' Rab Nawaz (20/22 years) son of Khuda Bakhsh, Pies Hussain (18/19 years) son of Allah Wasaya and Tanveer (17/18 years) son of Muhammad Afzal residents of D.I. Khan City were tried by the learned Sessions Judge, D.I.Khan for an offence under section 377, P.P.C. And on conviction under the said section were sentenced each to seven years R.I. And a fine of Rs,1,000 or in default to undergo further two months S.I. Each. Aggrieved by their conviction and sentences Rab Nawaz has filed independent Criminal Appeal No,1 of 1987 while Piyas Hussain and Tanveer have filed joint Appeal No,2 of 1987. Since both the appeals are the outcome of the same transaction I would like to dispose them off through this judgment.
2. Facts in brief as detailed in the F.I.R. Are that on 14-9-1985 at about 9-00 p.m. Zaffar Abbas, a boy of about 13/14 years, after purchasing some sweetmeat from Jan Bakers near Topan Wala Gate, while proceeding to his house passed through the Bazar he saw Piyas Hussain accused-appellant present at his milk shop alongwith two others and on seeing the complainant he came down the shop, caught hold of the bicycle of the complainant and took him towards his shop. The bicycle and, the bag of sweetmeat were placed in the shop and ['was Hussain alongwith his two companions forcibly took him at. The Balakhana of the shop of .Piyas Hussain where the complainant as threatened with dire consequences and subjected to sodomy by force. Thereafter, the complainant was allowed to go and asked not to disclose the affair to anybody. The complainant took the bag of sweetmeat and mounted the bicycle towards his house and when reached near the Thalia at Mohallah Joyanwala he was caught hold of by Naeem, Ghulam Shabbir and their 3rd companion, slaped him and asked him to accompany them and at Hussania Chowk he was taken to a Balakhana where Ghulam Shabbir was residing. Ghulam Shabbir and his companions took off his Shalwar and all the three one by one rubbed their male organs in the thighs of the complainant and Naeem took his photograph as well whereafter he was let free with threat not to disclose the affair to anyone. The complainant who was residing in the house of his maternal-uncle, went to the said house and slept there without making reference to the incident to anybody. In the morning as usual the complainant went to the school and after the close of the school when he returned home he found his father there and informed both his father and maternal-uncle of what had happened whereafter he was taken to the Police Station and he lodged the report. This report was recorded in the Police Station City D.I.Khan and a case under section 377, P.P.C. Read with Article 12 of the Hudood Ordinance was registered vide F.I.R.No,276 dated 15-9-1985. After registration of the case the three accused namely Piyas Hussain, Muhammad Naeem and Ghulain 'Shabbir were arrested on different dates by the local Police and the two companions of Piyas Hussain mentioned in the F.I.R. Were subsequently identified in an identification parade by the complainant as Rab Nawaz and Tanveer and the 3rd companion of Naeem and Ghulam Shabbir, was identified to be Bashir Hussain accused who too were arrested by the Local Police. After completing the investigation a complete challan was put in the Court of Sessions Judge, D.I.Khan who on the completion of the trial acquitted all the accused of the charge under Article 12 of the Hudood Ordinance and convicted Rab Nawaz, Piyas Hussain and Tanveer under section 377, P.P.C. And sentenced them as referred to above while Muhammad Hanif, Ghuiam Shabbir and Muhammad Naeem were acquitted altogether.
3. I have heard the arguments of the learned counsel for the appellant and the learned Assistant Advocate-General on behalf of the State respondent and have also thoroughly examined the record of the case.
4. Zafar Abbas complainant while appearing as P.W.1 reiterated the story as given by him in the F.I.R.
In cross-examination, however, he categorically stated that the persons who had committed sodomy upon him and had taken him with them to different 'Balakhanas' were not the accused present in Court. He further 'illustrated that the accused present in Court were not the persons who had committed sodomy upon him. With regard to the identification parade he asserted that the present accused were shown to him prior to the identification parade by the Police and he was asked to lay hand on them in the said parade. He further went on 'to admit it was correct that since the real culprits were not identified by him and were not known to him, therefore, he did not lodge the report promptly. He admitted it to be correct that he lodged the report against the present accused after consultations with his father and maternal-uncle. Khuda Bakhsh father of the complainant appeared as P.W.3 and in examination-in-chief while he did not refer to the facts of the incident in cross-examination he stated that he had not seen the occurrence but had derived it from one Imam Bakhsh. Fida Hussain maternal uncle of the complainant was produced as P.W.5 and in his examination-in-chief he did not reiterate a single word towards the incident and confined himself only to have witnessed the taking into possession and packing into a sealed parcel of the 'Shalwar' of the complainant. In cross-examination, however, he stated that Zafar Abbas complainant had come to him in his shop where after he accompanied him to the Police Station for lodging .The report. He further went on to say that he was still present in the Police Station 'when P.W. Khuda Bakhsh i,e, father of the complainant also arrived there. This is in nutshell the prosecution evidence on which the learned trial Judge has convicted the three accused- appellants and has acquitted revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.