MUJA HID HUSSAIN vs THE STATE

ORDER

' M. S. H. QURAISHI, J.-Mujahid Hussain petitioner and his acquitted co-accused Muhammad Iqbal had been convicted by the Court of Session, Sahiwal on 17-2-1983 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and each sentenced to R. I. For 10 years plus 20 stripes and a fine of Rs, 5,000 or in default in payment thereof to further R. I. For 2 years. The petitioner had been further convicted, by the same Court, under section 373, P. P. C. And sentenced to R. I. For 10 years. However, the two sentences awarded to him were ordered to run concurrently.

On appeal, he and his co-accused were acquitted of the offence under section 12 of the Ordinance but the conviction of the petitioner under section 377, P. P. C. Was maintained though his sentence was reduced to R. I. For 5 years. He has now moved this petition seeking leave to appeal.

2. Muhammad Afzal, the victim and complainant in the case, was doing the job of welding. On 7-9- 1981 at 9/10 p. In. When he had gone to a hotel to take tea, he was asked by Muhammad Iqbal co- accused to accompany him to his house on the pretext that he would arrange for a welding plant for him. On reaching there, Muhammad Iqbal, however forced him to sit on a cot and do masturbation. In the meantime, the petitioner came there and forcibly took him to his house, where he committed unnatural act on him. On being released by the petitioner, Muhammad Afzal went to the nearby house of his uncle, where he spent the night and in the morning went to his own house.

His father, who had been away, returned on 9-9-1981. Muhammad Afzal narrated the story to him and, thereupon, accompanied by him went to P. S. 'A' Division, Sahiwal where he lodged report at 12-30 p. m. On 10-9-1981. The medical examination showed the presence of a lacerated wound, x c. m. x skin deep inside the anus and a scabbed abrasion 1 x c. m. On inner side of right knee. The rectum swa bs taken were sent to the Chemical Examiner but the report was in the negative. 'The petitioner who was also subjected to medical examination was found to be fit to perform sexual act. He denied the allegation and pleaded that he had been falsely implicated because he had apprehended Muhammad Afzal complainant alongwith a tape-recorder which the latter had stolen from co-accused Muhammad Iqbal. In his defence he produced Qazi Ahmad Yar D. W. Who supported him in regard to the theft of the tape-recorder of Muhammad Iqbal for which the complainant was suspected and was summoned before a Pa nchayat where he confessed his guilt and promised to return the tape-recorder. The trial Court found the petitioner and his co- accused guilty of having kidnapped and abducted the complainant in order that he be subjected or be so disposed of as to be put in danger of being subjected to unnatural lust of Mujahid Hussain petitioner and the latter also guilty of having committed sexual intercourse against the order of nature. The appellate Court, however, in view of discrepant statements made by the complainant in regard to the kidnapping found both the accused not guilty of an offence under section 12 of the Ordinance. In regard to the petitioner, the appellate Court found that the evidence of the complainant, which was supported by the medical evidence was believable and rejecting the plea taken by the petitioner maintained his conviction under section 377, P. P. C. Though in the circumstances of the case it reduced his sentence, as aforesaid.

3. No question of law was raised before us but it was urged that in view of the negative report on the presence of semen in the rectal swabs and the shalwar of the victim not having been produced, the prosecution story could not be said to be free from doubt. After examining the record, we, however, feel satisfied that the concurrent finding reached by the Courts below is supported by the evidence of the victim as corroborated by the medical evidence. No case, is, therefore, made out for interference. Leave to appeal is refused.