' AFTAB HUSSAIN, C. J.-By his order dated 23rd of October, 1982, Mr. Muhammad Mujeebullah Siddiqui, Additional Sessions Judge, Karachi, convicted both the appellants under section 12 of the Offence of Zina (Enforcement of. Hudood) Ordinance, 1979, and sentenced Moulvi Haroon Bux to 15 years' R. I. And Rs, 1,000.As fine (in default one year's R. I.), and sentenced Moulvi Sabir Ali to five years' R. I. And Rs, 500 as fine (in default 6 months' R. I).
2. The learned Additional Sessions Judge also convicted Moulvi Haroon Bux under section 377, P. P.
C. And sentenced him to 10 years' R. I. And Rs, 1,000 as fine (in default one year's (R. I.). The sentences of imprisonment against Moulvi Haroon Bux were directed to run concurrently.
3. The prosecution case in short is that Muhammad Sharif, P. W. 6, Haroon, P. W. 2, Ghulam Ghous, P.
W. 3, Sarfraz Ahmad, P. W. 4 and several other boys used to learn recitation of the Holy Qur'an from Moulvi Huzoor Bux, who was Pesh Imam of Masjid Darulsalam, Korangi, Karachi. Moulvi Huzoor Bux first committed sodomy with Muhammad Sharif, P. W. 6 when he took him to a public meeting and Muhammad Sharif had to stay with him during the night because they had returned quite late from the meeting. He subjected him to carnal intercourse against the order of nature, again one day during the Noon time and was seen while committing this act by Haroon, P. W. 2, Ghulam Ghous, P.
W. 3 and Sarfraz Abroad, P. W.
4.
4. On the 10th of March, 1982, Moulvi Huzoor Bux gave a chit. Exh. P. 6 to Sarfraz, P. W. 4 for the delivering the same to Muhammad Sharif, P. W. 6, who at the instance of his father had given up attending the Madrissa of Huzoor Bux. Next day he disappeared from his house. His father Haji Muhammad Hanif, P. W. 1 started his search. He was informed by Abdul Rehman, P. W. 7, his wife's relative with whom his relations were strained at the time that he had seen Muhammad Sharif, P.
W. 6 going on motorcycle with Moulvi Sabir Ali, appellant. Haji Muhammad Haneef did not believe Abdul Rehman till the discovery of chit Exh. P.
6. On the 17th March Muhammad Haneef's daughter while washing the clothes of Muhammad Sharif found a chit Exh. P. 6 and gave it to her father. After the discovery of this chit, Haji Muhammad Haneef, P. W. 1 gave the first information report at the Police Station Korangi against both the appellants in respect of abdwition of his son.
5. The police arrested Sabir Ali on the 30th of March, 1982, near a Mosque near Frere Hall. They arrested Huzoor Bux after mid-night on the 5th April, 1982, and recovered Muhammad Sharif, P. W. 6 from his custody in the Hujrah (room) of Madni Mosque in Gulbahar, Golimar, Karachi.
6, Muhammad Sharif was medically examined by Dr. Irfan Qureshi, P. W. 5 on the 5th of April, 1982, at about 12-30 p. m. He found as under:- "(1) He is a young by of average built.
(2) Dress not changed.
(3) Stool passed.
(4) Bath not taken.
(5) No mark of blood or semen present on body.
(6) No mark of blood or semen present on clothes.
(7) A tear present at 11 o'clock position i" x 1/101'.
(8) Healed abrasion 11 x 1/3' over right knee joint." ; In his opinion Muhammad Sharif might have been subjected to sodomy. In cross-examination however, he stated that he could not be certain about it. In reply to a Court question he said that his uncertainty was due to the fact that a like tear in the anal canal can be caused with the introduction of any hard and blunt substance other than penis.
7. Haji Muhammad Haneef, P. W. 1 explained the circumstances of the disappearance of Muhammad Sharif, the information about Moulvi Sabir AR taking away Muhammad Sharif on his Motorcycle, the discovery of the Chit Exh. P. 6 and the recovery of Muhammad Sharif. In cross- examination it was put to him whether he raised an objection against the recitation of Darood-o- Salam after the prayer as was done by the people of the Brailvi School of Thought. He denied it and said that nobody raised such an objection.
