1996 PLP R1910 (SCMR)

MUHAMMAD MUNIR KHAN, J.

This appeal by leave of the Court arises from the facts that Mehboob Iqbal and Mumtaz Khan appellants were tried by the Sessions Judge, Attock, for the abduction of and sodomy with Muhammad Azam aged 16 years on 24-4-1988 at 1-30 p.m. in the area of Basal, Police Station Pindsultani, District Attock, who, vide judgment dated 21-3-1994 while acquitting them of the charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 convicted them under section 377, P.P.C. and sentenced them to three years' R.I. each, and fine of Rs.4,000 each or four months' R.I. each in case of default. They were directed to ay Rs.4,000 each to Muhammad Azam P.W. as compensation or in default thereof to suffer R.I. for four months. The appeal filed by them against their conviction and sentence was dismissed by the Federal Shariat Court on 8-6-1994. Feeling aggrieved, they filed Petition for Leave to Appeal which was granted on 16-4-1995.

2. Muhammad Azam P.W.5, in his statement before the Court stated that at the eventful time, he was present near the Railway crossing when Mehboob Iqbal and Mumtaz Khan accused caught hold of him, dragged him up to a distance of 15 paces towards the west of the metalled road and committed sodomy with him one after the other. The alarm raised by him attracted Jehandad and Khan Mulukh P.Ws. to the spot. After the occurrence, he went to his house. As his father had gone to Pindigheb, so he was not available in the house. His father returned on 26-4-1988 and he (P.W.5) narrated the occurrence to him. They then went to the Police Station and lodged the report on the same day.

3. Muhammad Azam was medically examined by Dr. Muhammad Ejaz P.W.3 who found marks of violence on his person. In his opinion, the sodomy was committed with him. Jehandad, Khan Mulukh and Tariq Mahmood are the eye-witnesses of the occurrence. They were given up by the prosecution. The trial Court examined Jehandad, Khan Mulukh and Trariq Mahmood as C.W.1, C.W.2 and C.W.5 respectively. They did not support the prosecution case. Believing Muhammad Azam P.W.5, corroborated by the medical evidence, the trial Court convicted the appellants as stated above.

4. After hearing the learned counsel for the parties we feel inclined to accept the appeal for the reasons that there was a delay of about two days in lodging the F.I.R. Muhammad Azam had narrated the occurrence to his father Muhammad Aslam (P.W.6) on his return to the house. Muhammad Aslam, the father of, the victim has appeared as P.W.6 but he has not deposed about the narration of the occurrence by his son to him. According to the prosecution case Jehandad and Khan Mulukh had seen the occurrence. They have been examined as Court witnesses. They have not supported the prosecution case. Tariq Mahmood C.W.5 is the first cousin of Muhammad Azam. He has also not supported him. The statement made by Muhammad Azam suffers from material discrepancies. There is also delay in his medical examination. Muhammad Azam P.W.5 does not appear to be an absolutely dependable witness. For all these reasons, we are of the - view that the prosecution has failed to prove its case beyond reasonable doubt. -

5. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellants, the appeal is accepted, the p impugned judgment is set aside and the appellants are acquitted of the charge. They shall be released forthwith if not required in any other case. N.H.Q./M-369/S Appeal accepted.