Forty-fifth year 0/ publication

REGD. No. CPL .. 03

VOL. XLV PART 3

Pakistan

Criminal Law Journal

Editors:

[P Cr. L J] JOURNAL OF CRIMINAL RULINGS

March, 2012

MR. MUHAMMAD ANWAR KHOKHAR, B.A., LL.B.

MR. MUHAMMAD WAHN AZHAR, LL.B. (HONS.) (LOND.); . LL.M. (LOND.); BAR-AT-LAW.

MR. KASHIF MIRZUBAIR, LL.B. (HONS.) (WARWICK), LL.M. (LOND.)

[pp. 385 - 576] Mode of Citation: 2012 PCr.U 437 etc.

PAKISTAN' CRIMINAL' LAW JOURNAL 35-NABHA ROAD, LAHORE (PAKISTAN)

(Phones: 37356228137356287) 8in_it pldpribUiblrl@hutmllil.luim·=· inftjOPldpalJll,Ii.". 00",

Fax No. (042) 3'238113

Printed and Published by P L D Publishers at the Pakistan Educational Press, Lahore.

For regular subscribers: Rs.951-(Postage/carriage extra)

530 PAKISTAN CRIMINAL LAW JOURNAL [Vol. XLV

Bolaki, Thul where the project was actually instajled, Was the property of Mr. Nazir Ahmed SOli of Haji Muhammad Rahim ' Khoso who is guarantor in the loan and is accused/respoJldent No.5. The said Nazir Ahmed has sold out the above said project to Mr. Muhammad Ali Jamali and Mr. Abdul Ghafar Jamali in 1993, it is worth-mentioning that the accused/respondents cheated the Bank and mOr:fJJaged the Plot No. S. No. 538, Deh: Maloi, Tapo Misripur, raluka Thul but did not install the machinery/plant on the same instead they installed plant on S. No. 283, Deh Bolaki, Tapo Old Thul, TalukaThul.

From the contents of memo of appeal itself it appears that the criminal offence is directed against the respondent NO.5 Le. Nazir A Ahmed. Counsel for the appellant contends that it is an admitted position that loan was obtained by the respondents Nos.l, 2 and 3 and therefore they are liable for the criminal offence as well.

Under the law obtaining loan and inability to pay back the same is not a criminal offence. It may be a criminal liability to be proceeded in civil forum provided under the law but the commission of default in repayment of loan does not give birth to a criminal offence. However, from the memo of appeal it appears that the machinery/plant has been removed which allegation is directed, against the respondent No.5, therefore, criminal proceedings against the respondent No.5 shall continue, whereas no useful purpose will be served if remaining respondents are proceeded against as there is no likelihood of' their conviction in view of hereinabove facts.

With the above directions this Criminal Acquittal Appeal is disposed of.

H.B. T.lI-40/K Order accordingly,

2012 P Cr. L J 530

[Faderal Shariat Court1

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ '

MUHAMMAD ASLAM---Appellant

versus

THE STATE and anotherc--Respondents

rriminal Appeal No. 86-L of 2010, decided on 9th December, 2011.

2012] Muhammad Aslam v. State (Shahzado Shaikh, J)

531

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII oj1979)--- .

----So 12"'--Penal Code (XL V of 1860), S.377---Kidnapping or abduction in order to subject person to unnaturallust---Sodomy---Appreciation of evidence---F.l.R. of day/ight.occurrence was lodged by thecomp'lainant promptly on the same day giving details of occurrence in which accused was nominated---Victim who was star witness in the case, was minor at the relevant time, but proved .to be competent witness to .record his statement, gave full details regarding the occurrence---Victim was cross-examined at length, but his veracity could not be. shattered; his statement was fully corroborated by complainant---Solitarj statement of the minor victim was sufficient to prove the allegation as same was consistent, corroborated and trustworthy and fully supported by medical evidence---Report of Chemical Examiner was positive and doctor after observing report of Chemical Examiner,opilzed that act of sodomy was committed---Substantive piece of evidence i.e. medical evidence, report 'of Chemical Examiner, statement· of victim himself which was supported by the complainant, were sufficient to connect accused With the crime, without any shadow of doubt---Accused could not produce any corroboration/evidence to prove his plea that he · had falsely been involved in the case and that prosecution witnesses had deposed against him being related inter se---Counsel for accused could not produce any thing in writing regarding compromise allegedly arrived at between the parties,' even otherwise offence was not compoundable---No mitigating circumstance could be pointed out which could warraJit reduction of sentence of the accused---Trial Court had rightly convicted and sentenced accused, in circumstances. [pp. 537, 541J A & C

Abdul Wadood and another v. The State 1986SCMR 1947 . distinguished.

