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Criminal Appeal No. 143/1 of 1984, decided on 4th December, 1984.

---Ss. 12 & 18--Penal Code (XLV of 1860), S. 377/511--Sodomy--Victim alleging commission of sodomy with him by accused--No mark of laceration found on anus and according to opinion of doctor victim had not been exposed to any sexual assault--Allegation of sodomy committed by accused totally belied by medical evidence--Three witnesses who allegedly arrived on scene of occurrence closely related to victim--Presence of said eye-witnesses at place of occurrence, a deserted place, not found to be natural--No mark of injury found on body of victim who was a boy of twelve years of age and a student of seventh class--Element of kidnapping and abduction within meaning of S. 12 of Ordinance VII of 1979 found to be absent--Appropriate offence committed, held, was under S. 377/511, P.P.C.--Conviction and sentence under S. 12 of Ordinance VII of 1979 set aside and conviction converted to one under S. 377/511, P.P.C. in circumstances.

---S. 377/511--Sentence--Quantum of--Accused 55 years of age and having grand children--Accused spending more than seven months as under trial prisoner and remaining in jail for twenty days after conviction--Sentence already undergone by accused, held, would meet ends of justice--[Age-Sentence].

M. Bilal for Appellant.

Khawaja Nazir Ahmad, Asstt. A.-G., N.-W.F.P. for the State.

Date of hearing: 4th December, 1984.

Muhammad Ayub aged 55 years was put in the dock to face trial under section 12/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was tried by the Additional Sessions Judge, Abbottabad, who on conclusion convicted the accused under the offence charged and sentenced him to four years R.I. and a fine of Rs. 5,000 or in default to suffer further six months S.I. The period spent under trial was ordered to be deducted from the. period of sentence, Muhammad Ayub convict has assailed his conviction and sentence by filing an appeal to this Court.

2. Succinctly stated the facts that can be gleaned from the evidence on record are that Muhammad Tahir aged about 12 years resident of Dobathar on 2-2-1984 at about 4-00 p.m. after attending a tuition class at Kamran School Abbottabad proceeded for his village. Near the Tenchi Chowk Abbottabad he met Muhammed Ayub accused who was boarding on hire passengers in his Suzuki No. 2543-ABA. Muhammad Tahir occupied the front seat of the Suzuki and the Suzuki driven by Muhammad Aryub left for the village Boiui Gali. On reaching there all the passengers alighted from the Suzuki. Muhammad Tahir also wanted to alight from the Suzuki but the accused Muhammad Ayub suggested to him to have an outing to which the latter agreed. Both of them by means of Suzuki proceeded onwards and the Suzuki was parked at a secluded place. Both proceeded on foot ahead at some distance when Muhammad Ayub caught hold of Muhammad Tahir and took off Muhammad Tahir's trousers. The accused threatened Muhammad Tahir not to raise alarm. Otherwise he would be put to death. Muhammad Tahir was laid on the ground and the accused started committing carnal intercourse with him. The complainant raised hue and cries due to pain which attracted Abid P.W. By that time Muhammad Ayub had satisfied himself, but both had not put on the trousers. Abid P.W. caught hold of accused. Both the accused and the boy later put on their trousers. In the meantime Nazir and Muhammad Bashir P.Ws. also arrived there. Muhammad Ayub tried to make good his escape but he was apprehended by Nazir, Abid and Bashir P.Ws. During grappling with the P.Ws. the accused sustained few abrasions, The accused and Muhammad Tahir complainant and the P.Ws. by means of Suzuki driven by Muhammad Bashir P.W, went to the Police Station Mirpur where Muhammad Tahir lodged the report. It was recorded by Muhammad Riaz, A.S.I. The injury statements of the complainant as well as of the accused were prepared and they were sent to the hospital for medical examination. Doctor Muhammad Salim (P.W.5) examined Muhammad Ayub accused on 2-2-1984 and his findings were as under :-

"(1) I found the said Muhammad Ayub capable of committing sexual intercourse and there was nothing to suggest that he was incapable to commit any sexual intercourse His age in my opinion is about 50 years.

(2) No stains of semen were found on penis scrotum, and legs.

(3) Seminal stains on Shalwar and Shalwar handed over to police.

(4) No scratches on his knees.

(5) Scratch present on the back of the left leg (popleteal fossae).

(6) Sallomand tender left mandible.

(7) Swabs were taken from the pubic scrotum and urethra to confirm the absence or presence of sperm. My reports in this behalf are Exh. P.W.5/1 and on Exh. P.W.5/2 respectively."

On the same day he examined Muhammad Tahir the victim and observed the following:

"(1) No scratches on the buttocks and anus.

(2) No semenal stain on his Shalwar or body.

(3) No scratches on his knees.

(4) No mark of laceration on anus, and in my opinion he is not exposed to any sexual assault.

(5) Bleeding from nose but stopped at the time of examination."

3. At the trial Muhammad Tahir the victim furnished direct evidence of the delict and stuck to the allegation that the accused had committed sodomy, with him which is totally belied by the medical evidence. The three persons mentioned in the F.I.R who arrived on the scene of the occurrence namely, Abed (P.W.4), Muhammad Bashir (P.W 6) and Nazir the abandoned P.W. are closely related with Muhammad Tahir. The three of them and Muhammad Ayub accused used to drive Suzuki on hire. The scene of occurrence is deserted place as indicated by the site plan. One wonders how and why all the three persons were present in the vicinity to immediately arrive at the scene of the crime. No mark of injury was found on the body of the victim who is a boy of 12 years of age and a student of seventh class. Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 makes kidnapping or abduction of a person who may be subjected to unnatural lust as an offence. In the present case element of kidnapping and abduction is absent. According to the victim he and the accused were only five paces away from the Suzuki for enjoying the nature when an attempt to commit sodomy was made.

4. On these facts and circumstances the appropriate offence committed was one under section 377 read with section 511, P.P.C.

5. Accordingly the conviction and sentence of Muhammad Ayub appellant under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is set aside. lie is convicted under section 377 read with section 511, P.P.C. He was arrested on 2-2-1984 and throughout had remained as under trial prisoner whereafter he was convicted on 5-9-1984. He was released on bail by this Court on 25-9-1984.

6 Taking into consideration the age of the accused who has grand-children and the period spent by him as under trial prisoner, the sentence already undergone would meet the ends of justice. It is ordered accordingly. With the above modification in the offence and the sentence the appeal is dismissed.

S.A.

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