1989SCMR 418 (PLP)

NASIM HASAN SHAH, J.‑‑Ayyaz Qayyum, appellant herein, and Mubarak Hussain were tried by the Additional Sessions Judge, Rawalpindi, for the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. They were acquitted of the charge under section 12 of the Ordinance by him but he convicted them of the charge under section 377, P.P.C. and sentenced Ayyaz Qayyum to two years` R.I. and a fine of Rs.2,000 or in default to undergo two months` R.I. but Mubarak Hussain was sentenced to 5 years' R.I. and a fine of Rs.3,000 or in default of payment of fine to further R.I. for three months for having committed sodomy upon Haroon Afzal P.W.4. On appeal before the Federal Shariat Court, the conviction of both the convicts under section 377, P.P.C. was maintained but the sentence of Mubarak` Hussain was also reduced to two years` R.I. and the sentence of fine reduced to Rs.500 or in default of payment of fine a simple imprisonment for one month. The sentence of Ayyaz Qayyum of two years R.I. was maintained (two years' R.I.) but the fine was reduced to Rs.500 or in default to further R.I. for one month. Mubarak Hussain has not challenged the order of the Federal Shariat Court any further and Ayyaz Qayyum alone has preferred an appeal, by leave of this Court. The prosecution case is that Haroon Afzal P.W. who was studying in the same class as Ayyaz Qayyum (Class IX) was asked by the latter (on 22‑12‑1985) during the recess break to accompany him to the house of Mubarak Hussain co accused as he was going there to retrieve his golden ring from him. Haroon Afzal P.W. agreed to accompany Ayyaz Qayyum. They went to the house of Nazar Hussain where Mubarak Hussain accused was already present and both Muhammad Hussain and Ayyaz Qayyum committed sodomy upon him there. Dr. Shamasuddin, Senior Medical Officer, Civil Hospital, Gujar Khan, who examined Haroon Afzal on the same day at about 3.30 P.M., observed as follows:‑ "There was history of unnatural offence about three hours back Parineum was tender and gait was painful. Three rectal swabs, shirt and shalwar were taken and were handed over to the police in separate sealed parcels for transmission to chemical examiner ,for the detection of semen and its group." According to Ayyaz Qayyum appellant he was not guilty and had been involved in the case on account of the machinations of one Shahzad. In this connection, Ayyaz Qayyum's case is that his uncle was murdered and Shahzad was a relative of the accused persons in the said murder case and was on inimical terms with their family; Haroon Afzal P.W., being a friend of Shahzad involved him also at the instance of Shahzad P.W. that, in fact. he was falsely involved in the case. There is no doubt that Shahzad P.W. has played an important part in the case. He is the person who accompanied Haroon Afzal, when the latter returned to school after the incident. Muhammad Wazu P.W.5, a teacher in the school, in his statement clearly stated that when Haroon Afzal P.W r urned to the school he was weeping and was accompanied by Shahzad P.W. On the enquiry of the Headmaster for the reasons of his weeping, Haroon Afzal P.W. stated that Mubarak accused had committed sodomy with him. He further stated that Ayyaz Qayyum (appellant herein) took him to his residence on the pretext of taking a finger ring and that Ayyaz Qayyum and Mubarak Hussain committed sodomy upon hum. During cross‑examination, however, Haroon Afzal P.W. in the first instance named Mubarak Hussain accused alone for the commission of the act of sodomy upon him and it was after a few seconds that he named Ayyaz Qayyum also. We further note that Raja Muhammad Afzal D.DA. gave up Shahzad P.W. as "unnecessary" although he was clearly a necessary witness in the case. We also note that according to the medical examination, the Doctor has merely stated that Haroon Afzal had a history of unnatural offence about three hours back and no injury around the anal area or any tear inside or above his anus was found. If two young men had committed sodomy upon Haroon Afzal P.W. clearly more serious injuries than those actually suffered by him would have resulted. There is some basis for thinking, in all these circumstances, that Mubarak Hussain alone had committed sodomy and Ayyaz Qayyum did not actually participate in this crime. The result is that we would give Ayyaz Qayyum (appellant) the benefit of the doubt and acquit him. The upshot is that the judgments of the trial Court and Federal Shariat Court are hereby set aside and the appellant Ayyaz Qayyum acquitted of the charge under section 377, P.P.C. He is already on bail. The bail bond shall stand discharged. The appeal is allowed. M.I./A‑332/S Appeal allowed.