Waqar-ul-Islam and another v. State 1997 PCr.U 1107 and 2006 SCMR 1609 reI.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----So 12---Penal Code (XLV of 1860), Ss.359 & 362---'Kidnapping', and 'abduction '---Distinction---In kidnapping a minor person or person of unsound mind was removed from the lawful guardianship; and was simply tak;en away, or enticed· to go away with the kidnapper---In abduction, force, compulsion or· deceitful means· were used---In kidnapping the consent of the kidnapped was immaterial, whil~ in abduction consent would condone the offence---in kidnapping intent of accused was irrelevant, but in abduction, it was the all important

tJCr.LJ

532 PAKISTAN ,CRIMINAL LAW JOURNAL [Vol. XLV

question---Kidnapping was not a continuous ,offence, but in abduction . whenever an abducteewas removed from one place to another,' it was ,an offence. [p. 539J B

AIR 1943 Lah. 227 and 35 Cr. LJ 1386 reI.

Ch. Muhainmad Qasim for Appellant.

Ch. Muhammad,Ishaque,'D.P.G for the State.

Complainant in person.

Date of hearing: 9th December, 2011.

JUDGMENT

SHAHZADO SHAIKH, J.---Appel!ant Muhammad . Aslam has through this,appealchallenged the judgmentd8.ted 5-5-2010 delivered by the learned' Additional Sessions Judge, Bhalwal whereby . he was convicted under . section 12 Offence 'of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced 'to 25 years' rigorous imprisonment with a fine of Rs.50,000" in default whereof to further suffer,4 months' , imprisonment. He was' also convicted under section 377 of the' Pakistan Penal Code and sentenced to life imprisonment with a fine of Rs.50,OOO or 4 months', imprisonment. He was also ordered to pay compensation of RS.l,OO,OOO to the victim under'section 544-A of the Code of Criminal Procedure, in default whereof to further suffe~ 6'months' imprisonment. Both the sentences shall run concurrently with benefit of section 382-B of the Code of Criminal Procedure. . .

2. .Brief facts of the prosecution case as alleged in the complaint Exh.PA and F.I.R. Exh.PAIl dated 15-9-2006 lodged by I;:omplainant Umar Hayat P.W.2 are that Muhammad Rizwan, ,innocent child of 1~ years, is his nephew whose father Khizar Hayat was murdered in 1996. The supervision etc. of Muhammad Rizwan is with him. Muha_d Rizwan was a . student of 8th class. On the day of occurrence, Rizwan was returning to his home- after closure of the school at about 11-00 a.m. When he reached in the street near his house; accused Muhammad As.am was standing. He asked Rizwan to listen to him after placing his school bag in the house. Rizwan kept his school,bag in the house and came out. Accused Muhammad Aslam .asked Rizwan to accompany· him on the pretext of some work with him. Accused took Rizwan with him towards Mobilink Tower. Rizwan asked him about the work .whereon accused said to Rizwan that'if he would make a noise, he would get him abducted thfoughAshique Kumhar (oneP.O).Then he took Rizwan into adjacent sugarcane crop where he forcibly opened up the string of Rizwan's Shalwar; ,laid him on the, ground and· starred committing unnatural • offence with Rizwan. When Rizwan did not come ~ome,complainant

pCr.U

2012] Muhammad Aslamv. State 533 (Shahzado Shaikh, 1)

side got worried whereon complainant and Shehzad Ahmad paternal cousin of the complainant went out in order to inquire/search about Rizwan. In the street, Nazar Muhammad met them. They inquired from him about Rizwan who told that Muhammad Aslam was taking Rizwan on the way that leads towards Tower. They both went towards the path leading towards the tower when from sugarcane crop they saw that accused Muhammad Aslam was committing sodomy with RizWan while laying him on the ground and Rizwan was screamirig. Seeing them, accused Muhammad Aslam ran inside the sugarcane crop.