8. Haroon, P. W. 2, Ghulam Ghous, P. W. 3, Sarfraz, P.- W. 4 stated that once they had seen Huzoor Bux committing sodomy with Muhammad Sharif. They were waiting for their turn to play cricket and were sitting on a well near the room of Huzoor Bux. They heard the voice of Muhammad Sharif and went to the above room, door of which was open and saw the appellant. Huzoor Bux committing carnal intercourse against the order of nature with Muhammad Sharif. Sarfraz P. W. 4 also stated that Huzoor Bux gave a chit Exh. P. 6 to him, which he delivered to Muhammad Sharif, P. W.
6. This was after eight or nine days after the above incident. They were confronted with their statements before the police in which there was no mention about the cricket play.
9. Muhammad Sharif, P. W. 6 stated about the incident of commission of offence of sodomy with him by Huzoor Bux one night when he returned' with the said appellant after attending a public meeting and about the 2nd incident of the commission of the same offence which was witnessed by P. W. 2 to P. W.
4. He further stated that on the 10th of March, 1982, Huzoor Bux sent a chit Exh. P. 6 to him through Sarfraz P. W. On receiving the chit he went to see Huzoor Bux at about 4.00 p. m. Who asked him to run away with him from Korangi. He did not agree to the suggestion but Huzoor Bux threatened that if he failed to do as he was told, he would- disclose his misconduct to everybody and he would be dishonored. Due to the fear of disrepute he agreed. Huzoor Bux, appellant sent him to Qasba Colony along-with Moulvi Sabir Ali, where he stayed for one night in his house. On Friday the appellant came and took him to Hyderabad, where they stayed in a Hotel, where again he committed sodomy with him. Then he took him to different places in the Provinces of Sind and Punjab. During this period he also committed sodomy with him twice or thrice. Allah Bux brother of Huzoor Bux, who was searching him met them at Lahore. Huzoor Bux and Muhammad Sharif came alongwith Allah Bux to Karachi where Huzoor Bux stayed in Madni Mosque, Golimar for two days in the Hujrah. The Police arrested Huzoor Bux and recovered him from there.
10. Abdul Rehman, P. W. 7 and Abdul Rasheed, P. W. 8 are witnesses of Muhammad Sharif being taken away by Moulvi Sabir Ali on his motorcycle. Abdul Rehman also witnessed the arrest of both the appellants and recovery of Muhammad Sharif. His statement supports fully the prosecution version in this respect. P. W. 10 Dr. Qaisar Rasool examined Muhammad Sharif for his age and after his X-Ray tests found that he was 15 years old.
11. Akbar Ali, Investigation Officer gave particulars of the arrest of the two appellants on different dates and the recovery of Muhammad Sharif. Questions were also put to him about his belief and he stated that he belonged to the Hanafi sect and sometimes offered prayer behind Huzoor Bux, appellant.
