Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision No. 763 of 1965, decided on 31st October 1966.
S. 118‑Evidence of minors Magistrate appending note before recording depositions that he is satisfied that minors are competent witnesses‑Requirements of ,S. 118 satisfied.
S. 4‑Offence under S. 377, Penal Code (XLV of 1860)‑Punishment of whipping can be imposed.
S. 439‑Sentence can be enhanced even though convict has undergone sentence imposed by lower Court.
Crown v. Jagat Singh I L R 1 Lah. 453 and Emperor v. Shahzad A I R 1928 Lah. 961 rel.
Mian Abdul Ali for Petitioner.
Asad Hussain Zaidi for the State.
Date of hearing: 18th October 1966.
Ata Muhammad Shah aged about 28 and a teacher in the Primary School, Bank Street, Mianwali (hereinafter called the petitioner) was tried and convicted by the learned Additional District Magistrate, Mianwali, for an offence under section 377, P. P. C. for having committed sexual intercourse against the order of nature with Javed Iqbal aged about 9, a student in the same school, and sentenced to two years' rigorous imprisonment and 15 stripes under the Whipping Act, 1909 (Act IV of 1909). On appeal, his conviction and sentence of imprisonment were main tained by the learned Sessions Judge, who, however, took the view that the sentence of whipping could not be legally imposed for an offence under section 377, P. P. C. and, therefore, remitted the sentence of whipping. The petitioner has come in revision against his conviction and sentence as reduced by the learned Sessions Judge. This was registered as Criminal Revision No. 763 of 1965. A notice was also issued to him under section 439, Code of Criminal Procedure, 1898 to show cause why his sentence should not be enhanced. This was separately regis tered as Criminal Revision No. 787 of 1965. This Judgment will dispose of both the revisions.
2. The case for the prosecution in the trial Court briefly was that Javed Iqbal was engaged in kite flying along with his younger brother Aftab Iqbal alias Kala, on the 30th of June 1964, at about 7 a.m. On that day, the school was closed. The petitioner sent for Javed Iqbal through another student in the same school named Muhammad Ramkan (P. W. 5), who found Javed lqba1 in the street and told him that he was called by the petitioner. Javed Iqbal entrusting the kite to his younger brother, went to the school and found the petitioner waiting for him. The petitioner asked Javed Iqbal to fetch some registers from the class‑room.. As the boy went inside, the petitioner followed him in the room. While in the room the petitioner committed unnatural offence with him while seated on a chair. Javed Iqbal offered resistance by crying but he was coaxed into silence. The petitioner, after the lapse of an interval is alleged to , have tried to repeat the offence for the second time but the boy started crying which attracted his maternal uncle Abdur Rahim (P. W. 2). On seeing him enter the room, the petitioner tried to escape. He, however, was given a chase by Abdur Rahim who with the help of Nur Khan (P.W. 3) and one Dost Muhammad (who has not been examined) was able to apprehend the petitioner. From there the petitioner was taken straight 'to the Police Post with the boy who narrated the whole incident which was reduced into writing Exh. P. A. on the basis of which the case was registered.
3. During the investigation, the police recovered the semen stained shalwar (Exh. P. 3) from the person of the petitioner and pyjama (Exh. P. 2) from the person of Javed Iqbal. A semen- stained piece of cloth (Exh. P. 4) alleged to have been used by the petitioner for cleansing his private parts was also recovered from inside the class‑room besides the chair (Exh. P. 1) upon which the petitioner is alleged to have seated himself for the perpetra tion of the offence. Javed Iqbal was also medically examined by Dr. Z. H. Mansoor (P. W. 10) on the same day at 12‑00 who found the following injuries on his person :‑
(1) A contusion1/4" x 1/4", just by the side of the medial border of left scapula near the lower end.
(2) Congestion in the lower portion of the rectum and around the anus.
Two rectal swabs were also taken and sealed in separate bottles. According to the report of the Chemical Examiner the shalwar Exh. P. 3 taken off from the person of the petitioner, the two swabs and the piece of cloth Exh. P. 4 were all stained with semen. The petitioner was also examined at about the, same, time but the doctor found no visible mark of injury on his person.
4. The petitioner denied the commission of offence by him and attributed the case against him to his strained relations with the Headmaster of the School, Malik Muhammad Hussain (P. W. 4), who was a witness to the recovery of the piece of semen‑stained cloth (Exh. P. 4) and chair (Exh. P. 1) from the clays‑room. The petitioner stated that Malik Muhammad Hussain had very cordial relations with the family of Javed Iqbal. He, however, annoyed both the boy's father and Malik Muhammad Hussain when he refused to give pass marks to boy who had tailed in his annual examination. Piqued by his refusal, the headmaster and boy's father combined in the concoction of this false case against him to bring him to grief. The petitioner also pleaded alibi. His plea on that score was that at , the time of the alleged occurrence he was actually engaged in a meeting of teachers in the Zadakhel Primary School at some distance from the alleged scene of occurrence where he remained busy from 7 till about 11 when he was called out and taken to the police station.