3. After registration, the C4se was investigated by Inspector Abdur Rehman, Station House Officer who reached the venue of crime; recorded statements of P,Ws.; prepared injury statement Exh.PC; after this victim Rizwan was escorted by Constable Suleman to Hospital for medical examination; prepared rQugh site plan Exh.PD on the pointation

'of P.Ws.; Constable Suleman handed over to him a sealed phial for onward transmission to the office of Chemical Examiner. On 19-9-2006 he arrested the accused Muhammad Aslam.Effected recovery from the accused; recorded statements of the witnesses under section 161 of the Code of Criminal Procedure. Thereafter he completed the investigation and submitted report under section 173 of the Code of Criminal Procedure against the accused.

4. Charge was framed by the learned trial Court against the 'accused Muhammad Aslam on 7-1-2008 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 377 of the Pakistan Penal Code. Statement of the accused was recorded with reference to charge-sheet. He pleaded innocence and claimed trial.

5. In order to prove the case, the prosecution produced 7 P. Ws. at the trial. The gist of their statements is as under:--

(i) P.W.l: Dr.Waqar Hameed conducted potency test of accused Muhammad Aslam' and foundhlm fit to perform sexual intercourse. He also medically examined the victim Muhammad Rizwan and observed as under:--

"The victim was not habitual. Semens were stained all around the anis. Sto(J1 was passed and he was not shy. Laceration on 9-0-clock position. Anil mucusae was red and bleeding. No poise or any venrea[ disease was present.

As per Chemical Examiner's repon, the anal swabs were stained with semen.

In the opinion of the doctor, the sodomy was committed with the victim.

534 PAKISTAN CRIMINAL LAW JOURNAL [Vol. XLV

(ii) P.W.2: Umar Hayatis complainant o{the case. He endorsed the contents of the crime report Exh. PA.

. "

(iii) P.W.3: Muhammad Rizwanis victim of the case. He also supported the occurrence and corroborated the version "of the complainant. "

(iv) P.W.4: Muhammad Azam Mohlirrar is a formal witness of handing over the sealed parcel for submission 'in the office of Chemical Examiner. Rawalpindi. .

(v) P.W.5: " Constable Muhammad Khan' is the formal witness of arrest of accused Aslam b:y Abdur Rehman S.l.

(vi) P. W.6: Abdur Rehman InspectOi" investigated the case. His statement has been expounded in para NO.3 supra.

, (vii) P. W. 7: Constable Muhammad Suleman got medically examined

the victim Rizwan.

6. After closure " of theprosecutionevid.ence. the accused Muhammad Aslam was examined under section 342" of the Code of Criminal Procedure. He denied the charges and pleaded innocence. In reply to the question "why this. case against you and why the P. Ws. have deposed against you?". accused Muhammad Aslanistated as follows:-- .

"The P. Ws. have falsely involved me in this case and they have deposed being related inter seand grab money from me: ..

The accused neither did appear as his own witness' under section 340(2) of the Code of Criminal. Procedure nor did he produce " evidence in his defence.

7. The learned trial Court after hearing learned Counsel for the contending parties. convicted and sentenced· the appellant as mentione,d in the opening paragraph of this judgment. . .

8. We have gone through the evidence of witnesses of the prosecution. statement of the accused and the material available on record. Relevant: portions of the impugned judgment have been scanned.

9. Ch. Muhammad Qasim. "learned "Counsel for appellant Muhammad Aslam has formulated the following points for consideration of the C;ourt:--

(i) The accused has been seriously prejudiced because cllarge was not framed against him by the learned trial Court according to the procedure.