12. The appellant in his own statement denied the charges against him. He stated that on the date of arrest and during the time when he is said to have abducted Muhammad Sharif he had been working in Jamia Masjid Darul Salam. He had never gone to Lahore. He was arrested from his house. According to him the witnesses had deposed falsely against him at the instance of Haji Muhammad Haneef, father of Muhammad Sharif. He gave the details of his defence in reply to a question whether he wanted to say anything else. He said:- "I have remained Khateeb for five years in Jamia Masjid Darus Salam Korangi. After one year of my employment religious differences arose. Thereafter an attack was made on me with. Churls during last Ramzan, due to reciting of Slat-o-Salam in the Mosque. 1, lodged F. I. R. Of the incident at Korangi Police Station which was recorded by S. H. O. Abdul Hafiz Qadri. Thereafter 3 to 4 constables used to keep Guard at my house for my security. About 5 months ago from today a public meeting to place at Korangi No, 5i and during my peech in the meeting an attack was made on me. Police arrived in the meeting and the meeting was dispersed. Police left me at my house. Jamia Masjid Darns Salam-where I was Khateeb. Is the Mosque of Ahlal-e-Sunnat, Barelvi Sect. There are three other Mosques in the Mohalla, one is of Shia Sect, other is of Deo-Bandi Sect and third one is of Ahle-e-Hadis Sect. Last year I went to perform Umra before Haj. The Masjid Management committee granted leave to me for one month. I came with delay of few days and on my return differences arose between me and the Management of Mosque. The Management demanded my resignation, but the persons offering prayers in Mosque took the stand that they will not leave me. I, therefore, formed a parallel Managing Committee and named that Committee as `Anjuman-e- Tahaffuz-e-Muqam-e-Mustafa'. I was patron-in-chief of the Anjuman. After forming Parallel Committee and Anjuman we started meetings of Meeladun Nabi' in the Mohalla for 2 to 4 times in a week. My opponents from the other sects used to dislike these activities, but I continued with my programme. P. Ws. Abdur Rehman, Abdur Rashid, Muhammad Bashir, Ghulam Hussain and Ghulam Sarwar were members of the First Managing Committee. The differences between me and the first Managing Committee become very serious and they tried very much to oust me, during the Ramzan in the Prayers. From Ramzan in the year 1981, they started throwing stone and filth in my house. They got theft committed twice in my house. One day I had gone to Darbar of Ghazi Abduilah with my children at 9-00 a. m. I reached back at 2-30 p. m. When I reached my house I found the lock of my door broken. I called the acting Imam Muhammad Shafi and Khadim of Mosque Ghulam Murtaza and asked from them and Manzoor Hussain Moazzin of Mosque. They informed me that they saw P. Ws. Muhammad Sharif, Umar Draz and Sarfraz breaking lock of my house. I entered my house and saw that my tape-record was missing, locks of two boxes were broken and some other articles of my family members were also missing. Complained about the matter to parents of these witnesses and told :o them that if my property was returned I will not lodge F. I. R. With Police, on which they agreed for compromise and kept me on promises for two days. They did nothing and therefore, I lodged F. I. R. At Police Station against P. Ws. Abdul Rehman, Haji Hanif, Sarfraz, Sharif, Abdul Rasheed and Ghulam Hussain. Thereafter police came and arrested all Of them. It was Tuesday. After Maghrib Prayers they returned from police station. On Wednesday P. W. Muhammad Sharif suddenly disappeared. About 2 weeks before his disappearance the parents of P. W. Muhammad Sharif had discontinued his learning of Qur'an with me, because I had beaten him. He was student of school also and he was irregular in attendance at school and madrasa both. The parents of P. W. Muhammad Sharif and other persons continued search for P. W. Muhammad Sharif and made announcement in the Mosque also about disappearance of Muhammad Sharif. They continuously searched Muhammad Sharif and due to difference with me extended threats to me also and I. Always showed my ignorance. P. Ws. Abdul Rasheed, Ghulam Hussain, Ghulam Sarwar and Abdul Rehman attacked me after Isha Prayer. They were annoyed on being levelled as thieves by me. I told them that I have implicated them on the saying of Imam, Moazzin and Khadim of Mosque and I was prepared for compromise with them.
Thereafter they prepared a drama. They told me that either I should stop disrupting them or they will level such allegation against me which I will remember for the whole of my life. One day before my arrest I and the Mohalla people heard that P. W. Muhammad Sharif was present at police station. We heard that someone produ:ed P. W. Muhammad Sharif before Nanney Khan President Jamat-e-Ahl-eSunnat and Zakat Ushr Committee, who produced the by before Abdul Hafiz Qadri, S. H.
0. Korangi. I led Asr prayer on Saturday and thereafter Sub-Inspector Akbar Ali came to me with two constables and told that I was being called by S. H. O. Abdul Hafiz Qadri. I was taken to police station where P. Ws. Abdul Rehman, Abdul Rasheed, Ghulam Hussain, Ghulam Sarwar, Muhammad Bashir, Haji Hanif and P. W. Muhammad Sharif were also present. I was detained in police look-up where co-accused Moulvi Sabir Ali was already detained. After Maghrib prayers I was taken out of lock-up. Sub-Inspector Akbar Ali took me in his room and started interrogating me. He insulted me.
