1994 P Cr (PLP)

Date of hearing: 27th April, 1993. This appeal is directed against the judgment dated 11-10-1992, passed by learned 1st Additional Sessions Judge, Karachi (East), whereby he convicted appellant Saeed Ali under section 377, P.P.C. and sentenced him to suffer R.I. for three years and to pay fine of Rs.2,000 or in default thereof to suffer R.I. for further period of six months. The facts relevant for decision of this appeal are as follows:-- The case of prosecution, in brief, is that on 25-6-1987 at about 3-35 p.m. complainant Mst. Maryam lodged F.I.R. at Police Station Korangi, which was registered under section 377, P.P.C. and section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein she stated that minor Shafq Alam aged about 8 years, is her son and he is getting education in the Madrassah of Noorani Mosque. He used to go to the mosque in the morning and normally returned back before noon. On the date of occurrence, he did not turn up till 1-00 p.m. She searched him and did not find him anywhere. Said nor, however, reached the house after some time and told her that when he W returning to house, the appellant, and co-accused Shahbaz alias Papa had met him on the way, took him on a pretext to a nearby graveyard in Korangi No.l and committed carnal intercourse with him. The complainant saw that blood was oozing from anus of said minor and he was feeling pain. She then lodged F.I.R. at said police station. The investigation of this case was conducted by Mr. Syed Saleem Hussain Shah, A.S.I. During the investigation, on the basis of doctor's report, co-accused Shahbaz was found incapable of performing sexual intercourse, as such, he was released under section 179, Cr.P.C. On completion of investigation, the charge-sheet was submitted against the appellant. Charge under section 377, P.P.C. was framed against the appellant. It was read over and explained to him and he did not plead guilty. During trial, the prosecution examined complainant Mst. Maryam Exh.3, Abdul Hussain Exh.4, minor Shafiq Alam Exh.6, Rana Muhammad Ramzan Exh.7, Abdul Waheed, Process Server Exh.9, Syed Saleem Hussain Shah, 1.0. Exh.15, Dr. Shaukat Hussain Exh.21 and Dr. Aftab Aziz Exh.23. The prosecution closed its side vide statement Exh.24. The appellant in his statement recorded under section 342, Cr.P.C. has denied the prosecution allegations and claimed to be innocent. He examined himself on oath and also examined Muhammad Naeem and Zahooruddin as his defence witnesses. On assessment of the evidence brought on record, learned trial Judge convicted the appellant as mentioned earlier. From the testimony of complainant Mst. Maryam, victim (minor Shafiq Alam) and Dr. Shaukat Hussain, it is established that said minor was A subjected to sodomy by the appellant. In cross-examination of complainant Mst. Maryam, it was suggested to her that it was actually co-accused Shahbaz, who had committed said offence. The report of Doctor on this point is clear. According to this report, Shahbaz, who at the relevant time was also a boy of tender age, was incapable of committing sexual intercourse. Similar suggestion was given to P.W. Abdul Hussain, who is the father of victim, and he too denied that his son had informed him that it was only Shahbaz who committed said offence. Confronted with such irrefutable evidence, Mr. A.R. Baloch learned counsel for the appellant did not challenge the finding of the trial Court on merits and confined his submissions to the quantum of sentence. He submitted that appellant, at the relevant time, was a teen-alter and already ha s suffered a lot by remaining in custody for about two and a half years as under trial prisoner and the convict. He, therefore, argued for reduction in sentence. Mr. Hayat Qureshi learned counsel for the State has no objection, if the sentence is reduced. Accordingly, the sentence of the appellant is reduced to the period already undergone as under-trial prisoner and convict. The sentence of fine of Rs.2,000 or in default thereof to suffer R.I. for six months is, however, maintained. In case the fine is paid, he may be released forthwith if not required in any other case. With this modification in sentence the appeal is dismissed. Suo motu notice for the enhancement of sentence issued against the appellant is withdrawn and vacated. N.H.Q./S-1074/K Sentence reduced.