2012] Muhammad Aslamv. State (Shahzado Shaikh, J)

535

(ii) The kidnapping of the victim was not proved because the victim himself admitted in his cross-examination that he was not forcibly abducted from his house. Furthermore the prosecution has not established the distance between the house of the victim

, and the place of OCCUHence.' In this regard the learned Counsel relies upon the following judgment:--

1986 SCMR 1947

Abdul Wadood and another v. The State

No specific mention of distance between place where victim child was playing and place to which he was removed for committing carnal intercourse against order of nature---Distance, at places,

, described as short distance and victim descril?ing it as a long distance---Discrepancyand lack of certainty---Benefit of doubt, held, must be extended to. accused so far as offence under S.12 of Ordinance was concerned.

(iii) No independent-witness appeared before the trial Court to depose against the appellant except the complainant and the victim.

(iv) Last worn clothes of the victim were not produced.

,(v) The doctor had not observed any marks of violence on the body of the victim.

(vi) Nazar Muhammad witness who said that he had seen the victim ,going with the accused was not produced.

(vii) There ,are contradictions between the statements of the complainant and the victim.-

(viii) No one had created any hurdle when the victim was abducted by the accused from near his residence.

(ix) Both the parties 'Were living in the same village and there was a dispute regarding cattle business which was the reason that the accused was falsely involved in this case. •

(x) The impugned judgment is based upon misreading and non­reading.

,(xi) The story narrated in the F.I.R. is highly improbable.

(xii) The complainant and the victim are related, inter se and are interested witnesses.

(xiii) The semen stained swabs were sent for test of grouping but the

PCr,LJ

536 PAKISTAN CRIMINAL LAW JOURNAL' [Vol. XL\ \

report was not produced. In this regard the learned Counse relies upon the following judgment--

1997PCr.LJ 1107

Waqar-ul-Islam and another v. State

Semen of accused ,not sent to Serologist for grouping-­Evidentiary value of semen stained swabs---Semen found on vaginal or anal swabs loses eVidentiary ,value if semen of accused is not obtained and got examined and matched With semen found on'the said swabs by Serologist.

(xiv) As a last resort, without prejudice to his arguments, the Jearned Counsel stated that compromise has been. effected between the accused . and the complainant party and Umar, Hayat, complainant, is. present in the Court. The learned. Counsel requests for reduction of sentence of the appellant on the basis of compromise effected between the parties.

12. On the other hand, Ch. Muhammad Ishaque, DPG has stated as under:--

(i) F.I.R. was lodged promI>tly in this daylight occurrence.

(ii) The complainant narrated the natural story in the F. I. R. which was fully corrol>orated by him as well as, the victim in their statements before the learned trial Court. Ocular accounts are natural and confidence-inspiring.

(iii) The victim was minor as he was about 13 years old at the Mme of occurrence.

(iv) There was no enmity between the complainantandtheaccused party.

(v) Substantial pieces cif evid'ence are available on the record against • the accused, therefore, corroboration is not necessary.

{vi) All the P.Ws. recorded their statements 'before the learned trial . ~ourt in line With each other and there were no discrepanCies

between their statements.

(vii) As· regards. the argument'of defective' charge, the learned Counsel for. the State stated that if there is any irregularity in framing of the charge, it has not prejudiced the right of the' accused because he did not challenge the same throughout the trial. The evidence of the prosecution was recorded in his presel!ce . and he availed full opportunity to cross-examine theP.Ws.

pcr.LJ

2012] Muhammad Aslam v. State (Shahzaiio Shaikh,. J)

537

(viii) The offences under section 12 of 'the Offence' of Zina (Enforcement of Hudood) Ordinance and, finder section ~77,' P.P.C. are not compoundable, therefore, the compromise in this case between the accused, and the complainant has no value. The State is a!soparty in this case. '

(ix) Test/grouping/matching, is not necessary because In this case only one accused is involved and the question of grouping test arises in those cases wbere two or more accused are involved.

(x) The accused had committed heinous offence with a minor orphan. therefore, he deserves no leniency.

(xi)' The prosecution has proved its ~ase· beyond any shadow of doubt. Furthermore the learned Counsel states that in this case the learned trial Court had already taken a lenient view while awarding sentences.

