PLJ 2024 Cr.C. (Note) 55
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
GHULAM MUSTAFA etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 1111 & 1133 of 2022, heard on 21.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 377/377-B/364-A/34--Sodomy--Child witness--Juvenile--Reduction in sentence--Victim (PW-2) being a child witness, the trial court had duly tested his competency to give evidence--The child witness has forcefully explained each and every aspect of the incident and despite asking lot of questions from his during cross-examination his credibility could not be shattered by the defence--Appellants were also medically examined and were found capable to perform sexual act--Allegations leveled by PW-1 & victim/ PW-2 are fully established against the appellants--Prosecution was quite successful in proving the allegation of sodomy committed by the appellants--Qua attraction of Section 364-A, PPC, is not without the backing of law--Nothing is available on the record to establish that victim (PW-2) was located face-to-face to the house of appellant--Qua reduction in sentences of appellants on the charge u/S. 377, PPC warrants consideration by High Court--At the time of occurrence, one appellant was aged about eleven years whereas other appellant was aged about fourteen years--The appellants have expressed remorse and repentance with the assurance not to deal with said act in future--They are first offenders and have no previous criminal antecedent at their credit--Imprisonment for seven years each awarded by trial court is reduced to simple imprisonment for three years and six months each.
[Para 5, 6, 7 & 8] A, B, C, D, E, F & G
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 3--Child witness--Under Article 3 of the Qanun-e-Shahadat Order, 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness. [Para 5] B
2022 SCMR 50 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 364-A--Abduction or removal from lawful guardianship--Removal of a child only a few paces with object and purpose to commit sodomy, not at all to remove or take away from lawful guardianship, will not make an additional offence of abduction.
[Para 7 & 8] E & F
1985 SCMR 1822; 1986 SCMR 533; 1986 SCMR 1947;
1988 SCMR 601 ref.
M/s. Khawaja Qaiser Butt and Ijaz Ahmad Toor Advocates for Appellants.
Mr. Adnan Latif Sheikh, Deputy Prosecutor General for State.
Sardar Aftab Ahmad Khan, Advocate for Complainant.
Date of hearing: 21.2.2023.
Judgment
Ghulam Mustafa alias Bholu and Subhan Asif appellants faced trial before the learned Additional Sessions Judge, Multan in case FIR No. 1078 dated 05.11.2020 for the offences under Sections 364-A, 377, 377-B, 34, PPC, Police Station Mumtazabad, Multan and after conclusion of trial, vide judgment dated 19.11.2022, the learned trial Court convicted and sentenced the appellants as under:-
1. Ghulam Mustafa alias Bholu appellant:
Under Section 364-A, PPC, for seven years S.I.
Under Section 377, PPC, for seven years S.I. with fine of Rs. 10,000/-and in default thereof to further undergo two months S.I.
2. Subhan Asif appellant:
Under Section 377, PPC, for seven years S.I. with fine of Rs. 10,000/-and in default thereof to further undergo two months S.I.
The appellants were directed to pay Rs. 50,000/-each as compensation under Section 544-A, Cr.P.C. to Muhammad Hashir, victim (PW.2) and in default thereof to further undergo three months S.I each and same will also be recovered as arrears of land revenue. It was also ordered that all the above sentences shall to run concurrently and would be supervised by provision of Section 382-B, Cr.P.C.
Feeling aggrieved from the judgment of the learned trial Court, the appellants have assailed their convictions and sentences through the captioned appeals.
2. The prosecution story as given in the judgment of the learned trial Court reads as under:
“Sarfraz (PW.1) through his undated petition (Exh.PA) consequent upon which FIR dated 05.11.2020 (Exh.PB) was registered has briefly alleged that “on 01.11.2020 at 4:00 PM Subhan and Ghulam Mustafa accused persons present in the Court on bail took away his son Hashir aging 5½ years who was playing in the street and committed unnatural offence with him. On his (complainant) uproar witnesses Bashir and Haji Shamas (both given up being un-necessary) arrived whereupon accused persons ran away”.
3. Learned counsel for Ghulam Mustafa alias Bholu appellant contended that in the light of facts and circumstances of the case, the provision of Section 364-A, PPC is not attracted and as such conviction and sentence under Section 364-A, PPC awarded by learned trial Court to Ghulam Mustafa alias Bholu appellant is not tenable in the eyes of law. So far as the charge under Section 377, PPC is concerned, learned counsel for both the appellants contended that they do not dispute the conviction of appellants on this charge (Section 377, PPC), but laid their hands with the prayer that since the appellants were minors at the time of occurrence and were having no previous criminal history, so a lenient view may be taken and their sentence may be reduced.
4. On the other hand, learned Law Officer assisted by learned counsel for the complainant opposed the request of learned counsel for the appellants and prayed for dismissal of appeals with the submission that the appellants have committed a heinous offence and they have already been dealt with leniently by the learned trial Court.
