' Appellants Munir Ahmad alias Saien (since dead) and Yousaf Anjum alias Manni have brought the instant appeal against the judgment recorded on 16-12-1992 by Mr. Ala-ud-Din Arshad Nagi, learned Additional Sessions Judge, Khanewal, whereby he has convicted them under section 377 read with section 511, P.P.C. And sentenced them to suffer two years' R.I. Each and to pay fine of Rs,500 each and in default of the same to suffer further three months' R.I. Each in case F.I.R. No,165 dated 1-6-1991 registered with Police Station Tulamba, District Khanewal under section 12 of the Offence of Zina (Enforcement Hudood) Ordinance (VII of 1979) read with sections 377 and 511, P.P.C.
2. The appellant No,1 Munir Ahmad alias Saien had died on 24-6-2002. The report to that effect is available with this file. The same is accompanied by the attested copy of his death certificate issued by Secretary, Union Council No,75, City Tulamba, District Khanewal. View of his death, the appeal to his extent has abated. The same is dismissed as such.
3. Briefly the facts relevant for the disposal of the appeal as regards the appellant No,2/Yousaf Anjum alias Manni are that he and the said appellant Munir Ahmad alias Saien were booked by the police of Police Station Tulamba in the aforementioned case. The same was registered on the statement of Sabir Rasheed (P.W.3). He has mentioned therein that on 30-5-1991 at about 2-00 p.m. He went to take fodder from Toka Machine near Primary Health Centre of the said Town.
Yousaf Anjum alias Manni was standing at the gate of the hospital. Munir Ahmad alias Saien was also standing with him at that time. He went to them. They both caught hold of him from the arms and legs and shut his mouth with the hands. They took him to an under construction room there and shut him in the same. They broke away the string of his Shalwar and made him to lie on the ground and attempted to commit sodomy upon him. He raised alarm. On which Hakeem Akram, Zahoor and other residents of that Town gathered there. They pushed the door and thereupon both these accused fled away from the other door leaving him behind. His Shalwar from the front and shirt from the arm were torn. He had also received injuries on his body during that process. Had the witnesses not reached in time they then definitely would have subjected him to sodomy. His father Was not present at the house, who returned the next day. He obtained his medical report. The relatives of the accused had been requesting them not to report the matter to the police but his parents did not accede to their request. Hence, the case.
4. After investigation, they (appellants) both were challaned to Court.
5. They were formally challaned under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979) and section 377 read with section 511, P.P.C. They pleaded not guilty.
6. The prosecution at the trial in all examined its' five witnesses. They were Dr. Zafar-ul-Haq (P.W.1), Mureed Abbas, Head Constable (P.W.2), Sabir Rasheed, complainant (P.W.3), Muhammad Akram (P.W.4) and Muhammad Nawaz, S.-I. (P.W.5).
7. Dr. Zafar-ul-Haq has examined the complainant as well as the two appellants/accused. He deposed in respect of their examination conducted by him. He proved his reports in respect of their examination.
8. Mureed Abbas had recorded the F.I.R. Exh.P.E.
9. Sabir Rasheed has narrated the incident. Besides than this he has also stated to have lodged report/F.I.R. Exh.P.E. And produced his Shirt p.1 and Shalwar P.2 before the Investigating Officer, who took the same into possession vide memo. Exh.P.F.
10. Muhammad Akram has also narrated the incident. He is also an attesting witness of the Exh.P.F.
11. Muhammad Nawaz has deposed about his investigation of the case.
12. The two appellants in their examination under section 342, Cr.P.C. Have denied the allegation appearing against them in the prosecution evidence. They have stated that in fact the complainant had brought a boy to the under construction hospital in Tulamba. He wanted to commit sodomy upon him. They got rescued the boy from him. He threatened them that he will get registered the case of sodomy against them and ultimately in order to save his ownself has got registered against them falsely. They, however, did not opt to depose on oath as required under section 340(2); Cr.P.C.
13. The leaned trial Court after hearing the parties acquit them of the charge under section 12 of the offence of Zina (Enforcement of Hudood Ordinance (VII of 1979). It, however, convicted and sentenced them of the charge under section 377 read with section 511, P.P.C. As mentioned above.
14. The appellants feeling aggrieved of the same have brought the instant appeal.
13. 1 have heard the learned counsel for the appellant No,2 as well as the State.
16. Learned counsel for appellant No,2 has only contended before, me that the prosecution evidence on record is not confidence-inspiring and rather defence plea is more probable as compared to it but still the learned trial Court has convicted and sentenced him and so the same is not liable to be sustained.
17. As against the same, the learned State Counsel has supported the impugned judgment saying that prosecution evidence on record was worthy of placing reliance and it has rightly been done so and the defence plea rightly rejected.
18. I have carefully considered the submissions made from both the sides with the help. Of available record.
19. As is obvious from the above position, the complainant Sabir Rasheed and Muhammad Akram P.W. Have narrated the incident. Sabir Rasheed has stuck to his version as contained in the F.I.R.
Exh.P.E. Admittedly there was no enmity between him and the two appellants prior to the same. He, therefore, had no reason to falsely involve them in the case and to depose against them. His testimony stands corroborated by the evidence of Muhammad Akram. He though is his maternal- uncle but the same itself is not sufficient to discard his testimony. He has stated that on alarm he had reached the spot and found that Sabir Rasheed was lying on the ground and his Shalwar was off and the same as well as his shirt torn and he had injuries on his person and he was crying and the accused on their reaching there fled away. He, too, did not have any motive or cause to depose falsely against them (appellants/accused). His testimony, therefore, cannot be discharged for the above reason alone that he is related to him (P.W.3). His evidence has also established the presence of two appellants at the spot at the relevant time and that of the victim in the above condition.
20. From the evidence of these P.Ws. It has been established that the two appellants had attempted to commit sodomy upon the victim Sabir Rasheed.
21. The medical evidence had also corroborated this fact. According to the doctor, the victim boy had as many as seven injuries on his person and both the appellants were fit to perform sexual intercourse. This piece of evidence, thus is fully in corroboration to the evidence of the victim.
22. Muhammad Nawaz, S.-I. Had found both of them involved in the matter and that is why he had challaned them to the Court. There is nothing in his evidence to say that he had dishonestly investigated the case.
23. As regards the plea of the appellant No,2, there is no support to the same from anything on record. The same, therefore, was rightly rejected.
24. I am, therefore, convinced from the prosecution evidence on record that as regards the charge under section 377, P.P.C. Read with section 511, P.P.C. Against him, the same stood proved beyond any shadow of reasonable doubt. He, therefore, was rightly convicted of the same. The sentence awarded to him already is shorter one. Hence, there is no reason to further reduce it.
25. The impugned judgment, therefore, is maintained. The appeal, therefore, to the extent of Yousaf Anjum alias Manni has been found to be without any force. The same, therefore, is dismissed as such.
26. He (appellant No,2 Yousaf Anjum alias Manni) is on bail. Let the copy of this judgment be sent to the learned Sessions Judge, Khanewal for arresting him and committing -to jail to serve out his remaining sentence, if any. He, however, shall be given the benefit of section 382-B, Cr.P.C.
Inasmuch as that the period of his detention as under-trial shall be counted towards his sentence.
The amount of fine, if paid shall go to the State.