After careful examination of the evidence and consideration of the above discussion, we have c~ncluded as follows;--

. 13. Complainant Umer·Hayat P.W.ZlofJged the F.I.R. on 15-9-2006 regarding this painful occurrence the $ame day with his orphan nephew Muhammad'Rizwan, victimP.W.3. He gave details of occurrence and categorically nominated accused Muhammad Aslam who lddnappe!;l the victim 'from his house, took him in sugarcane crop where he forcibly committed sodomy with him. Initially force was not used and the accused by enticing took the victim near the Mobilink Tower. and then he by extending threat to()k the victim in the sugarcane field. The accused by extending threat to the victim had also added the element of force.

14. Muhammad Rizwan, victim is the star witness in this case. He appeared before the learned trial Court as P. W.3. He was minor at that time, therefore, the learned trial Court after satisfying itself by putting some questions considered, him a competent witness to record his A statement. Although he was aged 13114 years at the time of recording his statement yet he gave full details regarding the occurrence and nominated !t1uhammad Aslam the person who committed the offence. He was cross­examined at length but his veracity could not be shattered. Ttle statement' of the victim was so natural that he himself stated during cross­examination that he was not forcefully abducted from his house and the accused took him up to tower on a pretext. In the same breath he stated that the accused threatened him to remain mum otherwise he would abduct him by calling Ashiq Kumhar (P.O and desperate pe,rson). The statement of the victim was fully corroborated by the complainant Umar Hayat P.W.2. Although Nazar Muhammad, who said that he had seen the ~ictim with the accused while go~ng towards the Tower of Mobilink

PCr,U

53& PAKISTAN CRIMINAL LAW JOURNAL [Vol. XLV

and Shahzad Ahmed, who was. searching the victim along with the complainant. were not produced yet in. such cases solitary statement of the victim minor is sufficient to prove the allegation provided the same i"s consistent, corroborated and trustworthy, and in thIs case fully supported by the· medical evidence, Non-appearance of Nazar Muhammad and Shahzad Ahmed before the learned trial Court as witnesses are not so material' as the accused, the complainant and the. said witnesses belong to the same vicinity and usually the people of the same locality avoid. to become witnesses against the accused due to the risk of establishing erimity with the .accused.

15. Muhammad Rizwan, victim was medically examined by Dr. Waqar Hameed P.W.lonthesame day i.e. 15~9-2006. The doctor observed laceration, redness and bleeding on reCtal examination. The report of Chemical Examiner Exh. PG·. w'as positive as swabs were found . stained' with semen. The Doctor, after observing· report of Chemical A Examiner, opined that that act of sodomy was done. Although semen stained swabs were sent to the Serologist but no report was produced In this regard. Semen grouping. is not essentj.al because in -this case only one accused Was invofved and grouping·.is necessary in those cases where accused had to be identified/connected' with offence. Even otherwise substantive piece of evidence i. e. medical 'evidence, report of Chemical Examiner, statement of the victim himself which was supported by the complainant is available on the record to. connect the appellant; fully identified, with the crime, wjthout any shadow of doubt. It is not a lapse on the part' of the prosecution if grouping test was not conducted however the reniedy was also available to the accused that if he was innocent he could have himself also applied for the same. The accused in .his statement under section 342; Cr. P. C. simply stated in his defence that. "the P. Ws. have falsely involved me in this case and they have deposed being related inter se and grab money from me. " But he did not produce any corroboration/evidence to prove'his·plea.

16. As regards the compromise between the parties, on a Court question: the learned Counsel for. the appellant stated that although the offences are not compoundable yet he requested for reduction of sentence by considering the compromise as niitigatingcircumstance. However, the learned Counsel bas.. not produced anything in writing regarding the compromise while complainant Umar Hayat appeared before the Court and stated that he has forgiven the accused in the name of Allah Almighty. Neither the victim himself was present nor there was any word from him in this regard in writing. The learned Counsel for the State has vehemently opposed the plea of compromise and stated that the offences are not compoundable and these offences not only affect the

,complainaht and the victim but also go against the objectiVes a,nd

PCr.L.l

..