5. Although learned counsel for the appellants have halfheartedly argued the case, but for the noble purpose of safe administration of justice, I have minutely scrutinized the record whereby it divulges that the prosecution in order to prove its case has examined as many as eight witnesses. Sarfraz Ahmad (PW.1) is the complainant of this case, who reiterated his stance as it was earlier got mentioned by him in FIR (Exh.PB) and he was duly supported by Muhammad Hashir, victim (PW.2), who consistently deposed that he was standing at some distance from his house when Bholu (Ghulam Mustafa appellant) took him (victim) to his house where Subhan Asif (appellant) was also present there and they both (appellants) after removing his trouser, one after another, did bad act with him. He (PW.2) further deposed that he told this fact to his father (Sarfraz Ahmad Complainant PW.1) and uncle as well as to police. He (PW.2) further stated that he was also produced for medical examination at Multan hospital as well as at Lahore and finally prayed in his statement before the learned trial Court that the accused/appellants should be punished being guilty persons. He was subjected to grueling cross-examination by the defence, but nothing beneficial for the appellants could be extracted from his mouth. I have also observed that at the time of recording evidence of Muhammad Hashir, victim (PW.2) being a child witness, the trial Court had duly tested his competency to give evidence. Moreover, under Article 3 of the Qanun-e-Shahadat Order, 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness. Reference is made to the case titled as “Zahid v. The State” (2022 SCMR 50) in which the conviction and sentence of accused recorded on the basis of deposition made by child witness were upheld by the august Supreme Court of Pakistan. In the case, the child witness has forcefully explained each and every aspect of the incident and despite asking lot of questions from him during cross-examination, his credibility could not be shattered by the defence.
6. In addition to the above, allegation of committing sodomy with Muhammad Hashir, victim (PW.2) levelled against the appellants and to this extent, medical evidence lends full support to the case of the prosecution. In this regard, relevant lines from the statement of Dr. Nasir Javaid, Exh.PMO (PW.8) read as under:-
“…… On anal examination a semi-heeled laceration about 1/3 x 0.1 cm found at 2 ‘O’ clock position. One external and one internal anal swabs were taken and sent to C/E PFSA Lahore for detection of semen, if any and DNA typing. However penetration is confirmed i.e. act of sodomy was committed upon the victim child ……”
Similarly, Subhan Asif and Ghulam Mustafa alias Bholu appellants were also medically examined by Dr. Nasir Javaid, Exh.PMO (PW.8) and were found capable to perform sexual act vide MLCs (Exh.PJ and Exh.PK). Thus the allegations levelled by Sarfraz Ahmad complainant (PW.1) and Muhammad Hashir, victim (PW.2) are fully established against the appellants.
7. After going through the above discussed evidence, it can safely be held that the prosecution was quite successful in proving the allegation of sodomy committed by the appellants with Muhammad Hashir, victim (PW.2), but keeping in view the prosecution’s own showing. I am of the view that the argument of learned counsel for Ghulam Mustafa appellant qua attraction of Section 364-A., PPC, is not without the backing of law. In this regard, it is discernable that nothing is available on the record to establish that Muhammad Hashir, victim (PW.2) was deceitfully or forcefully taken away, which is the primary requirement to constitute the offence of abduction Furthermore, according to un-scaled site plan (Ex.PB/1) the house of Muhammad Hashir, victim (PW.2) was located face-to-face to the house of Ghulam Mustafa appellant. More so, Muhammad Hashir, victim (PW.2) during cross-examination confirmed this fact while replying to Question No. 14 as under:-
“Q. No. 14. How far house of Bholu is from your house?
Ans. It is next after a house.”
I may observe here that removal of a child only a few paces with object and purpose to commit sodomy, not at all to remove or take away from lawful guardianship, will not make an additional offence of abduction. While holding so, I am guided by the dictum laid down in the Cases reported as “Shamas Saeed Ahmad Khan v. The State” (1985 SCMR 1822), “Muhammad Akhtar v Muhammad Rafique” (1986 SCMR 533). “Abdul Wadood v. The State” (1986 SCMR 1947) and “All Nawaz v The State” (1988 SCMR 601).
8. As a sequel of above discussion, conviction and sentence under Section 364-A, PPC, recorded by the learned trial Court against Ghulam Mustafa alias Bholu appellant are set aside. So far as the conviction of both the appellants on the charge under Section 377, PPC is concerned, I am of the considered view that the conclusion arrived at by the learned trial Court qua conviction of appellants on this charge is based on sound and cogent reasoning and to this extent, I am not at all persuaded that there is any infirmity or illegality so as to call for any interference into the same. At the same time, I feel apposite that the prayer of learned counsel for the appellants qua reduction in sentences of appellants on the charge under Section 377, PPC warrants consideration by this Court. In this context, it is observed that at the time of occurrence, Subhan Asif appellant was aged about eleven years whereas Ghulam Mustafa alias Bholu appellant was aged about fourteen years and this fact is established from the statement of Dr. Nasir Javaid, Ex.PMO (PW.8) who had medically examined them vide MLCs (Exh.PJ and Exh.PK). Furthermore, the appellants have expressed remorse and repentance with the assurance not to deal with said act in future. They are first offenders and have no previous criminal antecedent at their credit. Therefore, while maintaining the conviction of Ghulam Mustafa alias Bholu and Subhan Asif appellants on the charge under Section 377, PPC, their sentence of simple imprisonment for seven years each awarded by learned trial Court is reduced to simple imprisonment for three years and six months each. However, the sentences of appellants in respect of fine and imprisonment in default thereof as well as payment of compensation to Muhammad Hashir, victim (PW.2) under Section 544-A, Cr.P.C. and imprisonment in default thereof, as described in the opening paragraph of this judgment, shall remain intact with further direction that all the sentences of imprisonment shall run concurrently and the benefit of Section 382-B, Cr.P.C., shall also be extended in favour of appellants.
9. The appeals in hand i.e. Criminal Appeal No. 1111 of 2022 and Criminal Appeal No. 1133 of 2022 are disposed of in the above terms.
(K.Q.B.) Appeals disposed of
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