ALLAHYAR vs THE STATE
This petition calls in question the legality of the judgment of the Federal Shariat Court, whereby the conviction of the petitioner under section 377 of the Pakistan Penal Code 1860 was maintained while the sentence was reduced from ten years to seven years. The core legal questions involve the appreciation of evidence regarding the commission of an unnatural offence, the competency of the forum of appeal, and the plea of previous enmity. The Supreme Court held that the prosecution successfully established its case beyond a shadow of doubt through the corroborated testimony of the victim, medical evidence, and the Chemical Examiner's report, while the defence failed to substantiate any motive for false substitution. The petition for leave to appeal was accordingly dismissed. The key principle laid down is that concurrent findings of fact by the trial court and the appellate court, based on reliable and corroborated medical and ocular evidence, warrant no interference by the Supreme Court.
- Whether concurrent findings of fact by the trial court and the Federal Shariat Court can be interfered with when supported by corroborative medical and ocular evidence?
- Does a statement under section 342 of the Code of Criminal Procedure 1898 override contradictions in the defence witness testimony regarding motive?
- Can a plea of previous enmity sustain without being suggested to prosecution witnesses during cross-examination?
- Section 377, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
- Section 340, Code of Criminal Procedure 1898
ORDER
1. ' This petition calls in question the legality of the impugned judgment of the learned Federal Shariat Court; whereby, the conviction of the petitioner under section 377, P.P.C. Was maintained but the sentence was reduced from ten years to seven years.
2. ' The learned counsel referred to page 37 of the paper book and argued that the learned trial Judge has observed "but the incident was unwitnessed, therefore, accused is convicted and sentenced as Tazir under section 377, ,P.P.C." and on that basis submitted that the trial Court has in fact held the petitioner not guilty. This argument is misconceived and it appears that the learned counsel is oblivious of the fact that the learned trial Judge in the earlier part of his judgment has observed:-- ' "It is established beyond any shadow of doubt that victim Khalid Shah was subjected to unnatural offence at the relevant time. The testimony of the victim Khalid Shah has been corroborated by the other P.Ws. And the medical evidence complied with the report of chemical examiner, is sufficient to believe the commission of alleged offence against accused Allah Yar. In view of the above I am satisfied that accused has committed the alleged offence, therefore, Point No,1 is decided in affirmative."
3. ' The learned counsel next submitted that the appeal was competent before the High Court which was wrongly preferred before the Federal Shariat Court. The learned counsel when repeatedly asked as to what he is trying at in arguing this point could not answer satisfactorily. In any case this point has not been agitated before the Federal Shariat Court as it does not find any mention in the impugned judgment. The learned counsel then referred to the defence witness to submit that the petitioner has been charged on account of previous enmity. The statement of the petitioner under section 342, Cr.P.C. Is silent about any enmity between the petitioner and the complainant party.
4. However, in his statement under section 340, Cr.P.C. The petitioner has stated that the dispute between him and the complainant was over the quarrel of children which had happened some time back. However, it is amazing to note that the defence witness has not referred to that motive but rather introduced a new motive of dispute between the parties over certain plot. We feel that the prosecution has been able to prove its case from the testimony of the victim of the offence coupled with the evidence of father and brother supported by medical evidence and the Chemical Examiner Report. The petitioner could not even remotely suggest to any of the witnesses the reasons which prevailed in substituting him for the real culprit. We agree with the concurrent assessm ent of evidence by the trial Court and affirmed by the Federal Shariat Court and, accordingly, while refusing leave to appeal dismiss this petition.