5. The learned trial Magistrate on a consideration of the entire evidence of the prosecution and the defence came to the conclusion that the prosecution case is proved in toto and rejected the defence version. In appeal learned Sessions Judge, however, was not impressed by that part of the prosecution case according to which the petitioner was apprehended by Abdul Rahim and Nur Khan while running away from the scene of occurrence, Never the learned Session Judge was of the view that there is substantial evidence to connect the accused with the crime". In reaching that conclusion, he believed the evidence of Muhammad Ramzan (P. W. 5) who was sent by the petitioner to call Javed Iqbal and the evidence of Javed Iqbal himself. The learned Ses sions Judge also found in the petitioner's trousers Exh P. 3 cloth Exh. P. 4 rectal swabs all of which were found to be stained with semen and the injuries on the person of the boy, particularly the congestion in the rectum, as furnishing a strong corroboration to the oral testimony of Javed Iqbal and Muhammad Ramzan sufficient to sustain the conviction of the petitioner for the offence for which he was charged.
6. Learned counsel for the petitioner argued that Javed Iqbal and Muhammad Ramzan, the two witnesses upon whose evidence the learned Sessions Judge primarily relied to maintain the con viction of the petitioner, cannot be treated as credit‑worthy because of their tender age, more so when the record of the proceedings in the trial Court does not on the face of it, show that the learned trial Magistrate was satisfied that they appreciated the sanctity of the oath. Javed Iqbal and Muhammad Ramzan, are both students, respectively, aged 9 and 11 years. Therefore, it must be accepted that they had attained sufficient maturity to understand and to give rational answers to the questions asked of them. Indeed, the learned trial Magistrate appended a note before recording their respective depositions that he was satisfied that they were competent witnesses. This amply satisfied the requirements of section 118 of the Evidence Act, 1872.
7. The petitioner's learned counsel next argued that the learned Sessions Judge having disbelieved the essential link in the prosecution case concerning the apprehension of the petitioner as he was trying to run away from the scene of the occurrence, rendered the entire prosecution case doubtful and this secured to the petitioner a right to claim benefit of doubt. With this contention I do not agree. As observed already, the learned Sessions Judge did not say that the evidence regarding the appre hension of the petitioner was perjured: he merely regarded it as doubtful. Nevertheless, he was careful enough to say that there was ample evidence to connect the petitioner with the commission of the offence. That conclusion is unassailable having regard to the evidence of the victim of the crime and that of Muhammad Ramzan as corroborated by the injuries on the person of Javed lqbal and recovery of semen‑stained trousers and piece of cloth and 'anal swabs which too were found by the Chemical Examiner to be semen‑stained. The suggestion that the petitioner had been a victim of the boy's father's pique and the headmaster's strained relations with him, is fantastic and rightly rejected by the Courts below. It is impossible to believe that a father of a school‑going boy of 9 years would stoop so low as to allow his son to be subjected to sodomy in order to fabricate a case under section 377, P. P. C. against the boy's teacher whose only fault was that he declined to give pass‑marks to the boy who had failed in the annual test. There fore, I entirely agree with the conclusions reached by the Courts below that offence under section 377, P. P. C. is established against the petitioner beyond any reasonable doubt and dismiss the criminal revision filed by him.
8. This brings me to, what I consider, the most important aspect of the case, namely, the adequacy of sentence imposed upon the petitioner. As pointed out in the beginning, the trial Court besides imposing sentence of two years R. I imposed sentence of 15 stripes under the Whipping Act. The latter sentence was remitted by the learned Sessions Judge in appeal owing to what he thought to be lacuna in the law. But that view, in my opinion,. proceeds entirely on a misreading of section 4 of the Whipping Act as amended by section 3 of the Whipping (West Pakistan) (Amendment) Ordinance, 1963 (West Pakistan Ordinance 42 of 1963). The Ordinance came into force on the 24th of November 1963. . Prior to that section 4 of the Whipping Act read as follows:‑
"4. Whoever‑
(a) abets, commits or attempts to commit, kidnapping as defined in sections 360 and 361 of the Pakistan Penal Code in respect of any person under the age of ten;
(ab) abets, commits or attempts to commit, kidnapping or abduction as defined in sections 360, 361 and 362 of the Pakistan Penal Code, in respect of any person under the age of ten in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in such danger;
(ac) abets, commits or attempts to commit, kidnapping or abduction as defined in sections 360, 361 and 362 of the Pakistan Penal Code with intent to cause the persons kidnapped or abducted to be secretly or wrongfully confined, where that person is under the age of ten ;
(ad) abets, commits or attempts to commit, the wrongful concealment or confinement of a person under the age of ten, knowing that persons to have been kidnapped or abducted within the meaning of sections 360, 361 and 362 of the Pakistan Penal Code;
(ae) abets, commits or attempts to commit, rape as defined in section 375 of the Pakistan Penal Code;
(b) compels or induces any person by fear of bodily injury, to submit to an unnatural offence as defined in sec tion 377 of the said Code;
(c) voluntarily causes hurt in committing or attempting to commit robbery as defined in section 390 of the said Code; ,
(d) commits dacoity as defined in section 391 of the said Code;
(c) abets, commits or attempts to commit an offence of insult to the modesty of a woman punishable under section 509 of the Pakistan Penal Code
may be punished with whipping in lieu of or in addition to any other punishment to which he may for such offence, abetment or attempt be liable under the said Code."
