1990 PLP 224 (SCMR)

Asif Saeed Khan Khosa, Advocate Supreme Court instructed by Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 10th June, 1989. JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Multan Bench, Multan, dated 28th March, 1989 whereby appeal of the petitioner was dismissed. Briefly the facts are that the petitioner alongwith two others namely Zafar and Muhammad Sharif was tried for an offence under section 377/34, P.P.C. and vide judgment dated 30th April, 1978 of the Magistrate Section 30, Multan the petitioner and his two co‑accused were convicted. The petitioner and Zafar co‑accused were sentenced to five years' R.I. plus fine whereas Muhammad Sharif co‑accused were sentenced to two years' R.I. plus fine. On appeal Muhammad Sharif co‑accused was acquitted whereas conviction of the petitioner and Zafar co‑accused was upheld but the sentence of imprisonment awarded to them was reduced from five years' R.I. to four years' R.I. The sentence of the fine was however maintained. Only the petitioner has filed the present petition. The victim in this case is Masood Sultan aged 14/15 years. The occurrence took place on 26th September, 1977 at about 7‑30 p.m. in a field. The F.I.R. was lodged on the following day by the victim himself. The petitioner and his co‑accused were apprehended at the spot by the P.Ws. and produced before the police at the time of the lodging of the F.I.R. According to the medical evidence the unnatural offence had been committed on the victim. The prosecution case is supported by the statement of the victim to the effect that the petitioner as well as Zafar co -accused committed unnatural offence on him. Further the statement of the victim is supported by the medical evidence. It was argued by learned counsel that the prosecution had produced three eye‑witnesses of the occurrence namely Ghulam Hussain, Ibrahim and Muhammad Sharif. Ghulam Hussain and Ibrahim were not produced by the prosecution whereas Muhammad Sharif was declared hostile. It was further submitted that so far as the victim is concerned his testimony has not been relied upon in respect of the part ascribed to Muhammad Sharif co‑accused who was acquitted. It was next submitted that the petitioner had undergone a very protracted trial from 1979 onwards. We have heard learned counsel at some length. The victim had categorically stated that the petitioner committed the act of sodomy on him. This statement is being supported by the medical evidence. There is nothing on the record to show that he had falsely implicated the petitioner. The petitioner from the very beginning did not state that Muhammad Sharif co‑accused had committed sodomy on him and it was for this reason that the said Muhammad Sharif was acquitted. As for the protracted trial he has already been given the benefit of reduction of the sentence. In the light of the above discussion we do not find any substance in this petition which is accordingly dismissed. M.A.K./M‑1031/S Petition dismissed.