He gave me beating and told as to why I levelled allegation against P. Ws. Abdul Rehman and others. He further told me as to why I did not leave the mosque on their demand. I told him that since Mohalla people wanted me there, therefore he should not insist .On my leaving the Mosque.
Thereafter Sub-Inspector Akbar Ali started religious discussion with me. I told him to perform his own duty and not to indulge in religious discussion. P. W. Akbar Ali, Sub-Inspector told me that he was Ahl-e-Hadis and further told me why I recite Salat-o-salarn by standing and why I kiss nails of my thumbs and if I have to do so I should keep some stool on the nail of thumbs and kiss them. On hearing this I admonished him. Thereafter he called me again in his room and told that he had taken some bribe from the other party, however he would prepare a report under section 169, Cr. P.
C. And would release me if I pay Rs, 5,000, to him. He then informed me that he has turned out my father and my family from my house and has put his own lock. My family then went to the house of another Moulvi Sahib who is from my native place Dera Ghazi Khan. I was thereafter again detained, at Police Station for 10 days more Thereafter Sub-Inspector Akbar recorded F. I. R. Against me. Thereafter Sub-Inspector Akbar Ali obtained my signature on .a paper. Thereafter I was sent to.
Civil. Hospital for medical examination. I am innocent."
' Moulvi Sabir Ali took a different stand that he was involved because he advised the members of the Managing Committee of his mosque not to recite Salat-o-Salam after prayer since it disturbed others who offered prayer there.
14. Two witnesses Muhammad Adrees, D. W. 7 and Muhammad Afzal D. W. 8 were produced in defence by Moulvi Sabir Ali to prove alibi which was never pleaded by him. Six witnesses i. e. Abdul.
Karim D. W. 1, Ghulam Haider, D. W. 2, Ghulam Mustafa, D. W. 3, Muhammad Shafi, D. W. 4, Hafiz Ghulam Mustafa, D. W. 5, and Abdul Ghafoor, D. W. 6 were produced by Huzoor Bux, appellant. IS.
Abdul Karim, D. W. 1, Pesh Imam of Madini Masjad, Gulbahar stated that, that mosque was closed at about 9.30 p. In. And nobody could enter it later without his permission. The police did not enter the mosque nor he had seen the victim by in this case. He was in the mosque when Moulvi Huzoor Bux was arrested.
16. The witness did not make any mention of the Hujrah from where Huzoor Bux was arrested and Muhammad Sherif was recovered. That witness however, conceded that he never appeared before the police in connection with this case. He also admitted that he was on visiting and friendly terms with Huzoor Bux, appellant.
17. The other witnesses are of theft in the room. Of Huzoor Bux; Ghulam Haider, D. W. 2 was a student of Huzoor Bux. He did not remember the period when the theft was committed. According to him most probably it was the month of Rajib. Ghulam Mustafa, D. W. 3 and Hafiz Ghulam' Mustafa, D. W.
5 were sitting in the same room with him at a distance of 8 or 10 paces from the house of Huzoor Bux when they heard the voice of the breaking of the door. He. Saw Sarfraz, Umardraz, Rashid, Shafique, Abdul Rehman, Ghulam Hussain, Sharif, and Hanif standing in front of the house while Sarfraz and Umar Draz were breaking the lock with hammer. They were threatened on the point of pistol by Abdul Rehman (P. W.) when he tried to stop them. Ghulam Hussain was at that time armed with Dagger. After the lock was broken Abdul Rehman and Ghulam Hussain sat outside the house of Huzoor Bux while others entered it and brought out from their trunks, clothes and miscellaneous articles which they took with them. Huzoor Bux at that time had gone to the tomb of Abdullah Shah. Ghazi and he was informed about the occurrence after his return. He went to the house of Abdul Rehman, who told him that his by had done mischief and the stolen articles would be returned on condition that he (Huzoor Bux) left the mosque next day. When they refused to return the said articles, Huzoor Bux went to the police station at 4.00 p. m. Alongwith the witnesses, where he lodged the First Information Report. The Police Officer noted the names of the offenders and called them through a police constable but in the evening these persons were let out. Next day a police constable came and asked Huzoor Bux to accompany him since he was being called by the in charge Police Station. Thereafter he did not return. After the Esha prayer Abdul Rehman and others came to the house of Huzoor Bux and turned out his father and family members including females and children from their house and put their own lock on it
18. In cross-examination he stated that he did not know whether the theft had taken place in the beginning, middle or end of Rajah. Three trunks were stolen. He never went to the police station for the arrest of Huzoor Bux. He said that it was incorrect to suggest that no First Information Report was lodged about the theft.
