AHMAD NAEEM Versus STATE

NAZIR AHMAD BHATTI, J .--- Appellant Ahmad Naeem took alongwith him Zafar Iqbal aged about 16/17 years student of 7th Class and son of complainant Muhammad Hanif, on 26-8-1992. At that time the complainant and his brother P.W.11 Muhammad Latif were present in the house. The boy did not return to the house thereafter and the complainant party were searching for him when on 27-8-1992 at about 11-00 a.m. the dead body of Zafar Iqbal was recovered from near a water channel by the complainant and his brother. The former went to Police Station Dahrianwala, District Bahawalnagar and recorded F.I.R. No.96/92, wherein he charged the appellant for committing the murder of his son.

2. The post-mortem of the dead body of afar lqbal was carried out by P.W.2 Dr. Abdul Ghaffar on 27-8-1992 at 2-30 p.m. According to the autopsy there was a ligature mark below the thyroid cartilage encircling the neck horizontally and completely. According to the opinion of the doctor the cause of death was Asphyxia due to homicidal strangulation and the injuries were sufficient in the ordinary course of nature to cause death. According to the autopsy the probable time between injuries and death was 5 to 10 minutes and between death and post-mortem examination it was 16 to 30 hours. The doctor had also taken anal swabs of the deceased which were found stained with semen by the Chemical Examiner. The doctor then gave the opinion that the deceased had been subjected to sodomy before his strangulation.

3. The appellant was arrested on 18-9-1992 from his house and at his pointation a rope, an underwear stained with semen and cycle were recovered by P.W.18 Naveed Mumtaz S.I./S.H.O.

4. After investigation the appellant was sent up for trial before the Sessions Judge, Bahawalnagar who charged him under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under sections 377, 302 and 201, P.P.C. The appellant pleaded not guilty to all the charges and claimed trial. 18 prosecution witnesses were examined on behalf of the State whereas the appellant made a deposition only under section 342, Cr.P.C. He neither produced any defence nor made any deposition on oath.

5. After the conclusion of the trial the learned Sessions Judge convicted and sentenced the appellant as under:--

"For the offence under section 12 of the Hudood Ordinance the appellant was sentenced to undergo rigorous imprisonment for 20 years, to suffer 15 stripes and to pay a fine of Rs.15,000 or in default to further undergo rigorous imprisonment for 3 years. For the offence under section 377, P.P.C. the appellant was sentenced to undergo rigorous imprisonment 10 years and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for 2 years. For the offence under section 302(c), P.P.C. he was sentenced to ndergo rigorous imprisonment for 20 years. For the offence under section 201, P.P.C. he was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.2,000 or in default to further undergo rigorous imprisonment for one year. It has also been ordered by the learned Sessions Judge that the amount of fine if recovered, half of it be given to the legal heirs of the deceased under section 544-A, Cr.P.C. The learned Sessions Judge has ordered that all the substantive sentences of imprisonment shall run concurrendy."

He has challenged his conviction and sentence by the appeal in hand sent from jail. Criminal suo motu notice was also issued to the appellant under No.l/L of 1994. The appeal and the criminal suo motu notice are being disposed of by this single judgment.

6. There was no eye-witness of the occurrence. The case of the prosecution as disclosed in the F.I.R. was that the appellant had also attempted to commit sodomy with the deceased Zafar Iqbal about one month prior to the present occurrence and on his refusal had stopped him about which the deceased had made a complaint to his father. The F.I.R. further discloses that the complainant father of the deceased had complained of that occurrence to the father of the appellant and the latter had sought forgiveness and had undertaken not to repeat the alleged occurrence. Evidence was brought on the record to show that on 26-8-1992 the appellant had taken the deceased alongwith him from his house in the presence of his father and uncle and when he was taking the deceased on a cycle, both were seen together by P.W.11 Muhammad Latif and P.W.14 Abdul Ghafoor. The recovery of the dead body on the next day had shown that the deceased was first subjected to sodomy and then he was done to death by strangulation. There was the evidence of last seen together of the appellant and the deceased before the recovery of the dead body. The father and uncle of the deceased and two other independent and uninterested persons had seen the appellant and the deceased going together and thereafter the deceased was never seen alive and on the next day his dead body was recovered. As such there was brought strong evidence on the record by the prosecution to show that the deceased was last seen alive in the company of the appellant and thereafter nobody saw him alive and then his dead body was recovered. Consequently there was brought more than sufficient circumstantial evidence on the record to prove that the appellant had first committed sodomy with the deceased who was a minor young boy and could be easily overpowered by the appellant who is sufficiently mature. The circumstantial evidence also proved that after the commission of the offence of sodomy the appellant pressed the neck of the deceased with a string and caused his death by strangulation. The second offence must have been done by the appellant when the deceased may have threatened him to disclose to his elders the offence of sodomy committed with him forcibly by the appellant.

7. The simple denial by the appellant and that also without any oath was entirely insufficient to discharge the burden which have been thrown) B t upon him by the strong circumstantial prosecution evidence. The mere fact that the recoveries were not believed by the learned trial Judge would not make any difference. Even otherwise the learned trial Judge has given very appropriate reasons for discarding the recoveries in the impugned judgment in paragraph 12.

8. There was brought no evidence on the record from the side of the appellant to show that he had been falsely charged or that there was any animous against him by any of the 4 witnesses who had last seen the deceased alive in his company. Actually no evidence was brought on the record by the appellant to dispel the charges levelled and proved against him. The appellant had forcibly subjected deceased Zafar lqbal to carnal intercourse against the order of nature and for that purposes he had abducted the deceased. It was also proved that after the commission of the offence of sodomy the appellant had committed the murder of Zafar Iqbal by strangulation and had thereafter buried his dead body in order to destroy evidence against him. He was, therefore, guilty of offence under section 12 of the Hudood Ordinance and sections 377, -302 and 201, P.P.C. In so far as the offence under section 12 of the Hudood Ordinance and sections 377 and 201, P.P.C. is concerned, the appellant has been appropriately convicted and sentenced. However, the sentence of the appellant under section 302, P.P.C. is not according to law. Actually the appellant was guilty of "Qatal-e-Amad" under section 302, P.P.C. and he should have been dealt with under clause (b) thereof for the purposes . of sentence and the minimum sentence was imprisonment for life as Tazir. We C have, therefore, came to the conclusion that the learned trial Judge erroneously convicted and sentenced the appellant under clause (c) of section 302, P.P.C. for the offence of "Qatal-e-Amad", he should have been imposed one of the sentences provided in clause (b) of the aforesaid section. Keeping in mind this legal position we had issued a suo motu show-cause notice to the appellant as to why his sentence be not enhanced. The appellant has failed to show any reason as to why he should not be dealt with under the provisions of clause (b) of section 302, P.P.C. Consequently while we uphold the conviction of the appellant under section 302, P.P.C. as well but we sentence him to imprisonment for life under the provisions of clause (b) thereof and modify the sentence of imprisonment awarded by the learned trial Judge for this offence accordingly with no change in the remaining sentences awarded to the appellant by the learned Sessions Judge. We also find no force in the appeal and we dismiss the same as well. All the substantive sentences of imprisonment shall run concurrently. The appellant shall also be entitled to the benefit under section 382-B, Cr.P.C. The suo motu notice is also disposed of accordingly.

N.H.Q./903/FSC ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.