C therefore, there is no substance in the criminal revision which is dismissed