19. Ghulam Mustafa P. W. 3, Moazzin of Masjid Darul Salam fixed the time of theft before the month of Rajab. He said that he was in the mosque when he heard commotion. He thus contradicted D. W.
2, who had said Gbulam Mustafa was with him in the same room. He saw Abdul Rehman, Sarfraz, Sharif, Ghulam Hussain and Umar Draz taking away household articles but did not remember what articles were stolen. He stated in cross-examination that Huzoor Bux had gone to the tomb of Abdullah Shah Ghazi before Rajab. Thus he contradicted D. W. 2 in respect of time of theft
10. Muhammad Shafi, Pesh Imam of Masjad Madni, Nai Abadi, new. Karachi stated that he worked as Naib Imam in Jamie. Masjid Darul Salm. There were disputes on the recitation of Salat-o-Salam among the people but he did not know the details. According to him, Ghulam Hussain, Abdul Rashid, Abdul Rehman and Haneef attacked Huzoor -Buz twice in his presence. They turned Huzoor Bux out of the mosque but occupied the post of Imam. Then he proceeded to give the details of theft.. He said when he reached alongwith Ghulam Haider, D. W. 2 at the place of occurrence, the lock had already been broken. It may be recalled that Ghulam Haider claimed to have seen the breaking of lock. The witness introduced a police constable also among the offenders and said that Abdul Rehman and one constable were standing outside the house. He added a tape- recorder and an umbrella to the details of stolen articles as given by Ghulam Haider, D. W. 2 Regarding the First Information Report of theft he stated that police did not record it, but only noted the names on a blank paper. After two days when he again came to Jarnia Masjid Darul Salem, he was informed that Huzoor Bux was taken away by the police.
21. In cross-examination he fixed the time of theft in the month of Jamadi-ul-Sani. He however, admitted that Satfraz and Abdul Rehman, P. W. 7 were of Brailvi School of Thought, thus giving a lie to the statement of the appellant.
22. Ghulam Murtaza, P. W. 5 claimed to be a Khadini of Masjid Darul Salam and fixed the time of the alleged theft in the month of Rabi-ul-Sani, Contrary to the statement of others he said that Abdul Rehman had brought the trunks from the house of Huzoor Bux. The persons who were breaking the lock were named as Umar Draz, Shafique, Haneef, Ghulam Hussain, although according to Ghulam Haider, D. W. 2 the. First Information Report of theft was given by Huzoor Bux after 4 p. m. Next day and then the offender was called but this Witness stated that the police arrested the persons, who committed theft in the morning of the next day and released them in the evening.
23. It has already been seen that according to the D. Ws. The father and family of Huzoor Bux were turned out from the house of Huzoor Bux but this witness stated that before arrest of Moulvi Huzoor Bux his family members resided with him permanently. Other witnesses said that a constable came to Huzoor Bux telling him that the Incharge police station had called him but this witness stated that on the 3rd day of incident of theft, police arrested Moulvi Huzoor Bux from his Hujrah. He admitted that he and Huzoor Bux, both belong to Dera Ghazi Khan. It was suggested to him that he was never a Khadim of the mosque which he denied but he could not give the name of the President of the Managing Committee or of any of its members.
24, Abdul Ghafoor Mujahad, D. W. 6, Khatib of Madni Masjid, 'K' area, Landhi Korangi fixed the time of theft as the month of Jamadi-ul-Sani. He stated that he went to Huzoor Bux at 11.00 a. In. But was told that he had gone for Ziyarat of some Darbar. He is a witness of occurrence of alleged theft but according to him some of those persons who were in the crowd were armed with pistol, although others bad shown the pistol with Abdul Rehman only. According to him three trunks and one tape- recorder were taken out. He said that two police constables came on the 3rd day of the theft and asked Huzoor Bux to accompany them since he was being called by the Incharge Police Station. On hearing later on that Huzoor Bux had not returned from the police station and his father and family members had been thrown out by the police, he went to the police station where Moulvi Huzoor Bux was in the lock-up. He informed him that he was detained by the Police Officer with a long beard, who asked him to give a receipt, that he had received the stolen property and that no theft had been committed to which he did not agree. The witness further added that the Police Officer also asked him to tell Huzoor Bux that he should execute the receipt, but the witness refused to do so. In cross-examination he said that theft had taken place in the month of September. According to him 10 or 12 persons were breaking the lock. He then contradicted himself by stating that one person was armed with a pistol.