Section 3 of West Pakistan Ordinance 42 of 1963, which amended section 4 of the Whipping Act on, the other hand reads an follows:‑
"3. Amendment of section 4, Act IV of 1909‑
In section 4 of the said Act‑
(i) clauses (1), (ab), (ac) and (ad) shall be omitted; and
(ii) clause (ae) shall be re‑lettered as clause (a) of the said section."
It is plain from reading the two sections together that clauses (b), (c) and (d) of section 4 of the Whipping Act were left untouched by section 3 of the West Pakistan Ordinance XLII of 1963. The latter provision omitted clauses (a), (ab), (ac) and (ad) from section 4 of the parent Act, and transposed clause (ae) as clause (a) of the section as amended though some of the omitted clauses were simultaneously reinstated as sections 3‑A and 4‑A of the B parent Act. Thus it will be seen that clause (b) of section 4 of the Whipping Act, as ‑ originally enacted, remains intact and could be invoked in a proper case falling under section 377 of the Pakistan Penal Code to impose the punishment of whipping in lieu of or in addition to any other punishment. It is a pity that the Public Prosecutor was not able to assist the learned Sessions Judge in, resolving the confusion arising out of repeated amendments carried out in the parent Act. It is also a matter of regret that even learned counsel for the State appearing in this Court did not address any argument 'on the point .and apparently was satisfied with the view, the learned Sessions Judge had taken in the matter and thought it fit to leave the matter entirely for the Court to examine.
9. This brings me to the next question whether the peculiar circumstances of the case call for enhancement of the punishment imposed upon the petitioner which incidentally he has already undergone and has, therefore, been discharged from jail. Learned counsel for the petitioner pleaded with considerable earnestness that even if the sentence imposed upon the petitioner be held to be inadequate, it may not be enhanced for that would entail his return to jail after his release and that ordinarily the High Courts have shown great reluctance to enhance the sentence of imprison ment after the convict has undergone the sentence imposed by the lower Court. In support of his contention learned counsel cited a number of precedents, though he conceded frankly that those cases merely refer to a general practice and were not intended to lay down an absolute rule to follow. Indeed, Crown v. Jagat Singh (I L R I Lah. 453) and Emperor v. Shahzad (A I R 1928 Lah. 961) the sentences imposed upon the convicts were enhanced after they had undergone the sentence imposed upon them by the lower Courts. In these two cases the principle was clearly asserted that if the sentence in a particular case is manifestly inadequate,. it is competent to the High Court to impose additional punishment even though the convict has served out his sentence. Even the wordings of section 439 of the Criminal Procedure Code do not impose any such limitation as is suggested by the petitioner's learned counsel.
10. The question then is whether the sentence of two years in this case could be described as manifestly inadequate so as to justify enhancement of sentence in the circumstances set out above. There is no getting away from the impression that the petitioner, who was a teacher, took undue advantage of his dominating position and compelled Javed Iqbal, who was his pupil, to submit to the unnatural offence to satisfy the petitioner's animal lust. Indeed, the petitioner behaved worse than a brute. For his lust not being satiated with having once committed unnatural offence with the boy, he tried to repeat his brutal act for the second time when the boy, helpless, as he was, broke down and started crying. There can be no manner of doubt that the petitioner was able to perpetrate this abominable crime upon the boy because the latter was his pupil and, therefore, under his influence. The. injury around the anus of the boy also unmistakably shows that he 'was not a catamite. Therefore, besides suffering the physical injury, he suffered grave indignity and shame among his classmates. This, indeed, heightens the enormity of the crime. Therefore, a sentence of two years' rigorous imprisonment as against the maximum of transportation for life or ten years' imprisonment of either description besides fine, if any, under sect4on 377, P. P. C. is manifestly inadequate amounting to a his carriage of justice. Having given my anxious consideration to the circumstances of the case and with a view to making the sentence a true deterrent so as to serve as a pointer to others with similar evil propensities, I sentence the petitioner to four years' rigorous imprisonment, including. the period he has already undergone, under the judgment of the learned Sessions Judge. I further order that he shall suffer 15 stripes under section 4 (b) of the Whipping Act, I am satisfied from the statement of the boy in the trial Court that he was compelled to submit to the unnatural offence by the petitioner, and, therefore, the provision of the above clause can appro priately be invoked to impose the additional sentence of whipping. The petitioner shall surrender himself to the Additional District Magistrate, Mianwali, to‑ suffer the remainder period of sentence of imprisonment‑ ‑and sentence of whipping hereby imposed.
K. M. A. Sentence enhanced.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer