ABDUL GHAFFAR Versus THE STATE

MUFTAKHIRUDDIN, J. --This is an appeal against the order of conviction dated 28-9-1987 passed by Hafiz Khalil Ahmad, Additional Sessions Judge, Faisalabad whereby the appellant Abdul Ghaffar son of Din Muhammad Arain has been convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and also under section 377, P.P.C. and sentenced to undergo R.I. for ten years and also to pay a fine of Rs.10,000 or in default of payment of fine to further undergo R.I. for six months with twenty stripes under section 12 of the said Ordinance and sentenced to five years R.I. with fine of Rs.5,000 or in default of payment of fine to further undergo R.I. for six months. The fine if recovered, half of it to be paid to the legal heirs (guardians) of the deceased (the word deceased appears to have been written unintentionally). The appellant has been allowed the benefit of section 382-B, Cr.P.C. for his detention during the trial.

2. One Wallayat Ali son of Nawab Din, a resident of Chak No. 215 R . B. Mohalla Fatehpur (Factory Area) in Faisalabad lodged a report at police station Saddar Faisalabad on 23-4-1986 at 3-35 p.m. (noon) that on that day his son named Hassanat Ahmad aged about five years when did not return home after play was searched by him, and was accompanied by Javed Iqbal (P.W.5) and one Muhammad Jaffer. When he reached near the factory of Shaikh Habib heard the cries of his son. The gate of the, factory was open and when they reached near the internal room of the factory saw that Hassanat Ahmad had been laid on the ground half naked and the accused Abdul Ghaffar was committing unnatural offence with him. The victim was weeping. When the 'Lalkara' was raised the accused escaped. Hassanat Ahmad informed that the accused had offered some money to the child and was taken to the factory where the sodomy was committed with him by the accused. The report was recorded by Muhammad Akram A.S.I. at the police station and the victim was sent to D.H.Q Hospital. Faisalabad where Dr. Muhammad Ajmal Mian (P.W.3) examined him and sent the medico-legal report alongwith a phial containing anal swabs from the victim for the analysis of the Chemical Examiner. The phial and envelope received was kept in malkhana by Muhammad Akram (P.W.1) and later sent through Hamid Javed (P.W.2) to the Chemical Examiner. The accused was examined for potency by Dr. Capt. Mumtaz Ahmad (P.W.7) and after the receipt of the report of the Chemical Examiner the accused was challaned and on the denial of the charges the prosecution examined eight witnesses P.W.1 (Muhammad Akram). P.W. 2 (Hamid Javed) proved the registration of the F.I.R. and the safe custody of the phial parcel and its onward transmission to the Chemical Examiner Lahore. P.W.3 (Dr. Muhammad Ajmal Mian) stated that he had found on the victim (Muhammad Hussanat aged about 5 years, the following injuries.-

"(1) A lacerated wound 1 cm x 1/3 c m muscle deep situated radically at 12 O'clock position of anus.

(3) A lacerated wound 3/4 cm x 1/4 c m muscle deep situated radically at 6 O'clock position of anus.

(3) An abrasion 3/4 c m x 1/4 cm situated radically at 7 0'clok position of anus." and opined that these injuries were the result of the commission of sodomy within the duration of three hours. The wounds were bleeding during examination and were very painful for the injured child who had been crying during the course of examination. The anal region was congested all around. The MLR and the report of the Chemical Examiner (Ex.PB) established that the swabs were found stained with semen and blood. According to the doctor sodomy was committed with the victim boy.

P.W.4 (Walayat Ali) and P.W.5 (laved Iqbal) and P.W.6 (Muhammad Hassanat) narrated the incident. P.W.7 (Dr. Capt. Mumtaz) deposed that he had examined the accused Abdul Ghaffar aged about 18 years, found him potent. P.W. (Zafar Ullah S.I.) is the investigating officer. The accused in his statement under section 342, Cr.P.C. denied the commission of the offence and pleaded that he was involved falsely. In his statement recorded under section 340(2), Cr.P.C. took up the plea that the father of the victim had demanded commission of a plot purchased by his father (accused) and there was a quarrel on that account and said that actually it was son of Tullah Kanbok who had committed sodomy with Hassanat and was let off by the complainant after having been. paid some amount. It is to be noted that during the examination of P.W. 4, the plea was put and it was denied. Walayat Ali (P.W.4) had said that he did not deal with any property and he deals in cars and has a show room near the Railway Station. No other witness in defence was produced.

After assessing the evidence on record the accused was found guilty of the charges and was sentenced as mentioned above.

3. The learned counsel appearing for the accused/appellant has assailed the order of conviction and sentences and has argued that the provision of section 12 of the said Ordinance is not attracted as the victim was taken only to a place nearby and has placed reliance on the observation of the Supreme Court of Pakistan in Muhammad Akhtar's case (1986 SCMR 533). The learned counsel has submitted that no independent witness has been examined by the prosecution. According to him the offence of sodomy is not thus established against the accused. The appellant according to the learned counsel a young boy of about 18 years is first offender and thus deserves that a lenient view should have been taken.

We have gone through the evidence and found that the victim was taken to the factory which is a place nearby and the provision of section 12 of the said Ordinance is not applicable. We accordingly set aside the conviction of the appellant under section 12 of the said Ordinance but find the conviction of the appellant under section 377, P.P.C. unassailable. The evidence of the victim and that of Wallayat Ali and Javed Iqbal has established the prosecution case beyond doubt. The witnesses are natural witnesses and nothing has been brought on record which may discredit them and no enmity worth the` name has been proved against the P.Ws. The commission of the offence of sodomy is even admitted by the accused and the trial Court was not persuaded to believe that the accused was substituted for the son of Tullah whose name even could not be disclosed by the appellant. We are also of the view that the father of the victim could have no motive to falsely involve the accused/appellant and could gain nothing for the substitution. Wallayat Ali is a financially better off person and could not compromise his family honour for the money which has not been even disclosed by the accused. The defence plea has thus been rightly found totally unbelievable and unreasonable. The conviction under section 377, P.P.C. is thus found by us unassailable and the same is upheld and the sentence passed therefor is not found excessive.

With the above observation the appeal is partly allowed but the conviction under section 377, P.P.C and the sentence passed by the trial Court is maintained.

S.A./411/F.Sh. Appeal partly accepted.