2006 PLP 1197 (SCMR)

JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN)

Petitioner Nadeem, seeks leave to appeal against the judgment, dated 24-3-2004 of the learned Federal Shariat Court, Islamabad, whereby Jail Criminal Appeal No.205-I of 2002 filed by him was dismissed and his conviction and sentences awarded by trial Court was maintained.

2. Briefly, stated the facts of the case are that on 4-6-2001, complainant Abdul Hameed (P.W.4) appeared before Muhammad Raees S.-I. Incharge, Police Post Bye-pass Police Station, Galla Mandi, and submitted complaint in writing, which was later on reduced into formal F.I.R., wherein he stated that on 2-6-2001 at about 8-00 p.m. Langer of Khattam Sharif was being distributed at the house of his brother-in-law Habib and many children had gathered there. His son Aamer Hamid age seven years, who has already gone there, was enticed away by petitioner and did not return till 10-00 p.m. During search, the complainant met Muhammad Ali (not produced) and Muhammad Yasin (P.W.5), who informed him that they had seen Aamer Hamid proceeding on the bank of 9/L Canal along with the petitioner. After sometime they saw the petitioner coming back alone and on asking he started trembling and could not reply satisfactorily, as such, was pressurized, whereafter, he succeeded in running away. The complainant had firm belief that the petitioner had abducted his son with intention to commit unnatural offence and after the commission of sodomy he might have been done to death. The petitioner was arrested on 4-6-2001, on the day when F.I.R. was registered and immediately after his arrest he disclosed and led to the place of occurrence. He disclosed about the commission of offence and on his pointation a pair of Chappal (Softi) was recovered, which was taken into possession vide recovery memo. Exh.P.E. The dead body of Aamer Hamid was recovered 50/55 feet away from the spot, down stream, which was sent to the hospital and post-mortem exainination was conducted.

3. After usual investigation, the petitioner was sent up for trial before the learned trial Court. The learned trial Court framed the charge against the petitioner, who pleaded innocence and claimed to be tried. ?

4. The prosecution in order to establish its case examined 10 witnesses, namely, Muhammad Saeed Akhtar (P.W.1), Haq Nawaz (P.W.2), M. Tariq (P.W.3), Abdul Hameed (P.W.4), Muhammad Yaseen (P.W.5), Parvaiz Noor (P.W.6), Dr. Munir Ahmed (P.W.7), Manzoor Ahmed A.S.-I. (P.W.8), Muhammad Raees, S.-I. (P.W.9) and Farzand Ali H.C. (P.W.10). ?

5. Petitioner in his statement recorded under section 342, Cr.P.C. denied the case of prosecution and claimed innocence. He neither examined himself on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

6. On conclusion of the trial, he was found guilty and was convicted and sentenced as under:-- (1) Under section 12 of the Offence of Zina (E.O.H.) Ordinance VII of 1979. Death and a fine of Rs.50,000 or in default six months' R.I. the fine if recovered, half of it shall be paid to L.Rs. of deceased as compensation. (2) Under section 302(a), P.P.C. Death. (3) Under section 377, P.P.C. Ten years' R.I. and a fine of Rs.10,000 or in default three months R.I. (4) Under section 201. seven years' R.I. and fine of Rs.20,000 or in default three months R.I. the fine if recovered half of which shall be paid to L.Rs. of deceased as compensation with benefit of section 382-B, Cr.P.C. ?

7. Being aggrieved, the petitioner challenged the judgment in appeal before learned Federal Shariat Court, Islamabad which was dismissed vide impugned judgment.

8. We have heard Mr. Arshad Ali Ch. learned counsel for the petitioner and have gone through the record and the proceedings of the case in minute particulars. ?

9. Dr. Munir Ahmed Qadari, Medical Officer (P.W.7) conducted autopsy of the deceased and observed that it was a dead body of a boy aged about 7 to 8 years/and there were scratches on the neck on front side. Rectum was protruding from the anus. There was an abrasion present at 11 O'clock position on anus and a laceration about 3/4 c.m. x half c.m. on 12 O'clock position at a no Rectal junction. On dissection sub-cutenous haemorrhage were present on front of neck and on both sides of neck. Pieces of small and large intestines were sent to the Chemical Examiner. Ultimately, after seeing the report of Chemical Examiner and report of Bacteriologist he came to the conclusion that the cause of death was throttling. He also sent the two rectal swabs to Chemical Examiner for detection of semen, which were found stained with semen.

10. The prosecution in this case has been able to bring on record the testimony of complainant Abdul Hameed, who supported the case of prosecution as disclosed in the F.I.R. P.Ws. Muhammad Yasin and Parvez Noor unequivocally deposed that they saw minor Aamer Hameed going along with the petitioner at the bank of canal and during the search on the night of incident complainant and the above witnesses saw the petitioner coining back alone and on enquiry he got perturbed and ran away. The most strong factor, which implicate the petitioner with commission of offence is disclosure about the commission of sodomy with the deceased boy and then throttling him to death and thrown his body in the canal, which was recovered immediately after his arrest on 4-6-2000 on his pointation Muhammad Yaseen (P.W.5) and Parvaiz Noor (P.W.6) also corroborated the version that dead body of boy was ' recovered from the canal. This being strong piece of evidence has established the case of the prosecution against the petitioner. Above all the petitioner has not given any satisfactory reply of the questions put to him under section 342, Cr.P.C. so much so he neither examined himself on oath nor produced any witness in defence. Learned counsel though argued at length, yet, could not point out any illegality, misreading, non-reading or misappreciation of evidence from the impugned judgment. There is no substance to interfere in the impugned judgment, which is accordingly maintained. The petition being devoid of force is dismissed and leave to appeal refused. M.B.A./N-8/SC?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.