SHER MUHAMMAD Versus STATE

RAO IQBAL AHMAD KHAN, J. ‑‑‑ On the basis of F.I.R. No.71 of 1991 (Exh.P.A./1), dated 2‑11‑1991, recorded at Police Station Yakki Gate, Lahore for the commission of crimes punishable under section 302/377, P.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordin ance No.VII of 1979, and consequential report on the basis of investigation submitted under section 173, Cr.P.C., accused Sher Muhammad son of Abdul Subhan, aged 40 years (at the time of commission of crime), goldsmith by profession, Sheikh by Caste and resident of House No. 1152‑G, Inside Yakki Gate, Lahore, having been tried for the commission of the said crimes, was held guilty of having committed crime under section 377, P.P.C. against the person of Muhammad Saleem, aged about 15 years, as well asunder section 302, P.P.C. for having murdered him later, by the learned Additional Sessions Judge, Lahore vide his judgment, dated 25‑3‑1992 and as a result convicted and sentenced to ten years' R.I., under section 377, P.P.C. with a fine of Rs.5,000 or in default of payment of fine, ordered to undergo one year's R.I., with benefit of section 382‑B, Cr.P.C., and convicted and sentenced to death sentence for the murder of said Muhammad Saleem, the convict has filed this appeal against the said judgment on various grounds and prayed that the same be set aside and he be acquitted.

2. The learned Sessions Judge has submitted reference for the confirmationof the death sentence.

3. We propose to dispose of the Murder Reference No.493 of 1992 as well as the appeal vide this judgment.

4. The total number of prosecution witnesses examined by the learned trial Judge was fourteen. Learned Prosecutor gave up P.Ws. Barkat Ali, Sh. Lal Din, Muhammad Younas and Sh. Nazir Ahmed as unnecessary. The complainant father of the deceased Muhammad Saleem was examined as P.W.4 and the doctor who first examined the deceased when he was alive, appeared as P.W.11 i.e. Dr. Aftab Younas. He found the following injuries on the person of Muhammad Saleem.

(1) Abrasion on left cheek below left eye.

(2) Abrasion to the left of left angle of mouth.

(3) Abrasion on left shoulder.

(4) Abrasion over right shoulder.

(5) Blood present in both nostrils.

(6) there was whitish dried material over left thigh. Anus examined. There was a longitudenal tear present in 12 O'Clock position in lithotomy position. External swabs taken from around anus and left thigh and packed in a bottle. Rectal swabs taken, sealed in bottle No.2. No stains seen over Shalwar, Kamiz and Bunyan. Swabs sent for Chemical Examination.

(7) as poisening was also suspected, blood and urine samples taken for Chemical Examination.

He advised X‑rays skull, A.P. and Lat. In his opinion injuries Nos.3 and 4 were simple, all the rest were kept under observation. The injuries were fresh. After the receipt of Chemical Examiner's Report Exh.P.F. injury No.6 was due to sodomy as the rectal swabs were stained with semen and sperms were microscopically identified. Exh.P.G. is correct copy of medico‑legal report.

5. The doctor who conducted post‑mortem examination appeared as P. W.9 i.e. Dr. Arif Rashid Malik, Demonstrator, K.E.M. College, Lahore. He found the following injuries on his person.

(1) there was an abrasion reddish brown in colour 4 x 5 c.m. in size situated on left cheek, just below and outer to left eye.

(2) an abrasion reddish brown in colour 1.5 x 1 c.m. in size showing vital reaction situated on left cheek just below and outer to left nostril.

(3) an abrasion reddish brown in colour 5 x 2 c.m. in size situated on the left side of face just below and outer to left lower lip.

(4) a bruise bluish in colour 1.5 x 1.5 c.m. with laceration .5 x .3 c.m., on the inner aspect of left part of lower lip.

(5) an abrasion reddish in colour 2.5 x 1.5 c.m. on the top of left and right shoulders.

(6) an abraided area 20. x 6 c.m. vertically placed reddish brown in colour showing vital reaction on the left outer part of chest, 10 c.m. away from mid line, 11 c.m. below top of shoulder, 12.5 c.m. above left anterior superior iliact spine.

