2006 PLP 476 (SCMR)

JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).

By this single judgment, we propose to dispose of Jail Petition No.18(S) of 2005 filed by petitioner Dilawar Shafique and Criminal Appeal No.40(S) of 2003 filed by appellant Asif.

2. Criminal appeal by leave of this Court filed by appellant Asif and jail petition filed by petitioner Dilawar Shafique are directed against the judgment dated 22-10-2003 passed by learned Federal Shariat Court, Bench at Lahore, whereby Criminal Appeal No.321-L of 2001 filed by petitioner Dilawar Shafique and Criminal Appeal No.15-L of 2001 filed by Muhammad Sarfraz complainant against acquittal of appellant Asif and other co-accused were disposed of in the following manner: Death sentence awarded to petitioner under section 302(b), P.P.C. was converted into imprisonment for life with a tine of Rs.1,00,000 to be paid to the legal heirs of the deceased whereas five years' R.I. with tine of Rs.20,000 or in default to further undergo one year's R.I. under section 377, P.P.C. with benefit of section 382-B, Cr.P.C. Appellant Asif convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with fine of Rs.1,00,000 to be paid to the legal heirs of deceased. Also convicted under section 377, P.P.C. and sentenced to five years' R.I. with fine of Rs.20,000 or in default one year's R.I. with benefit of section 382-B, Cr.P.C. However, acquittal of respondents namely, Manzoor-ul-Hassan Fayyaz Ahmed, Nisar Ahmad and Farrukh Iftikhar was maintained.

3. The case of prosecution in brief is that on 6-7-1998 at evening time complainant Muhammad Sarfraz along with his brother-in-law P.W. Muhammad Ashfaq was present in his house when petitioner Dilawar Shafique and appellant Asif came there and called his nephew Sohail and took him away. Sohail did not return, as such, complainant Muhammad Sarfraz along with P.Ws. Muhammad Ashfaq and Ahmad Ali started his search and when they reached near the Poultry Farm of Ihsan Arian, they heard the noise from the nearby sugarcane field. They went there and on torch-light saw Sohail lying in a water Khal. Petitioner Dilawar Shafique and appellant Asif were present there armed with Chhuris along with acquitted accused, namely, Manzoor-ul-Hassan alias Mithu, Fayyaz and two unknown persons were standing who ran away on seeing them coming. Sohail was found dead and his throat was completely cut with sharp-edged weapon and his Shalwar was removed. It was stated that the deceased was enticed away with the intention of committing unnatural act and was subsequently done to death. The said case was reported at Police Station Dijkot, on 7-3-1998. During investigation, , appellant Asif, petitioner Dilawar Shafique and acquitted accused were arrested and on completion of investigation, they all were sent up to face trial before the Court of learned Additional Sessions Judge, Faisalabad.

4. At the trial, the prosecution examined as many as ten witnesses.

5. On autopsy, P.W.4 Dr. Liaqat Ali Rana, S.M.O. found the following injury on the persons of deceased: "(1) An incised wound 27 c.m. x 4 c.m. into all soft tissues cut upto cervical spine on front both sides of neck mid part." Anal swabs were sent to the Chemical Examiner who reported the same to be stained with semen and on such information, the doctor declared that the sodomy had been committed with the deceased a boy of 12 years. The blood-stained Chhuri was recovered at the pointation of petitioner Dilawar Shafique on 8-8-1998 which was also reported to be stained with human blood by the Chemical Examiner.

6. In their statement recorded under section 342, Cr.P.C. petitioner Dilawar Shafique, appellant Asif and other acquitted accused denied the case of prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence. However, petitioner Dilawar Shafique produced three D.Ws. namely, DATA Muhammad Basit Waked, D.W.2 Imran Iftikhar and D.W.3 Muhammad Akram in his defence.

7. On the conclusion of trial, the trial Court acquitted accused Manzoor-ul-Hassan alias Mithu, Fayyaz Ahmad, Nisar Ahmad, Farrukh Iftikhar and appellant Asif from the charges whereas convicted petitioner Dilawar Shafique under section 302(b), P.P.C. as Tazir and sentenced to death with a fine of Rs.1,00,000 as compensation to the legal heirs of deceased.

8. Complainant Muhammad Sarfraz challenged the acquittal of all the acquitted accused whereas petitioner Dilawar Shafique challenged his conviction before the Federal Shariat Court which was disposed of by impugned judgment as stated above.

9. We have heard Raja Saeed Akram, learned Additional Advocate-General, Punjab on behalf of State and have gone through the record and proceedings of the case in minute particulars as well as the judgment of both Courts below.

10. Raja Saeed Akram, learned Additional Advocate-General, Punjab for the State has fully supported the impugned judgment and contended that the prosecution has brought on record ocular testimony of complainant Muhammad Sarfraz, P.W.6 Muhammad Arshad and P.W.8 Muhammad Ashfaq which is corroborated by medical evidence. Act of the commission of sodomy upon the person of deceased has also been supported by Medical Officer. Irrespective of above a blood-stained Chhuri was recovered from Dilawar Shafique petitioner which were opined by the Chemical Examiner to be stained with human blood. Even swabs taken out from the anus of the deceased was opined to be stained with semen. Accordingly, the learned Courts below have rightly held that deceased boy aged about 12 years was firstly subjected to unnatural lust and then killed with Chhuri so much so that the entire throat was cut. It shows that the deceased was done to death in a brutal manner for which appellant and petitioner could not deserve any leniency. The learned Federal Shariat Court has rightly converted the acquittal of appellant Asif into conviction and for that valid reasons have been advanced. Admittedly, acquittal of appellant Asif was not only perverse, arbitrary, foolish and capricious but also was based on misreading, non-reading and non-appraisal of evidence.

11. Accordingly, we do not find any force in the appeal as well as in the petition, thus, the conviction and sentence awarded by the learned Federal Shariat Court are maintained. Hence appeal filed by Asif appellant being without substance is dismissed. Similarly petition of petitioner Dilawar Shafique is also dismissed and leave of appeal refused. N.H.Q./A-6/SC?????????????????????????????????????????????????????????? Appeal and petition dismissed.