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Criminal Petition for Leave to Appeal (S) No. 29‑R of 1985, decided on 12th May, 1985.

(From the judgment of the Federal Shariat Court, Islamabad, dated 31‑1‑1985 in Criminal Appeal No. 152/1/1984).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑‑Conviction for abduction and unnatural offence based on straightforward depositions of victim and his brother as also on medical evidence‑‑No principle of appreciation of evidence violated‑ Defence plea of alibi being too flimsy, rejected‑‑No justification for interference with legal sentence either‑‑Leave to appeal refused.

Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 12th May, 1985.

Leave to appeal has been sought from judgment dated 31st January, 1985 of the Federal Shariat Court; whereby the conviction of the petitioner under sections 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979 and 377, Pakistan Penal Code and sentence of 10 years' R.I. under each count (to run concurrently) and Rs.5,000 fine each as also 10 stripes under the former provision, were upheld.

The prosecution case as contained in the testimony of Mazhar Yasin (P. W. 5) a boy aged 10 years and a student of a Preparatory School is as follows:

"The occurrence in this case took place on 4‑2‑1984 at about 3‑30 p.m. I was present with my mother on the second storey of my house. At the time stated above some one rang the bell of our house. When I came down, I saw that accused Shafique present in the Court was there. He called me out and asked to play with the other children. He took me forcibly in a house under construction. When 1 saw that no other was present in the house under construction, I tried to slip away from there. He took me in a room where he forcibly removed my Shelwar and committed sodomy with me. He put his hand on my mouth and made me mum. However, I was weeping due to pain. After a while my brother Azhar Yasin, neighbourers, Anis Ahmad and Ateeq Ahmad and my mother Mst. Nasreen Akhtar came at the spot. Accused Muhammad Shafique fled away from the spot. Accused Muhammad Shafique was wearing white shirt and white Shalwar at the time of occurrence. My brother Azhar Yasin and other witnesses stated above tried to apprehend accused Shafique. But accused Shafique fled away from the spot. My brother, the neighbourers and my mother brought me in the house. My mother called my father on telephone. After a while my father came to my house. I, my brother, my mother, and the neighbourers stated above narrated the whole story to my father. My father went to police post for registration of the case. After the registration of the case I was got medically examined by the police. After removing my Shalwer, the medical officer handed over the same to the Police. After medical examination, I came back to my house. My statement before police was recorded."

The deposition of the victim of the offence was supported by his brother Azhar Yasin. No other eye‑witnesses of occurrence examined. The prosecution case is supported by positive medical evidence. The trial Court as also the appellate Court believed the aforementioned two witnesses and finding no reason for false implication found the petitioner guilty and sentenced him as noticed above.

Learned counsel for the petitioner has contended that the alibi evidence which was supported by register of attendance of the petitioner as a labourer with a contractor should have been believed. He also contended that the entire case has been concocted on account of a previous estrangement; and lastly, that the offence under section 12 of the Ordinance has not been made out, because a possibility could not be excluded that the petitioner might have taken away the accused for playing together and in that connection during the time when all the children were playing together the occurrence took place. In that eventuality the assumption regarding the taking away with the purpose of committing sodomy would stand negated. The depositions of the victim and his brother are straightforward and convincing enough to inspire confidence. No principle of appreciation of evidence has been violated / by the learned Courts below in placing reliance on them. The evidence of alibi to say the least is too flimsy to be relied upon and have rightly been rejected.

The question whether offence under section 12 has been made out. No doubt it engaged our attention. However, on proper analysis of the evidence it appears that the petitioner took away the Victim from his house for no other purpose except in order to commit sodomy which he did actually commit when reaching the place of offence. There is no evidence that during the period in question on the day of occurrence there were other boys with whom the petitioner and/or the victim might have engaged themselves in some game. Nor is there any evidence that before the actual act of sodomy and after the taking away of the victim the petitioner had engaged himself in some innocent game with the victim. On the contrary, the trend of statement made by the victim shows that the purpose and intention of the petitioner from the very beginning when he took the victim from his house, was to commit sodomy with him.

Learned counsel also in the alternative sought reduction of sentence on the ground that the petitioner is a boy of 16 years.

Undoubtedly, the sentence of 10 years with 10 stripes seems to be a bit on the higher side, but it cannot be said that the same could not at all be awarded in a case like the present one particularly when the sentence of fine is not very heavy. That being so, we do not find any justification for interference with the legal sentence either. This petition fails and leave to appeal is refused.

M. I. Leave refused

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