1. AFTAB AHMED GORAR, J.---Through instant Cr. Appeal filed under section 410 Cr.P.C., the appellant has assailed the Judgment dated 27.07.2012 passed by IVth Additional Sessions Judge, Karachi East in Sessions Case No.1143/2009 whereby he convicted the appellant and sentenced him under section 377 PPC to suffer R.I. for a period of 7 years for committing offence of sodomy and to pay fine of Rs-.50,000/- and in default whereof to suffer SI for one month. Appellant was further convicted and sentenced under section 302 PPC to undergo imprisonment for life for committing offence of Qatl-i-Amd and to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased and in default whereof to suffer SI for 6 months. The appellant was, however extended benefit of section 382-B, Cr.P.C. and sentences awarded to the appellant were ordered to run concurrently.
2. The prosecution case, in nutshell, as disclosed in FIR No.395/2009 lodged by complainant Riasat Shah at P.S. KIA Karachi on 02.05.2009, are that on 30.4.2009 complainant's son Adnan Shah aged about 5 years went out of the house in the afternoon at about 2.00 p.m. and did not return.
3. Complainant searched for the boy everywhere but could not find him and on 02.05.2009 he requested the Army Dog Centre for snifter dogs but just before their arrival his neighbor Abdul Hakeem and his son Zeeshan Shani informed him that some stinking smell is coming, from their underground water tank. Salamat Shah, who is maternal uncle of the deceased Adnan removed the lid of the water tank after removing 20 Kg. stone and saw the dead body of Adnan floating on the water. Area police were informed that his son has been killed by someone and thrown in the water tank. Police lodged FIR, arrested the appellant who during interrogation stated that he was given Rs.10.000/- by accused Dawood Shah for committing murder of the boy as such accused Dawood Shah was also arrested. After usual investigation police submitted charge sheet in the court of law.
4. At the trial prosecution examined PW-1 complainant Riasat Shah as Ex.05 ,PW-2 Salamat Shah as Ex.
06. PW-3 Babar as Ex.07. PW-4 PC Mohammad Zarrar as Ex.09. PW-5 SIP AD Choudhry as Ex.10, PW-6 Dr.M. Kaleem as Ex.12. PW-7 Dr.Noor Ahmed as Ex.13PW-8 SIP Abdul Qayyum Abro as Ex.14, thereafter prosecution side was closed vide statement Ex.15. Thereafter statements of the accused were recorded under section 342 Cr.P.C. as Ex.16 and Ex.17 wherein they denied prosecution allegations. However, they did not examine themselves on oath but appellant Malik Aqeel produced witness in his defence namely Ghulam Mustafas as DW I at Ex.18. After recording that evidence and hearing the counsel for the parties learned IVth Additional Sessions Judge Karachi East vide impugned judgment convicted and sentenced the appellant as stated above, hence this appeal. However, vide the same judgment he acquitted accused Dawood Shah.
5. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated for ulterior motives; that the trial court did not appreciate that the prosecution has failed to prove its case beyond reasonable doubt. He further contended that accused. Dawood Shah has been acquitted on the same set of evidence on the basis whereof appellant was found guilty, hence the appellant also deserves to be acquitted.
6. According to him, it is an unwitnessed incident and nobody has seen the accused committing the alleged offences besides no recovery has been effected from the appellant.
7. He further contended that the samples were sent to the chemical examiner after a delay of 13 days and moreover ASI Mohammad Abid who is said to have received the samples from the doctor for chemical examiner report has not been examined which make the case doubtful, benefit whereof must go to the accused. He further contended that it has come in evidence that the chemical report and DNA report are contradictory to each other, despite that the trial court has relied upon the DNA report. He further contended that the prosecution witnesses have given different versions so far as place of incident is concerned, even otherwise there are material contradictions in the evidence of prosecution witnesses. He prayed for setting aside the impugned judgment and acquittal of the appellant. He relied upon the case-law reported in 1993 SCM R 550, PLD 1954 FC 197, 1984 SCM R 42, 1998 SCM R 570, 1968 SCM R 161, PLD 1960 Sc 223, PLD 1971 SC 541, 1985 SCM R 410, 1992 SCM R 2088 and unreported judgment passed by a Division Bench of this Court in Special ATA No.23 of 2003 & Confirmation Case No.06/2003.
8. Conversely, learned A.P.G. appearing for the State supported the impugned judgment contending that the same is well-reasoned and in accordance with the law. He submitted that prosecution has proved its case beyond reasonable doubt, as such the appellant has rightly been convicted and sentenced. He further contended that accused Dawood Shah was not involved by any prosecution witness in the commission of the alleged offence but there is only statement of the appellant that accused Dawood Shah had given him Rs.10,000/- for committing murder of the boy. According to him the appellant is involved in heinous offence, therefore he is not entitled to any leniency. According to him, the DNA report is against the appellant which proves that the act of sodomy was committed by him upon the deceased boy. He prayed for dismissal of the appeal.