25. Muhammad Idris, D. W. 7 and Muhammad Afzal D. W. 8 as stated above appeared as witnesses for Moulvi Sabir Ali. Muhammad Idris stated that on the 11th of Mara:, 1982, there was a public meeting of Seeratul Nabi after Isha Prayer which was addressed by Moulvi Sabir Ali also, who remained there till Fajar time. Muhammad Afzal. D. W. 8 stated that he also received an invitation on the 10th of March, 1982, for a meeting which was held in the evening. He had heard the speech of Moulvi Sabir All that day. He stated in cross-examination that the public meeting was held on 14th of Jamadi-ul-Sani and on the 15th of that month, there was Qur'an Khawani in the morning.
26. It appears very clear that except for a bare suggestion about objection of certain persons including Muhammad Haneef regarding the recitation of Darood-o-Salam after prayers no suggestion was made in cross-examination to any witness either about the theft or a First Information Report said to have been lodged by Huzoor Bux or about the dismissal of Huzoor Bux from the mosque and his restoration as Imam or about his father and family being turned out from the house after his arrest. The entire defence story is therefore, imaginary and an afterthought. The defence evidence of D. W. 2 to D. W. 6' is thus false within their knowledge. As seen above the defence version given by different witnesses is full of contradiction almost on each point. Some fixed the time of theft in Rajab, some in Jamad-ul-Sani. One witness fixed it in Rabi-ul-Sani and another fixed it in the month of September. It is worthwhile noticing that the month of Rajab started in the year 1982 on the 25th of April, when Huzoor Bux was' already in the lock-up since the 5th April, 1982. The 5th April, fell on the 10th of Jamadi-ul-Sani, Rabi-ul-Sani was several months earlier and September was several months later.
27. It was stated by most of the witnesses and was also stated by Moulvi Huzoor Bux in his statement under section 342, Cr. P. C. That his First Information Report was recorded but no such report has been placed on record. On the other hand D. W. 4 admitted that no such report was recorded. Some witnesses named Sarfraz and Umar Draz as persons breaking the lock, others assigned this duty to as many as five persons excluding Sarfraz. Some said that Abdul Rehman was standing at the door and other witnesses added a constable also in this category but according to the others Abdul Rehman was inside and had stolen the three trunks. The tanks were not mentioned by Huzoor Bux, appellant but they were mentioned by his witnesses. Only two persons said that tape-recorder was also taken away.
28. It was stated by D. W. 2 that the First Information Report was given after 4.00 p. m. The next day and then the offenders were called at the police station but one witness said that the offenders were called in the morning of the next day of the occurrence.
29. It is established that the story of theft and other versions given by the defence witnesses are a complete lie and the relations between complainant and Huzoor Bux had never been strained. If fact the First Information Report was delayed because Haji Mohammad Haneef did not believe Abdul Rehman that Moulvi Sabir Ali had been driving Mohammad Sharif on his motorcycle, he named Huzoor Bux as an accused only after seeing the chit. Exh. P. C. And after contacting Sarfraz P. W. Thus, there is no reason for false involvement of Huzoor Bux or Sabir Ali.
30. It is no clout true as urged by the learned counsel for Huzoor Bux appellant that the writing on the chit is not proved on record to be that of Huzoor Bux. The , learned Additional. Sessions Judge asked Moulvi Huzoor Bux to copy Exh. P.
6. He also secured another writing from him by dictating to him the contents of Exh. P.
6. It is difficult to say with certainty, whether these two writings compared with the writing in Exh. P.
6. But at least one thing is common in all the writings and this is the bad handwriting of these admitted documents as well as Exh. P.
