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Criminal Revision No. 92 of 1974/BWP, decided on Ist February, 1974.

-- S. 377 - Sodomy - Child witness, examination of - Evidence, appreciation of-Victim of sodomy, a young boy about 415 years old, only eye-witness of occurrence - Trial Magistrate, however, failed to satisfy himself by putting questions to such child witness whether he realized sanctity of oath-Conviction and sentence set aside and re-trial ordered in circumstance.-[ Witness).

M. A. Farani for Petitioner.

Zaka Farooq for the State.

Date of hearing: 1^st February, 1974.

This revision petition has been filed on behalf of Khalid petitioner who was convicted by the learned Assistant Commissioner-cum-Magistrate Section 30, Bahawalpur, under section 377 and sentenced to 3 years' R. I. and a fine of Rs. 500 ordering that in the default of payment the petitioner would undergo R. I. for six months more. The petitioner challenged the order of conviction and sentence before the learned Sessions Judge, Bahawalpur, but the appeal was rejected.

2. The facts of the case stated briefly are that the petitioner took Muhammad Yousuf victim aged 4 or 5 years to the roof of his house on the pretext that he would give him sweetmeats (ladoo) and thereafter removed his katchha and committed sodomy with him. When Muhammad Yousuf was coming down staircase Zahoor Ahmad, Fateh Muhammad and Mst. Hajran saw him who were attracted by his cries. The victim was medically examined and the doctor found marks of violence in the shape of bruises outside and inside the anus. The anal canal was found highly congested and started bleeding on touch. The anal sphincter had two tears. He pointed that the injury was caused by thrusting in some hard object within 24 hours. The statement of Muhammad Yousif P. W. is the same as discussed in the facts of the case. Zahoor Ahmad P. W. 1, Fateh Muhammad P. W. 2 and Mst. Hajran P. W. 3 stated that they were attract ed by the cries of Muhammad Yousuf and saw the petitioner running away from his house and Muhammad Yousuf coming down from the staircase carrying his katchha in his hands. Shabbir Ahmad P. W. 5, stated that at 11 a. m. he was going to the Bazzar from his shop and met in the way, Mst. Shajda, Muhammad Yousuf and Fateh Muhammad who told him about the occurrence.

3. Learned counsel for the petitioner has argued that there are material discrepancies in the statements of the witnesses which show that the occurrence was not seen by the witnesses. He has also stated that Muhammad Yousif cannot realise the sanctity of oath, therefore, his state ment cannot be believed. He has also stated that witnesses of such tender age can be taught false stories and they repeat them like parrots. He has lastly argued that on account of enmity the petitioner was falsely implica ted. The age of Muhammad Yousif is given 4 or 5 years. He is a boy of tender age but the learned Magistrate did not put him any question to find out if he has any sense of sanctity of oath or not. It is necessary that children of this tender age must be put question to satisfy if they have sanctity of oath before their evidence can be believed. In the present case, Muhammad Yousif is the only eye-witness of the occurrence as other witnesses stated only this much that they saw the petitioner running away and Muhammad Yousif P. W. coming down from the staircase weeping and carrying his katchha in his hand and that he told them that the peti tioner had committed sodomy with him.

4. For the reasons given above, the revision petition is accepted. The conviction and the sentence are set aside and the case is remanded wit:, the direction that Muhammad Yousif P. W. be re-examined by the learnea Magistrate after satisfying himself by putting questions if he realises the sanctity of oath. If the learned Magistrate after examining Muhammac Yousif comes to the conclusion that prima facie case has been made out he should re-frame the charge and record the statement of the petitioner under section 342, Cr. P. C. and after giving him opportunity to produce defence will re-decide the case. The petitioner is admitted to bail in the sum of Rs. 2,000 with one surety in the like amount to the satisfaction o: the trial Magistrate.

S. G. D. Case remanded.

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