(7) there was a laceration superficial 1 x .5 c.m. reddish in colour on the anterior aspect of anal opening i.e. at 12 O‑Clock position in lithotomy position going into anal canal. 3 anal swabs were taken and sent to Chemical Examiner for detection of semen.

(8) there were injection marks on both cubital fossase and back of wrist of right side.

(9) Muscles of neck namely sterno cleido mastoid, scalenianterior of both sides were bruised.

(a) Right side muscles bear bruise 5 x 7 c.m. and more marked.

(b) Left side muscles bear bruise 4 x 3 c.m.

Hyoid bone was not fractured.

According to the doctor, the cause of death was manual interference at the neck precipitating irreversible brain damage and according to him the deceased had been subjected to unnatural sexual intercourse.

6. The complainant/first informant‑father of the deceased deposed before the learned trial Judge that his son Muhammad Saleem was learning the art of gold‑smith (jewellery making) from accused Sher Muhammad and at about 8‑00 a.m., he went to the shop of said Sher Muhammad (on 2‑11‑1991) after taking breakfast; that at about 9‑00 a.m. he (P.W.) passed by the shop of accused while going to his own shop and saw his own son enter the shop of accused; that at about 9‑40 a.m., accused Sher Muhammad came to him at his shop and told that his son was lying unconscious on the floor of his shop. He rushed to the shop of the accused and three other shopkeepers, Younas, Lal Din and Muhammad Ashraf also accompanied him. When he reached there, he saw his son lying on the ground his face downward. He picked him up. He was unconscious and blood was oozing out of his nose and mouth. He boarded a rickshaw and took him to Mayo Hospital, but he breathed his last there at about 6‑15 p.m. The police official arrived in the hospital and recorded his statement (Exh.P.A.).

8. In cross‑examination he stated that his son was going to the accused for the last about 8 days. He further said that he had sent his son as a pupil to the accused in the belief that he would teach him how to make ornaments.

9. Sh. Muhammad Ashraf appeared as P.W.5 and stated that he alongwith Akram and others went to the shop of the accused as the accused had told that son of the complainant was lying unconscious and saw that the son of the complainant Akram was lying on the floor ‑‑‑ his face downward; that he was lifted and taken in a rickshaw to the Mayo Hospital where he breathed his last at about 6‑30 p.m.

10. P.W.6, Prince Umar and P.W.7 Farooq Ahmad deposed about the perturbance of the accused on the day of occurrence at about 9‑30 a.m. P.W.6, was a resident of Inside Dehli Gate and said that he had seen the accused going towards Bazar at about 9‑30 a.m., in a perturbed condition when he (P. W .) was going to the Bazar for purchase of household articles; that he asked him (about that) but he replied that nothing had happened. Meanwhile Farooq Ahmad, his friend also came there; that both of them saw Muhammad Saleem lying in the shop of the accused in unconscious condition; that they thought that they should inform the father of the boy but in the meantime he (father) arrived alongwith 4/5 persons. They removed Muhammad Saleem to hospital.

11. P.W.7 Farooq Ahmad, stated that he knew the accused and he runs a shop in Chowk Masjid Wazir Khan and the shop of the accused is at a distance of two lanes from his shop; that about four months back (the witness appeared in the Court on 1‑3‑1992 and this occurrence took place on 2‑11‑1991), he was coming from his house and proceeding towards his shop at about 9‑30 a.m., and when he was passing through the street wherein the shop of the accused was, Prince Umar (P.W.6) met him and Sher Muhammad was hastily passing; that he asked Prince Umar as to what was the matter, but he replied that he did not know; that then he and Prince Umar entered the shop of the accused and saw that a child was lying there ‑‑‑ his face downward ‑‑‑ whose name was Muhammad Saleem; that he asked Prince Umar that he should inform the father of the child but in the meanwhile the father of the child reached there with three of his neighbours. The child was removed to the hospital. The accused was arrested in this case on 23rd November, 1991 as per testimony of P.W.12. The police official after arrest of the accused recovered the clothes of the accused from a box lying inside his shop vide shirt P.1 and Shalwar P.2, memo. Exh.P.O., in the presence of two P.Ws. Muhammad Ashraf and Lal Din. The Investigating Officer stated that since there was a stain on the Shalwar, he sent the same to the Chemical Examiner by making it into a sealed parcel.