.2012] Muhammad Aslam v. State 539 (Shahzado Shaikh, 1)

responsibilities of the State, under the law. Umar Hayatcomplainant is uncle of Muhammad Rizwan victim, who was minor ;1t the time of the occurrence, and now a major. Furthermore, mitigating circumstance could be pointed out whieh warrants reduction of sentence of the appellant. In this ci!se. following is also re~evant:--

"In absence of any mitigating circumstance, the court may not take lenient view. If culprits are allowed to be treated leniently, the object and purpose of promulgation of penal law would be frustrated. If an offence has been established against an accused, he is bound to be punished adequately under the law. [2006 SCMR 1609 (d)]."

17. So far kidnapping of the vic tim is concerned, it is evident that the innocent minor was first misled on a pretext, to come out and accompany the accus"ed. Particularly in rural culture, people living in the same village/neighbourhood, do trust each other and come out to listen to or even help a neighbour. The victim and the complainant, without <}ny padding, gave a natural account of the occurrence as it happened . .Motive of the crime, and ingredients of kidnapping started unfolding as soon as the minor started naturally feeling fear when he was taken quite a distance away to a comparatively isolated place. The minor victim questioned the accused about his purpose of taking him (minor victim) there. It may psychologically be sufficient to frighten a minor with a threat of a genie, a dacoit, a kidnapper, a proclaimed offender, etc., etc. The accused unfolded· and added ingredients of force by putting threats of getting him kidnapped by a notorious proclaimed' offender and by dragging the minor victim towards the crop field. In this connection section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is reproduced below:--

PCr.U

"12, Kidnapping. or abducting in order to subject person to unnatural lust. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be So disposed of as

"to be put in danger of being subjected, .to the unnatural lust .of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty­five years, "and shall also be liable· to fine, and, if the punishment be one of imprisonment,shall also be awarded the

. punishment of whipping not exceeding thirty stripes."

In this connection following is relevant>-

Kidnapping and Abd.ction. Diffe. rence. In kidnapping alB minor person or person of unsound mind is removed from the

540 PAKISTAN CRIMINAL LAW JOURNAL [Vol. XLV

'lawf~l guardianship and is simply taken away or enticed to -go away with the kidnapper. In abduction force, compuls.ion or deceitful means are used. In kidnapping. the consent of the kidnapped is immaterial While in abduction consent condones the

. offence. In kidnapping intent or the accused is irrelevant, but in E . abduction, it is the all important questi,cin. Kidnapping is not a

contillUous offence but in abduction whenever an abductee is removed from one place to imother it is an Qffence. [AIR 1943 Lab. 227;35 Cr.W 1386]

18. The plea of learned counsel for the appellant that the, prosecution ,has not established the distance between the house of the victim and the place of occurrence, is not of material significance, as the victim and the complainant,both have very clearly indic'ated the points and places involved in the occurrence. Mere technical questions of measurement of distances from a rural minor victim cannot be expected when his clear ocular .narrative has unshakenlywithstood the examination before· the learned. court. Furthermore. distances are iridicated. by . people in rural

'areas in terms of field measurements which denote areas but not in terins ' of linear distances, i.e., villagers measure distances as indicated by one side of the field. These distances. are always approximate" depending on circumstances of each case .. In this case the ininor victim was taken from a pretext from hisnouse' and taken away to a suitably solitary place indicated . by the Mobilink Tower,and· the sugarcane crop fieltl. Therefore, in this case misleading pretext, taking away the minor victim to the place of isolation,and fully covered in terms of height within the sugarcane crop field,are more relevant ,in circumstances of the offence/occurrence. Furthermore the defence' had not put any question to any witness before the learned trtal Court regarding the distan~e between the house of the victim and,' the place where the occurrence took place.

19. ,Therefore, case-law (1986. SCMR 1947 Abdul Wadood and another v. The State), cited by the learned counsel for the appellant, is notrelevant. Furthermore, no such point/case was made out before the learned trial Court.

20. Pointregarding independent witness in addition to the victim and the complainant is more of a general nature asH does not point out to any deficiency in the evidence brought on record by the, victim and the complain,ant, which otherwise could have corroborated a . particular aspect or would have reflected on any missing link or could have • completed the chain at' any point. When minor victim and the complainant could provide confidence-inspiring complete picture from ... h; ... h A"'ubtless conclusion could be drawn, before the trial Court, the

2012] Muhammad Aslam v. State (Shahzado Shaikh, J)

541

demand is not· based on any concrete point which could· have demanded additional independent witnesses.