6. However, this is not of much importance because Sarfraz made a categorical statement that the chit Exh. P. 6 was given to him by Haroon Bux appellant and there is no reason to disbelieve his evidence.
31. It is admitted by Huzoor Bux that Muhammad Sharif had in fact disappeared and was being searched by his father. It is also admitted by him that two weeks before the disappearance Muhammad Sharif had given up his studies under his futelage. In these circumstances the chit Exh.
P. 6 assumes importance. It is a complaint which says that Mohammad Sharif had not met him in spite of his attempts and if he did not meet him now he would visit his house next day.
32. Three witnesses P. W. 2 to P. W. 4 all teen aged boys claim to have seen the actual commission of offence of sodomy by Moulvi Huzoor Bux, appellant with Mohammad Shard'. P. W. 6 Mohammad Sharif, victim supported this. The learned counsel criticised this evidence as being unnatural for the reasons that the door had not been closed by. Moulvi Huzoor Bux and that he had admonished at least two of these boys next day. The evidence of P. W. 2 is that the appellant Huzoor Bux was in the habit of kissing the boys and pinching their cheeks. He said that even he was kissed by Huzoor Bux.
But even if the evidence of these three persons who have no grudge against the appellant be excluded, the evidence of Mohammad Sharif is sufficient to prove the charge under section 377 against Huzoor Bux particularly when it is corroborated by the circumstances of his being taken away by him to different places in the Provinces of Sind and the Punjab from the 11th of March, 1982 to almost two days before his arrest. The fact that the appellant did not go to Masjid Darul Salam and remained in the Hujrah of another mosque i. e. Mandi mosque alongwith Mohammad Sharif point out strongly for his unnatural affection for the by. In these circumstances the medical report about the injuries on th anal canal is also explained as being the result of the commission of this offence by Huzoor Bux.
33.. The learned counsel submitted that this evidence does not support the prosecution in view of its inconclusive nature. There is no merit in this argument since the doctor could not give a conclusive opinion because of his doubt that these injuries might be caused not only by force of mal organ but even by other hard. Substance. It is, therefore, clear that according to him the injury could be caused by penetration of a male organ too. The medical evidence is therefore, corroborative of the statement of Mohammad Sharif.
34. The taking away is proved by the evidence of Mohammad Sharif, P. W. 6 as well as by the chit Exh. P. 6 the evidence of Sarfraz in this respect, subsequent simultaneous disappearance of Mohammad Sharif as well as Huzoor Bux and ultimately the recovery of Mohammad Sharif from the same Hujrah in Madni Mosque from where simultaneously Huzoor Bux was arrested. It is also proved from the evidence of Mohammad Sharif as corroborated by the statements of Abdul Rehman and Abdul Rashid, P. W. 8 that Sabir Ali was seen taking Mohammad Sharif on his motorcycle.
35. The learned counsel for the appellant relied upon an affidavit dated 6-10-1982 said to have been sworn by Mohammad Sharif, P. W. 6 that he had given his evidence against Moulvi Huzoor Bux because Haroon, Sarfraz and Ghulam Ghous were beaten by the police with a belt and no act of sodomy was committed on him by Huzoor Bux. It is further stated in the affidavit that he was staying in a hotel and would be beaten by his paternal uncle Abdul Reftan, if he went home. This affidavit was produced by Mr. Abdul Latif Munshi, Advocate learned counsel for Huzoor Bukhsh, who submitted an application for recalling and re-examining Muhammad Sharif, despite the fact that all evidence had been closed by that time. The case was fixed for the 7th October, 1982 for the hearing of this application by the learned Additional Sessions Judge. On that date Mr. Abdul Latif Munshi sought adjournment for producing law in support of the application. On his request the matter was adjourned till the 12th of October, 1982.