12. The accused in his statement under‑section 342, Cr.P.C., admitted that he ran the shop of gold‑smith in Haveli Mian Sultan, Dehli Gate, Lahore and Muhammad Saleem, 'deceased son of the complainant was his pupil since last seven days prior to the occurrence. He answered other questions in negative including the recovery of his clothes after his arrest and even did not admit that the clothes were his. He took up the plea that he was involved in this case due to suspicion but he declined to make statement on oath under section 340(2), Cr.P.C.

13. Learned counsel for the appellant took up the plea that the accused was involved in this case due to suspicion. His plea was that none saw the accused committing sodomy with the deceased and the third argument taken up by him was that there was no witness who saw the accused kill the deceased. He, therefore, pleaded that the conviction of the accused either on the charge under section 377, P.P.C. or under section 302 was not proved and, therefore, he was entitled to be acquitted.

14. As against it, learned counsel for the State supported the impugned judgment by saying that the case against the accused was proved and he was rightly convicted and sentenced.

15. We have minutely gone through the entire record and considered the contentions of the learned counsel for the appellant.

16. It is admitted by the accused himself that the deceased was working with him as his pupil. It is also proved by the prosecution evidence that the father of the deceased Muhammad Saleem was informed about his son lying unconscious in his shop by the accused. The statement about this fact is not only by the father of the deceased P.W.4 rather he is supported by P.W.5 Muhammad Ashraf. The factum of the victim lying in an injured an unconscious condition is also proved by P.W.6 and P.WJ. The said P.Ws. Prince Umar and Farooq Ahmed have also deposed about the perturbed state of mind of the accused on the date of occurrence at about 9‑30 a.m. All the three P.Ws. other than the father of the deceased are impartial witnesses having no enmity whatsoever with the accused and their cross‑examination has not led to the inference that they were not truthful. Another important factor was the disappearance of the accused after this incident. He was arrested on 23rd of November as he had left his residence at Lahore alongwith his family members. The examination of the deceased when he was still alive by Dr. Aftab Younas proved that he had as many as six injuries on his person and since the injuries also indicated that he was subjected to unnatural sexual lust, swabs were taken from around the anus and left thigh of the deceased and the same were sent to Chemical Examiner for examination. The doctor was categorical that the injured was subjected to sodomy and no poison was detected in his blood and urine. The testimony of the doctor who conducted post‑mrotem examination (P.W.9) also proved that the victim had six injuries on his body and the seventh was laceration on the anal opening. The cause of death stated by the doctor was manual interference at the neck precipitating irreversible brain damage and the victim had been subjected to unnatural sexual intercourse. The reports of the Chemical Examiner (Exh.P.N. and Exh.P.O.) proved positively that not only semen was detected on the clothings of the deceased but the Shalwar of the accused also was stained with semen. Therefore, two facts have been clearly proved by the prosecution evidence (i) that victim was found unconscious in the shop of the accused at about 9‑30 a.m., and was subjected to physical torture and unnatural sexual lust and secondly the cause of death was manual interference at the neck. Besides, as per testimony of the Doctor Saqib Nadeem, P.W.13, the accused was proved to be sexually potent and able to perform sexual intercourse as the doctor conducted the medical test of the accused which is Exh.P.L.

17. We have on the basis of the prosecution evidence on record come to the conclusion that the factum of deceased being his pupil having been admitted by the appellant‑accused himself and the venue of occurrence also being his shop and the testimony of Experts above discussed, the three Doctors and the Chemical Examiners Reports about the unnatural sexual intercourse having been committed on the person of the deceased and the Shalwar of the accused having also been found stained with semen coupled with the factum of his disappearance after the occurrence, it was he who first satisfied his unnatural lust agianst the deceased and while committing the said act caused injuries to the deceased whereby he became unconscious and which resulted in his death. He was, therefore, rightly convicted and sentenced. We are not pursuaded to take exception to his conviction and sentence. The arguments of the learned counsel for the appellant‑accused have not convinced us of the innocence of the accused appellant. The appeal, therefore, fails and is hereby dismissed. Conviction and sentence maintained. Death confirmed. Murder reference answered accordingly.

N.H.Q./S‑230/L Appeal dismissed.