SHER MUHAMMAD Versus STATE

Appellant, namely, Sher Muhammad, stands charged for having committed sodomy with Gulistan a minor boy of about 13 years, at dagger point, an offence punishable under section 377/506, P.P.C. In this respect F.I.R. No.161 was duly registered at Police Station, Saddar, Kohat on 19-3-1995.

2. There is hardly any need to give the facts of the case in hand, in detail, because the same have been quite elaborately recorded by the Additional Sessions Judge, Kohat (Mr. Shakeel Azam Awan) in his judgment; dated 9-9-1997 and impugned before this Court.

3. The Additional Sessions Judge, Kohat after framing the charge against the appellant, recorded the statements of the prosecution witnesses on oath. The following were examined as P.Ws.:--

P.W.1 Bashir Hussain, L.H.C. No.852, P.W.2 Javed, L.H.C. No. 1407, P.W.3 Khurshid Khan, S.H.O. Saddar, P.W.4 Qaisar Khan, A.S.-I. P.W.5 Gulishtan/complainant, P.W.6 Dr. Rafiur Rehman.

4. When examined under section 342, Cr.P.C. the appellant/accused refuted all the allegations contained in the prosecution evidence and claimed innocence and false implication. He alleged that this father was on inimical terms with one Malik Abdullah Noor and that it was he who managed to involve/implicate him (appellant) in this case falsely so as to avenge himself. The appellant, however, did not produce any evidence in his defence. He also refused to appear as his own witness and give statement on oath under section 340(2), Cr.P.C.

5. Mr. Tehmash Khan, Advocate learned counsel for the appellant and Kh. Azhar Rashid, Assistant Advocate-General for the State present and heard. I have also gone through the record of the case carefully.

6. Admittedly, there is nothing on the file to suggest, even remotely, that there is/was any enmity or ill-will between the complainant (a minor boy of l2/13 years) and that the appellant who happens to be a young man of 24 years of age. In the circumstances, no reason exists and none indeed has been pointed out by the learned counsel for the appellant that the complainant has either charged the appellant falsely or to have substitute him for the real culprit, if any. Similarly, the occurrence took place in broad day i.e. at 15-00 hours, therefore, the question of mistaken identity also does not arise. Then the matter was, reported promptly to the Police with the result the appellant was chased and apprehended soon after the occurrence i.e., within a short span of time.

7. During the course of Police investigation, the site plan was drawn up by the Investigating Officer at the pointation of the complainant which supports the ocular version of the P.Ws. Similarly, the Shalwar of the accused alongwith swabs taken from the anus of the complainant were sent to the laboratory for chemical analysis.

8. It would not look nice to give the details of the examination result given by Dr. Raflur Rehman (P.W.6) here. However, it would be sufficient to observe that according to him (P.W.6) sodomy was factually committed with the complainant by the appellant.

9. The Additional Sessions Judge, Kohat after having discussed the evidence produced before him at the trial, in detail, has given valid reasons for his conclusions and has recorded a speaking order. His judgment is neither arbitrary nor perverse and since no illegality or material irregularity, has been committed by him, therefore, I see no justification to interfere with the same.

10. This appeal is without any substance and is accordingly rejected.

N.H.Q./136/P Appeal dismissed.