' IJAZ AHMED CHAUDHRY, J. --- Appellant along with one another was tried in the case registered vide F.I.R. No. 395/2009 under Sections 302/377, PPC at Police Station KIA, Karachi East, for the murder of son of the complainant namely Adnan Shah aged 5 years after committing sodomy with him. The learned Trial Court vide its judgment dated 27.7.2012 while acquitting the other co- accused, convicted the appellant under Section 377, PPC and sentenced him to 7 years' RI and to pay a fine of Rs. 50,000/-, in default whereof to further undergo SI for one month. He was further convicted under Section 302, PPC and was sentenced to life imprisonment with compensation amount of Rs. 100,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for six months. The learned High Court vide impugned judgment maintained the convictions and sentences recorded by the learned Trial Court.
2. Facts briefly stated are that the complainant Riasat Shah lodged F.I.R. On 2.5.2009 to the effect that on 30.4.2009 his son aged 5 years went out in the afternoon at about 2.00 p.m. But did not return. He searched him everywhere but could not find him and on 2.5.2009 he requested the Army Dog Center for sniffer dogs but just before their arrival his neighbor Abdul Hakeem and his son Zeeshan informed that some stinking smell is coming from their underground water tank and invited to check the same for his son. Salamat Shah, maternal uncle of the deceased, removed the lid of the tank and saw that the dead-body of the deceased Adnan was floating on the water.
Thereafter the police was informed. Police lodged the F.I.R. And subsequently arrested the accused.
The prosecution in order to prove its case produced 9 witnesses.
3. We have heard learned counsel for the parties as also learned Additional Prosecutor General and have gone through the evidence on record.
4. Complainant's son Adnan Shah aged about 5 years went missing on 30.4.2009 and despite search could not be found. Subsequently, his dead-body was found lying in the water tank of complainant's house on 2.5.2009. PW-1, complainant, Riasat Shah, PW-2 Salamat Shah and PW-3 Babar Shah narrated the story and the factum of recovery of dead-body. According to post- mortem report conducted by Dr. Muhammad Kaleem PW-6 the cause of death was asphyxia (a condition arising when the body is deprived of oxygen, causing unconsciousness or death; suffocation). Pursuant to an application moved by the complainant on 17.5.2009, the police arrested the appellant and his father on 20.5.2009 who were also their neighbours. The father of the appellant was subsequently released. The appellant on 28.5.2009 admitted his guilt before the Police and narrated the story that he committed sodomy with the deceased in the room at 3rd floor of his house and thereafter strangulated the child and thrown his dead-body in the underground water tank. In all such background after successfully getting the clue of the actual culprits, the Investigating Officer on the very next day i.e. 29.5.2009 got medically examined the appellant and obtained his blood and semen samples. The 1.0. Then sent the semen sample of the accused along with the anal swab of the deceased to Dr. Abdul Qadeer Khan Laboratory, Islamabad on 15.6.2009. The report received was to the effect that DNA profile obtained from swa b of victim, Syed Adnan Shah matched with the DNA profile obtained from the samples of the appellant and thereby the act of commission of sodomy was proved.
Although, this is an unseen occurrence but there is overwhelming circumstantial evidence against the appellant. All the pieces of evidence when placed in junta position, clearly establish that it was the appellant who .Had first committed sodomy with the deceased and then killed him to save his skin. Nothing could be brought on record to suggest that the appellant has been involved in the case for mala fide reasons. It is on record that F.I.R. Was lodged on 2.5.2009 against unknown persons after the recovery of dead-body. If the complainant had any or ulterior motive against the appellant, he could have nominated him at the time of recording of FIR. It is also on record that more than 30 persons of the locality were joined in investigation but were subsequently released being innocent. All this clearly show that nothing bad was in the mind of the complainant.
Investigation was conducted only to unveil the actual culprit. So far as the argument of learned counsel for the appellant that the co-accused has been acquitted by the learned Trial Court is concerned, he was involved in the case only on the statement of the appellant that he had actually committed the offence on the instigation of the said co-accused Dawood Shah against payment of Rs. 10,000/-. However, not a single witness deposed against the said co-accused. In such circumstances, the learned Trial Court has rightly acquitted the co-accused.
5. For what has been discussed above, the prosecution has successfully proved its case against the appellant beyond any shadow of doubt. The appeal having no merit is accordingly dismissed.