1969 P Cr (PLP)

Abdul Aziz Khan, Advocate‑General of the Punjab for North- West Frontier Province (Ghulam Abbas Jaffery, Advocate Federal Court with him) instructed by M. Siddiq, Attorney for Respondent. Dates of hearing : 14th and 15th May 1953. AKRAM, J.‑This Criminal Appeal (No. 18 of 1953), by Muhammad Ishaq and Abdullah Jan is with our leave from a conviction under section 377 of the P. P. C. Briefly stated, the case for the prosecution was that the com plainant, Irshad Hussain, P. W. 1, who was in search of employ ment was persuaded by accused Muhammad Ayaz to go to accused Muhammad Baran and seek his help in the matter; that Irshad Hussain accordingly went to the house of Muhammad Baran on the 6th of August 1950, accompanied by a friend Jamil-ur‑Rahman P. W. 2, that while in the house Jamil-ur‑Rahman was pushed out; and Irshad Hussain was then gagged and carried bodily into a room where the appellants Muhammad Ishaq and Abdullah Jan and the co‑accused Muhammad Ayaz committed the offence charged; that Jamil‑ur‑Rehman, in the meanwhile went to a police out‑post, about three furlong away, and returned to the scene of occurrence with the Head Constable Mauladad, P. W. 3 and Foot Constable Abdullah Jan, P. W. 4; that on arrival they knocked at the door for sometime when Irshad Hussain opened it and they discovered that only accused Muhammad Baran was there, but the two appellants and the co‑accused Muhammad Ayaz had made good their escape: that Irshad Hussain, Jamil‑ur- Rahman and Mauladad Head Constable thereafter went to the Police Station where a F. I. R. was recorded at the dictation of Mauladad P. W. 3: that a police investigation then took place and thereafter the appellants and the co‑accused Muhammad Ayaz and Muhammad Baran were sent up for trial before the Additional District Magistrate, Tank. The defence was that the accused were falsely implicated on account of enmity with the Head Constable Mauladad and some others. The learned Magistrate convicted the appellants and then two co‑accused Muhammad Ayaz and Muhammad Baran, and sentenced them to rigorous imprisonment for four years each. Upon appeal, the appellants and Muhammad Baran were acquitted by the Sessions Judge, but the conviction of Muhammad Ayaz was maintained, though his sentence was reduced to rigorous imprisonment for two years. From this judgment the Provincial Government preferred an appeal against acquit tal and an application in revision for the enhancement of the sen tence of Muhammad Ayaz. All these matters came up for hearing before the Court of the Judicial Commissioner, N.‑W. F. P., and were disposed of by a single judgment, whereby the order of acquittal was set aside and the appellants were sentenced to rigorous imprisonment for four years and Muhammad Baran to rigorous imprisonment for two years, while the sentence of Muhammad Ayaz was enhanced to rigorous imprisonment for four years. The present appeal (No. 18 of 1953) is by Muhammad Ishaq and Abdullah Jan; there is also a Jail Petition for leave to appeal preferred by Muhammad Ayaz (Jail Petition No. 164 of 1952) which is pending for disposal along with the appeal (No. 18 of 1953). The main question which arises in the appeal is whether the evidence is such as can sustain the conviction of the appellants on the charge laid against them. Counsel for the appellants contended that the prosecution evidence in the case was far from satisfactory; that the main witnesses. P. Ws. 1 to 3 were unreliable and were found to be so by the Sessions Judge as regards the allegation made against the appellants; that so far as the appellant Muhammad Ishaq was concerned, the Court below was in error in its view that the cycle found in the place of occurrence belonged to Muhammad Ishaq's father and provided some sort of a link connecting Muhammad Ishaq with the offence; that in this connection the Court below had omitted to notice that there was no legal proof of the fact that the cycle belonged to Muhammad Ishaq's father; that so far as Abdullah Jan was concerned, his plea of alibi had not been adverted to inasmuch as the evidence of D. W. 21, Haji Muhammad Rahim, was over‑looked and instead reference was wrongly made to the evidence of D. W. 12, Sadulla Khan. Counsel for the Crown, on the other hand, contended that even if the evidence of P. W. 3 Head Constable Mauladad was regarded as unsatisfactory there was no reason to cast any doubt on the evidence of P. W. 2 Jamil‑ur‑Rahman; that it was not denied that an occurrence had taken place and the only question was as to the complicity of the appellant; that it was thus a question of fact and related solely to the reliability of the witnesses and the weight and value of their evidence which it was not for this Court to enter into; that even excluding the evidence objected to and giving concession for the error with reference to the evidence of D. W. 21, there was ample material on the record to sustain the conviction. The learned Judges of the Court of the Judicial Commissioner after a careful examination of the evidence had observed :as follows :‑ "The statements of the complainant and Jamil‑ur‑Rahman thus conclusively and beyond a reasonable doubt prove the guilty of the four acecused. Their evidence is then very strongly corroborated by the facts mentioned above. As against Muhammad Ishaq accused, it is in addition corroborated by the finding of a cycle from the crime house . . . The cumulative effect of the evidence discussed above is that the charge of committing carnal intercourse against the order of nature with the complainant has been proved against Muhammad Ishaq, Muhammad Ayaz and Abdullah Jan accused." We have been taken through the material portions of the evidence on either side, and on the whole, we are inclined to agree with the contention put forward by counsel for the Crown that direct and circumstantial evidence in the case, even after giving effect to the objections raised by counsel for the appellants, clearly establish the guilt of the appellants. We accordingly dismiss the appeal. As to the petition of Muhammad Ayaz (Jail Petition No. 164 of 1952) for leave to appeal, it is to be observed that in the petition also questions relating to appreciation of evidence only have been raised. No such point as can attract our special jurisdiction seems to be involved in the case. The petition also is accordingly dismissed. Appeal dismissed.