' Irfan Ahmad son of Muhammad Yousaf and Umar Farooq son of Muhammad Farooq were tried by Additional Sessions Judge, Gujranwala in case F.I.R. No,102 registered at Police Station, Peoples Colony, Gujranwala on 3-3-1998 under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and section 377, P.P.C. For an occurrence, said to have taken place on 2-3-1998 some time in the evening.
' Learned trial Judge vide judgment, dated 18-1-1999 acquitted Umar Farooq. Irfan was acquitted of the charge under section 12 of the said Ordinance. However, he was held guilty of having committed offence under section 377, P.P.C. Convicted accordingly and sentenced to undergo R.I.
For seven years plus to pay a fine of Rs,20,000 in default whereof to undergo S.I. For six months.
Benefit of section 382-B, Cr.P.C. Was extended.
2. Irfan accused has filed appeal against his conviction and sentences.
3. F.I.R. Exh.P.A. Was registered at Police Station, Peoples Colony on 3-3-1998 at 7-00 a.m. By Arif Hussain Shah, S.-I. (P.W.10) on the statement of Mahmood Ahmad, father of Atta-ur-Rehman, P.W.3 one of the victims in this case.
' According to F.I.R. Atta-ur-Rehman and Iftikhar Ahmad were sitting in Milad-e-Mustafa Park, in People Colony at evening time on 2-3-1998. After Maghrib prayer, Mir Umar Farooq armed with a Kalashnikov, accompanied by Irfan (appellant) came there. They took away Atta-ur-Rehman and Iftikhar Ahmad, at Kalashnikov point to the house of Irfan, in the same colony, where each one of them committed sodomy with Atta-ur-Rehman and Iftikhar Ahmad turn by turn. They brought them out in the street at 8-30 p.m. On coming out, both the boys i.e, Atta-ur-Rehman and Iftikhar Ahmad raised noise. Abdur Rauf, Ehsan Ullah and complainant, reached, hearing the noise. On seeing them accused ran away. Victims narrated the occurrence to them. Father of Atta-ur- Rehman took him to his house. He (father of Atta-ur-Rehman) lodged F.I.R. On the following day at the police station.
4. Arif Hussain Shah, S.-I., after registering the case, got Atta-ur-Rehman and Iftikhar Ahmad medically examined, whereafter, he recorded statements of the witnesses and visited the spot. He prepared rough site plan and arrested both the accused. He got them also medically examined qua potency. After completion of necessary investigation, he got the challan submitted to Court.
5. Statements of ten P.Ws. Were recorded at the trial.
Dr. Rao Asif Ali Khan, who had medically examined Atta-urRehman and Iftikhar Ahmad on 3-3-1998 appeared as P.W.5. He had noted abraded area about 1 x 1 c.m. At 12'O clock position, outside the external sphincter of Atta-ur-Rehman. He had not found any injury on inner side of anal. He removed three inner swa bs for being sent to the office of the Chemical Examiner. On receipt of report from the office of the Chemical Examiner that swabs were stained with semen, he opined that sodomy had been committed with the boy.
' On examination of Iftikhar Ahmed he had not noted any injury on the anal area (outside the anus as well as inner side of the anus). He removed three anal swabs for being sent to the office of the Chemical Examiner for detection of semen. On receipt of positive report, from there, that swabs were stained with semen, he expressed opinion that the boy has been subjected to sodomy.
' The same doctor had medically examined appellant as well, as Mir Umar Farooq for potency and had expressed opinion that they were fit to perform sexual intercourse.
6. Mehmood Ahmed, complainant while, appearing as P.W.3, re-narrated the facts given by him in the F.I.R. During cross-examination, he admitted that he had not witnessed the occurrence, and had lodged F.I.R., on the information supplied to him by the victims and Abdur Rauf, P.W. He explained that he had not lodged the F.I.R. On the same night as relatives of the accused had approached him for patch-up. ,He admitted that he had supported Rauf Mughal, in the last general elections against Jamshed. He expressed ignorance, whether the families of the accused, had supported Jamshed, who had lost the elections. He denied the suggestion that the accused had caught Iftikhar, P.W. Committing sodomy with his son, Atta-urRehman and they had beaten them alongwith some others and then had taken them to the police station. The suggestion, that he and father of Iftikhar had reached the police station and had managed to lodge a false report against the accused to save his son and Iftikhar was rejected by him.
