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Criminal Revision No. 210 and Criminal Miscellaneous Nos. 1 and 2 of 1979, decided on 21st March, 1979.

-- S. 439-Revision-Conviction under S. 377, P. P. C. challenged on ground that (i) no strong independent corroboration sought for by trial Court; (ii) trial Court did not put any question for ascertaining capability of witness for making a truthful statement-Medical evidence, however; showing injuries around anus of complainant and testimony of victim alone, in absence of background o: enmity sufficient to record conviction-Judgment of trial Court, found based on quits sound reasonings -Petitioner, held, rightly convicted its circumstances.

--- Sentence-Mitigation-Accused aged 22 years, not a previous convict, but a case of juvenile exuberance, found committing sodomy with complainant, and awarded sentence of three years' R. I.-Accused a first offender and of impressionable age, his going astray by remaining for a long period in Jail in company of hardened criminals, not ruled out-Sentence under S. 377, P. P. C. altered to one already undergone, in circumstances--Penal Code (XINV of 1860), S. 377.-[Sentence].

M. M. Ashraf for Petitioner.

The petitioner who is aged about 22 years has been convicted by the trial Court vide orders dated the 12th June, 1976 on the charge of sodomy. He has been sentenced to 3 years' R. I. and a fine of Rs. 1,000, in default whereof he has been directed to undergo 6 months' further R. I.

2. The case for the prosecution briefly stated is that on the night between 25th and 26th May, 1976 the complainant Mumtaz who is aged about 11/12 years was asleep outside his house when the petitioner entered the havaili, placed his hand on the mouth of the complainant and took off his shalwar and started committing unnatural offence with him. On the raising of the alarm his maternal grandfather Ahmad Yar and one Muhammad Hussain came to the spot.

3. The appeal was dismissed by the learned Sessions Judge and there is a concurrent finding of fact against the petitioner. The version of Mumtaz complainant who appeared as P. W. 1 and that of Ahmad Yar grandfather' of the complainant has been believed.

4. Since an allegation of this nature involves w question of prestige, such allegations are not normally made falsely. The petitioner had to lead strong evidence to substantiate his plea of false implication. He has led no evidence in this regard. Prima facie there appears to be no reason for his substitution. I attach no importance to the submission that strong independent corroboration should have been sought by the learned lower Courts, In my humble opinion, in such case, the testimony of the victim alone, in the absence of any background of enmity, is sufficient for recording a conviction.

Since the offence of sodomy, in law is considered accomplished by an act of penetration, I do not consider of any consequence the submission of the learned counsel that the swabs were not found to be stained with semen, suffice it to say that the medical evidence disclosed injuries around the anus, and such injuries are consistent with the allegation of sodomy.

Learned counsel has further argued that as required by the Evidence Act, the trial Court did not put any questions for ascertaining the capability of the witness for making a truthful statement. The defence has not challenged it during the trial nor had this point been raised before the appellate Court. I find no merit in this submission too.

In this view of the matter, I am, therefore, of the opinion that both the lower Courts have based the conviction of the petitioner under section 377 of Pakistan Penal Code on good evidence and this conviction does not call for interference.

5. However, the question of sentence requires some consideration. I have called upon the learned Advocate-General for assistance in this regard. After hearing the learned counsel for the parties, I am of the opinion that M view of the fact that the petitioner is aged only 22 years and is not a previous convict, I will provide him another chance for leading the life of a law-abiding citizen. This may be a case of juvenile exuberance. Since he is a firs offender and is of impressionable age, there is every risk of his going astray by remaining for a long period in Jail in the company of hardened criminals " Such an eventuality will not be expedient either in the interest of justice, or in the interest of the society as a whole. I therefore, maintaining his conviction under section 377, P. P. C. alter his sentence to one of already undergone. In addition to the above sentence his fine of Rs. 1,000, is raised to a fine of Rs. 5,000, in case of default of payment of fine he will undergo rigorous imprisonment for a period of two years. The fine, if realised, will be paid as compensation to the victim.

Appeal allowed.

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