21. The. MLR and the deposition of the Doctor before the learned trial Court, reproduced above, not only confirms 'penetration', and consequently the criminal act of unnatural lust, but also portrays forceful . brutality in the commission of .the offence, which does not leave any room for further demand by the defence c<;lUnsel for finding more marks of violence on the body of the victim, in the circumstanC'es. .

22. The assertion of the defence counselaboul existence of a dispute regarding cattle business, as a reason for falsely involving the accused in this case, has a double edge, but it is not the case of prosecution.

23. The defence assertion that the complainant and the victim are related inter se and are interested witnesses, has no value at all, as the minor victim is an orphan under care . of the complainant who is his uncle. It is but natural for to stand jointly' for their case involving personal and family honour, physical integrity, security and sanctity·.

24. Complaint/F.I.R. of daylight occurrence was lodged promptly, the same day. Contents of the complaint/F.I. R. sound a natural story, fully corroborated by the victim and the complainant in their statements before the learned trial Court, as ·confidence-inspiring accounts.

25. The learned trial Court had already taken a lenient view while awarding sentences under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 377, P.P.C.

26. From the facts and circumstances of the case, it is established C

that the .prosecution has proved its case beyond any shadow of doubt and the learned trial Court has rightly convicted and sentenced the appellant. In this view of the matter, qriminal Appeal No.86/L of 2010 filed by Muhammad Aslam, appellant is dismissed and his conviction and sentence awarded to him by the learned trial Court vide judgment dated 5-5-2010 passed by the learned Additional Sessions Judge, Bhalwal in Hudood Case No.53 of 2006 and Hudood Trial No.02 of 2008 under section 12 of the Offence ofZina (Enforcement of Hudood) .Ordinance VII of 1979 to twenty-five years' R.I. with fine of Rs.50,Ooo .or in default thereof to further undergo four months' imprisonment, under' section 377, P.P.C. to imprisonment for life with fine of Rs.50,OOO or in default thereof to further undergo four months' imprisonment and under section 544-A. Cr.P.C: to pay compensation of Rs.l,OO,ooO ,10 the victim as well as the benefit of section 382-B, Cr.P.C. extended by the learned trial Court are maintained.

PCr.JJ

542 PAKISTAN CRIMINAL LAW JOURNAL [VoL XLV

27. The above are the reasons of our short order dated 9~12-2011 ,announced in the open Court.

H.B.T/lIFSC

2012 P Cr. L 1542

[Sindh]

Before Shahid Anwar Bajwa, 1

ALI SHER---Applicant

versus

THESTA TE---Respondent

Appeal dismissed.

Criminal Revision Application No. 44 of 2011, decided on 20th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 439, 514 & 561,.A--~Criminal revision---Forfeiture of surety bond---Accused for whom the petitioner stood surety and was released on bail, jumped the bail---Non-bailable warrants were issued against accused and surety bond of the petitioner was forfeited and notice to the surety was issued under S.514, Cr.P.C. which notice was repeated for a number of times---Assistant Sessions Judge. o;dered that the entire bond. amount be imposed upon surety as penalty---Said" order. was challenged in appeal and Appelldte Court taking lenient view reduced amount of penalty from Rs.I00,OOO to Rs.50,OOO---Accused had remained absconder jor 5 years---Appellate Court had already' shown' leniency . and reduced amount of penalty---No further indulgence by High Court was called for, in circumstances. [pp.543, 544J A & B

Tahir Mehmoo'!i Bashir v.The State and another 2010 YLR 466; Sardar Ahmad v. The State' 1993 PCr;LJ 2451 and Muhammad Khan v. The State 1986 PCr.U 2028 distinguished.

Ashfaque Hussain Abro for Applicant ..

Ameen Ahmed Narejo for the State:'

Date ofhearin'g: 20th July, 201 L

ORDER

SHAHID ANWAR BAJWA, J.-c-The present applicant stood' . surety for accused Rano son of Tayab and had executed a surety bond on

PCr.Ll