1982 PLP 1114 (SCMR)

SHAH NAWAZ KHAN, J ‑This petition has been submitted for leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 12‑1‑1981 in Criminal Revision No. 30 of 1981.

2. Mutahir Shah, Zainul Abadin, Muhammad Kamal and Jan Muhammad, residents of village Dargai. Tehsil Charsadda, were tried in the Court of Sub‑Divisional Magistrate, Charsadda, on the charge of commit ting unnatural offence of sodomy on complainant Hussain Ahmad. All of them were found guilty of offence, under section 377, P. P..C., and the Sub‑Divisional Magistrate, Charsadda, exercising enhanced power under section 30, Cr. P. C. convicted them and sentenced each one of them to suffer rigorous imprisonment for a period of two years and each one of them also to pay a fine of Rs. 500 or in default to suffer further rigorous imprison ment for six months. Half of the amount of fine on realisation was to be paid to Hussain Ahmad complainant as compensation.

3. The appeal of the convicts before the Additional Sessions Judge, Charsadda, also failed and the learned Sessions Judge while confirming the conviction and sentence of the convicts dismissed their appeal, by order dated 15‑2‑1981. That judgment of the Additional Sessions Judge was later challenged before the Peshawar High Court through Criminal Revision No. 30 of 1981, but it was also dismissed by order dated 12‑6‑1981 and the learned Judge of the High Court observed that the concurrent finding of the two Courts below is based on the proper consideration of the evidence on the record which is unbiased and the complainant's testimony supported by other evidence is sufficient for the conviction of accused‑petitioners.

4. The above‑mentioned four convicts have now come to this Court through the present criminal petition wherein they have challenged the concurrent findings of the three Courts below on the ground that the main witness of the occurrence, namely. Hussain Ahmad is an interested person, but he was unable to state before us as to why he preferred to charge the four convicts falsely for such a dirty offence. The learned counsel for that petitioner further stressed that the medical evidence does not support the prosecution version but he was confronted with the statement of Dr. Muhammad Sadiq (P. W. 4) who had examined Hussain Ahmad and had on initial examination found the following on the person of the victim "Funnel shaped annal was seen with slight redness on the area resembl ing 3 `O clock on annal hair and two swabs were taken. The hairs surrounding the annal was stained with faeces while shalwar was stained with faeces and what look like staining with urine or semen." The learned counsel stated that it does not show that sodomy was committed on Hussain Ahmad, but the evidence on record further shows that Doctor Muhammad Siddiq (P. W. 4) had referred Hussain Ahmad to Civil Hospital, Peshawar, wherefrom a definite opinion was sought and the medical opinion was that intercourse with the complainant had been done as shown by the laceration in the annal area. That Doctor had also examined the three accused, namely, Mutahir Shah, Zainul Abadin and Jan Muhammad, and had found that they were capable of performing sexual intercourse with another person. Doctor Zaffar Ali Khan (P. W. 3) had examined Muhammad Kamal accused petitioner and had found him fit for performing sexual inter course. Both these Doctors proved their respective reports Exh. P. Y. and P. Z.

5. Hussain Ahmad complainant charged all the four accused‑petitioners for committing sodomy on him. Whether the offence was committed with the consent of Hussain Ahmad or with his acquiescence or not is not material but the fact that the accused petitioners have been awarded very short sentences would rather show that the trial Court was mindful of lack of resistance put by the victim when sodomy was being committed on him. Muntaj Gul (P. W. 2) who is an independent witness has fully supported Hussain Ahmad that the victim was present when the kites were being flown and in the meantime all the four accused came to the spot, they took away Hussain Ahmad on some pretext and went towards the railway line. He was cross‑examined at length but nothing useful to the accused came out from his mouth.

6. It will be appreciated that all the Courts below have come to a concurrent finding of fact that the sodomy was committed on the complainant Hussain Ahmad by the four accused‑petitioners. Nothing could be ‑pointed out by the learned counsel for the petitioner whether the judgments of the trial Court, or the first appellate Court or the revisional Court suffer from any adversity or they have done anything, which is contrary to law resulting in miscarriage of justice. The punishment awarded to the petitioners is already fairly low and no interference is required from this Court. It is not a fit case in which leave may be granted. It is, therefore, dismissed. Petition dismissed.