1985 PLP 1440 (SCMR)

Nemo for the State. Date of hearing: 11th May, 1985. NASIM HASAN SHAH, J.‑‑This petition is directed against the judgment of the Federal Shariat Court, dated 3‑2‑1985 whereby the appeal filed by the petitioners against the Judgment of the learned Additional Sessions Judge, Rawalpindi, dated 25‑10‑1984 convicting them under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979) and sentencing them to undergo R.I. for 15 years each and a fine of Rs.10,000 each and also convicting them under section 377, P.P.C. and sentencing them to ten years' R.I. and a fine of Rs.10,000 was dismissed. The case of the prosecution against them was that at about Degherwela on 27‑3‑1983, Shahbaz Safdar (P.W.2), a young boy of five years, was playing in the street outside his village when he was induced by the petitioners Abdul Wadood (aged 18 years) and Ghazanfar Ali (aged 21 years) to go alongwith them into the field where they would give him some berries. There they instead committed sodomy upon him, one after the other. The report in‑ this connection was lodged at Police Station Gujar Khan on 29‑3‑1983 and a case against the petitioners was registered. They were tried, convicted and sentenced as mentioned above and their appeal also failed. Hence this petition for leave to appeal in this Court. The learned counsel for the petitioners has submitted that the young child did not really know the names of the persons who had committed the sodomy upon him. It was for this reason that the F.I.R. was delayed by nearly 48 hours. Another circumstance relied upon is that although in the F.I.R. the names of the culprits are duly mentioned as Abdul Wadood and Ghazanfar Ali but in the Court the child described them as Dhoodd and Bhundi. It was also submitted that in any case the charge of abduction was not at all established against the petitioners and their conviction under section 12 of Ordinance VII of 1979 was untenable. We have heard learned counsel and also perused the record with his assistance. The F.I.R. was, indeed, lodged with considerable delay which lends some support to the contention that some doubt regarding the identity of the actual perpetrators of the heinous deed may have existed. There is furthermore no clear evidence with regard to the exact place where the child was playing nor the exact place he was induced to go by the petitioners, by the lure of the berries, where the act of sodomy was committed upon him. The contention that the conviction of the petitioners, at least so far as the charge of abduction was concerned, was not founded on any legal and proper evidence, prima facie, has force. We would, therefore, grant leave to appeal to re‑appraise the evidence to determine the offence, if any, which stands established, in law, against the petitioners. M. I.??????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.