9. I have heard the arguments advanced by the learned counsel for the appellant as well as learned A.P.G. and perused the material available on the record.
10. It appears that during the process of evidence P.W.1, 2 and 3 narrated factum of missing of child namely Syed Adnan Shah aged about 5 years on 30.4.2009 at 2.00 p.m.: lodging of report with police post of PS KlA on the same day; the fact as to calling trained sniffer dogs through Army Dogs Centre on 01.5.2009; arrival of trained dogs alongwith trainers at the house of complainant on 02.5.2009 at about 8.45 a.m. when in the meanwhile Malik Abdul Hakeem and his son Zeeshan informed the complainant about the smell arising from their underground water tank, when on such information PW Salamat Shah went to the house of Abdul Hakeem, who is father of the appellant and he found inside the water tank dead body of the child. The evidence of P.Ws 1, 2 and 3 remained consistent and un-shattered although they were subjected to lengthy cross- examination.
11. Medical evidence also corroborates the testimony of these witnesses, P.W.6 Dr. Kaleem Shaikh who conducted the post-mortem in his evidence has given the details of the condition of deadbody. The post-mortem report further reaffirms the death of the deceased child haying taken place about 36 to 48 hours prior which also corroborates the prosecutron story.
12. The Investigating Officer arrested the appellant and his father Abdul Hakeem on 20.5.2009.
13. However, Abdul Hakeem was let out under section 169, Cr.P.C. The appellant during his interrogation admitted to have committed the alleged offences. The Investigating Officer on 29.5.2009 got medically examined appellant Malik Aqeel and obtained his blood and semen samples. Since no independent DNA profile was obtained by the MLO therefore, the I.O. then moved application to the chemical examiner on 08.6.2009 requesting therein for return of one swab of the deceased for sending the same alongwith the lead and semen sample of the appellant for DNA examination. After obtaining the anal swab of deceased boy the 1.0. sent those articles for DNA test through courier service (TCS) to Dr. Abdul Qadeer Khan Laboratory, Islamabad on 15.6.2009. The DNA report was received by I.O. which confirmed that the DNA profile obtained from swab sample of victim, Syed Adnan Shah son of Syed Riasat Shah matched with the DNA profile obtained from the sample of accused Malik Aqeel Ahmed son of Malik Abdul Hakeem.
14. The I.O. then placed chemical examiner report as well as DNA report before the MLO who issued final cause of death mentioning therein that death had occurred due to asphyxia resulting from drowning, furthermore the act of sodomy was also confirmed by DNA report.
15. It seems that the learned counsel for the accused cross-examined the prosecution witnesses at length but nothing favourable could be achieved. The lapses and discrepancies pointed out by the learned counsel for the appellant during the course of his arguments are merely procedural and do not vitiate the overwhelming circumstantial evidence which is well corroborated by DNA report. All the pieces of circumstantial evidence, when combined together, provide a strong chain of circumstances, leading to the conclusion that it was the accused Malik Aqeel who had committed murder of the deceased. The witnesses were subjected to lengthy cross examination but their credibility could not be shattered. Merely because the complainant was related to the deceased, his testimony could not be discarded. Though nobody had witnessed the occurrence but strong circumstantial is available which leads to the conclusion that it was the appellant who had committed the crime. No plausible explanation has been furnished to establish that the complainant has involved the accused in the commission of the alleged offences on account of certain or enmity or for any ulterior motives.
16. So far as the contention of the learned counsel for the appellant that accused Dawood Shah has been acquitted on the same set of evidence on the basis whereof appellant was found guilty is concerned, it may be observed that not a single witness has deposed against accused Dawood Shah. The only piece of evidence against him are the words of accused Malik Aqeel who during interrogation' stated that accused Dawood Shah had given Rs.10.000/- to him for committing murder of deceased boy. Such piece of evidence is not, at all, sufficient to convict accused Dawood Shah and the trial court has rightly acquitted him.
17. There is no cavil to the propositions of law mentioned in the case-law relied upon by the learned counsel for the appellant, however each criminal case is to be decided on its own merits and the facts of the cited cases and that of the present case are distinguishable.
18. Furthermore, learned counsel could not successfully attack the veracity and genuineness of the DNA report which is a strong piece of evidence, nor could he prove any or enmity on the part of the complainant so as to implicate the accused falsely in the instant case.
19. The upshot of above discussion is that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellant, as such the appeal merits no consideration.
20. Consequently the appeal is dismissed and the judgment of conviction is upheld.
21. Above are the reasons for short order passed on 7-5-2013.