36. Mohammad Sharif was produced by Mr. Abdul Latif Munshi on the 7th of October, 1982. His father was also present in the Court. He stated that Mohammad Sharif had been kidnapped by the brother of Huzoor Bux and requested that his custody be given to him. After the adjournment of the case the custody of the by was given to him and he was directed to produce him on the 12th of October, 1982. Mohammad Sharif was produced on that time by his father. The learned A. P. P. Filed a statement in the hand of Mohammad Sharif, P. W. That he was kidnapped on the 4th of this month by Abdullah brother of Huzoor Bux and was produced before the Advocate where he was threatened and was given a paper on which same statement was written. He was directed to copy it. He, therefore, copied it under fear. Thereafter he was kept at the house of Abdullah.
37. Mr. Abdul Latif Munshi requested that Mohammad Sharif be kept in the custody of some other person for two days and his statement be then recorded. The learned Additional Sessions Judge did not agree with this suggestion and dismissed this application.
38. The learned counsel for the appellant Huzoor Bux contended that the learned trial Court should have allowed the application and re-examined Mohammad Shull. I agree with the learned Additional Sessions Judge that such practice which involves taking away of a minor by by the brother of Huzoor Bux and then making him to swear a statement under threat or promise should not be encouraged. This is one of the methods of tampering with evidence and tampering should not be allowed. I put it to the counsel for the appellant whether Mohammad Sharif could be expected to give such statement which is ascribed to him if he had been informed about the provisions of section 193, P. P. C. And about the possibility of his being prosecuted or being punished under that section if he resoled from his statement on oath. The learned counsel conceded that he would not have given such a statement. Clearly the statement, even it be that of Mohammad Sharif could not have been obtained except either by some promises or by threat. It is more plausible that he might have been threatened, when he was in the custody of the relatives of litizoor flux. The Objection is, therefore, without force.
39. The statement of the defence witnesses produced on behalf of Sabir All is also false since it is clear from the evidence of Mohammad Afzal that the invitation was for the 14th and 15th Jamadi- ul-Sani 1. e. 9th and 10th of April, 1982. Moulvi Sabir Ali was already in the lock up-since the 30th March, 1982 and could not have given a leeture in the meeting held on 9th and 10th of April, 1982.
Mohammad Idris did not say that it was 14th and 15th of Jamadi-ul-Sani but he has been referring to the same event. His evidence is also a pack of lies.
39. In spite of this the question remains whether the appellant committed any offence under section 12 of the Ordinance.
40. Section 12 deals with the kidnapping or abduction of a male inter alia with the intent of committing carnal intercourse with him. Kidnapping can be of a male of less than 14 years of age if he is taken away or removed from the guardianship of his guardian (section 361, P. P. C.) In the present case the Doctor has found the age of Mohammad Sharif to be about 15 years. The offence could not be that of kidnapping.
41. Abduction is defined as either taking away by use of force or enticing away by deceit. There is no element of deceit or use of force in this case. There is only a threat that Huzoor Bux will publish the conduct of Mohammad Sharif if he did not run away with him. Mere use of threat cannot tantamount to use of force but in any case this is clearly an idle threat because the conduct of Mohammad Sharif was a result of illicit liaison with Moulvi Huzoor Bux. Any disrepute brought to the name of Mohammad Sharif would have more strongly involved Huzoor Bux. In these circumstances it is neither a ease of abduction nor a case of kidnapping. Section 12 does not apply to the case.
The appellants are, therefore, acquitted of this charge.
42. However, the charge under section 377 is established beyond any doubt against Huzoor Bux. His appeal in regard to his conviction and the sentence under section 12 is allowed but it is dismissed in regard to the conviction and sentence under section 377, P. P. C. He is entitled to the benefit of section 382 (B), Cr. P. C. The sentence of 10 years awarded to him shall therefore, be treated to include the period from the date of his arrest i. c. 5th of April, 1982 to the date of his conviction 1. e.
23rd of October, 1982.
43. The appeal of Moulvi Sabir Ali is allowed, his conviction and . Sentence is set aside and he is acquitted. He shall be released forthwith, if not required in any other case.
44. Notices shall be (served on Ghulam Haider, D. W. 2,, Ghulam Mustafa, D. W. 3, Mohammad Shafi, D. W. 4, Hafiz Ghulam Mustafa, D. W. 5, Abdul Ghafoor Mujahid, D. W. 6, Mohammad Idris, D. W. 7 and Mohammad Afzal, D. W. 8 to show cause why they may not be punished under section 193, P. P. C.