7. Atta-ur-Rehman, P.W.1 stated that he was sitting alongwith Iftikhar in Milad-e-Mustafa Park in Peoples Colony at evening time on 2-3-1998. Umar Farooq had come there armed with Kalashnikov, accompanied by Irfan and had taken him and Iftikhar at Kalashnikov point to the house of Irfan. Irfan had taken him to the Baithak of the house and committed sodomy with him while Mir Umar Farooq had taken Iftikhar to the upper storey of the house and committed sodomy with him. He added that thereafter Irfan, left the Baithak and went up to the second storey while Mir Umar came to the Baithak and committed sodomy with him while Wan committed sodomy with Iftikhar on the upper storey. He stated that thereafter both the accused brought them to the street, where he and Iftikhar raised alarm which attracted Abdur Rauf and Ehsan Ullah, P.Ws. On seeing them accused ran away. They narrated the occurrence to the P.Ws. He stated that he had also narrated the occurrence to his father. During cross-examination he admitted that neither he had witnessed commission of sodomy by the accused with Iftikhar, and nor Iftikhar had witnessed commission of sodomy with him (P.W.1). He stated that he had stayed in his house, for the night and had gone to the hospital on the following morning. He claimed that he had given complete narration of the occurrence to his father. He denied the suggestion that parents of Mir Farooq had purchased the house, which his father wanted to purchase and so his father was annoyed with them and had falsely involved Mir Farooq in this case. He admitted that they had supported Rauf Mughal in the last general elections against Jamshed. However, he expressed ignorance whether parents of accused had supported Jamshed. He denied the suggestion that the accused had caught him and Iftikhar, when Iftikhar was committing sodomy with him, in the bushes of the park on the day of occurrence and they had beaten them and taken them to the police station. He denied the suggestion that his father alongwith his friend had reached the police station and had got them released and instead got this case registered against the accused.
8. Iftikhar Ahmad, P.W.2 by and large corroborated the statement made by Atta-ur-Rehman, P.W.1.
During cross-examination, also, he made statement similar to the statement made by P.W.1. The suggestions, put to P.W.1, were put to this witness also, which he rejected in the same manner as done by P.W.1.
9. Abdur Rauf, P.W.4 corroborated the statement made by Mehmood Ahmad, P.W.3. He was cross- examined on the same lines as done with Mehmood Ahmad. By and large he made statement similar to the statement of Mehmood Ahmad during cross-examination also.
10. Arif Hussain Shah, S.-I. Who had registered the case, got the victims medically examined, recorded statements of the witnesses, visited the spot, arrested the accused, got them medically examined, investigated the case and got the challan submitted to Court appeared as P.W.10 and deposed those facts on oath. During cross-examination, he denied the suggestion that he had not conducted the investigation impartially. He denied that Wan accused had produced before him both the victims on 2-3-1998 claiming that they were caught committing sodomy and that in spite of the fact that he had come to know that Iftikhar was caught committing sodomy with Atta- urRehman, he had registered the case against Irfan and his co-accused in connivance with the complainant.
' Positive reports Exh.P.G. And Exh.P.H. From the office of the Chemical Examiner were tendered in evidence.
11. Appellant as well as Mir Farooq (acquitted accused) during statements under section 342, Cr.P.C.
Denied the prosecution case and pleaded innocence. Both of them took up the plea that they had been involved in this case due to political rivalry and animosity with the parents of the victims.
Neither the appellant nor the acquitted accused produced any evidence in defence nor chose to make statement under section 340(2), Cr.P.C.
12. Learned counsel for the appellant after having gone through the evidence, argued the case at some length, but then chose not to contest the conviction of the appellant. However, he prayed for reduction in the sentences.
13. Notwithstanding the fact that the learned counsel for the appellant have not challenged the conviction, I have examined the prosecution evidence carefully and I am convinced that prosecution had successfully proved the case against the appellant. In that, defence had failed to bring anything on record to show that the complainant, victims or Abdur Rauf, P.W. Had any specific enmity or differences with the family of any of accused. Although P.Ws. Admitted that victims family had supported Rauf Mughal in the last elections but they had shown ignorance about the accused having supported Jamshed as opponent. Even if that was correct, it would not make any difference to the merits of this case and accused at no stage alleged that Rauf Mughal had taken any part in the involvement of the accused in this case or had come forth to help complainant party. The suggestion put forth to the victims, complainant and Rauf, P.W., that actually Iftikhar had been caught committing sodomy with Atta-ur-Rehman by the accused and that they had beaten them with the help of others and had taken them to the police station and reported the occurrence and that the father of the victims had managed to save their sons and got a case registered against them, was not only outrightly rejected by each one them, but even otherwise appears to be absurd. Had such a thing happened police could not have hushed up the same. Moreover, what benefit was drawn out of this chain of story, by father of Atta-ur-Rehman.
The reputation which his son Atta-ur-Rehman would have been carrying being victim of sodomy with Iftikhar, is, now, in the field, that he had been subjected to sodomy by Mir Umar Farooq and Irfan? Moreover, had such a thing happened, at least some one of those persons who had publically beaten both the victims alongwith the accused and had gone to the police station, would have definitely come up in defence of the accused but none appeared at the trial to vouchsafe that fact. This being the position, I am fully convinced that the prosecution had proved the case against the appellant. Unfortunately nobody took interest in the matter after the impugned judgment was passed otherwise if the State or the complainant party had moved, the acquitted accused might also have been taken to task.
As a result of the above discussion, conviction of the appellant is maintained. However, keeping in view prayer and contentions of the learned counsel for the appellant and facts and circumstances of the case, I feel inclined to reduce the sentence of imprisonment of R.I. For seven years to R.I. For four year. The sentence of fine is reduced to Rs,5,000, irr default whereof to 'suffer S.I. For six months.
Benefit of section 382-B, Cr.P.C. Shall be given.
Sentence reduced.