1996 PLP 774 (MLD)

(2) Laceration of 0.5 x 0.3 into 0.3 c.m. present on 12 O'clock position. (3) A laceration of 0.7 x 0.3 c.m. present on 6 O'clock position. (4) Sphinctor tone was normal. According to the doctor, the act of sodomy had been performed. Anal Swabs were sent to Chemical Examiner for detection of semen and blood. The Chemical Examiner reported that the swabs were stained with semen but not with blood. The doctor also medically examined Muhammad Ashfaque appellant (18/20 years) and found him physically fit to perform sexual act.

4. Shafaqat Ali, A.S.I. P.W.6 investigated the case, arrested the appellant on 5‑3‑1991 and got him medically examined.

5. The prosecution case rests on the evidence of Muhammad Anwar P.W.1 (father of the victim), Jamshaid Anwar P.W.2 (victim), Muhammad Aslam P.W.3 (the eye‑witness) and Dr. Saqib Naeem P.W.7.

6. The appellant denied the prosecution allegations and stated to have been falsely involved. He stated that he and other boys of the Mohallah had been objecting to the visit of certain suspected persons to the house of Muhammad Anwar P.W. as a result of which he was annoyed with him. He further stated that Muhammad Anwar wanted his father to sell his house to a man of his choice which was not acceptable to his father. He denied his presence at the spot at the relevant time. He examined Ghulam Nabi D.W.1 and Babar Mirza D.W.2 in his defence. Ghulam Nabi D.W.1 stated that his house was close to the house of Muhammad Anwar and that he did not hear any cries or noise on the material day. According to him, the real dispute between the parties was over the sale of house by the appellant's father. Babar Mirza D.W.2 also made a similar statement. According to him, the appellant was associated by him in the construction of his house at the relevant time and that he was innocent.

7. Relying on the evidence of Muhammad Anwar P.W.1 and his son Jamshaid Anwar P.W.2 the learned trial Court convicted and sentenced the appellant as described above. Muhammad Aslam P.W.3 was not relied upon being a chance and interested witness.

8. It is contended that the prosecution case is full of contradictions and the appellant had been involved on account of enmity.

9. Since the occurrence in question had taken place on the roof of house of Muhammad Anwar P. W.1, he was a natural witness and his presence could not be disputed or doubted. Being a day‑time occurrence and the appellant known to him, he could not have erred in identifying him. Jamshaid Anwar P.W.2 (victim) has also deposed against the appellant. Since he was a minor, the learned trial Court had put certain questions to him to satisfy itself that he was a competent witness. He has fully implicated the appellant in the offence. The medical evidence also corroborates him. The doctor found the anal area of the victim swollen and contused. Laceration was also found around it. The anal swabs were also found to be stained with semen. The defence plea and evidence in this behalf is not convincing. Being a case of single accused, there was no, cause of mistaken identity or substitution.

10. For the forgoing reasons, the prosecution case stands fully established against the appellant. He was, therefore, rightly convicted. As regards sentence, I consider the appellant entitled to leniency being a youth. Accordingly, his period of imprisonment is reduced to three years R.1 with benefit of section 382‑B, Cr.P.C. The sentence of fine is maintained. In case of its realization, it shall be paid to Jamshaid Anwar P.W.2 as compensation. With the above modification, the appeal is otherwise dismissed. H.B.T./M-2087/L Appeal dismissed.