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Criminal Appeal No.38-L of 1987, decided on 2nd June, 1987.

--S.377--Evidence, appreciation of--Victim of sodomy consistently deposing against accused and medical evidence also supporting allegation that he was subjected to unnatural offence--Complainant and the prosecution witness having no enmity to implicate accused nor having any reason to substitute accused for real culprit--Conviction maintained, in circumstances.

---S.377--Sentence, reduction in--Accused, a young man of 21 years of age and a first offender--Sentence of 7 years' R.I. reduced to 5 years, in circumstances. [Sentence--Age].

Hasnat Ahmad Khan for Appellant.

Jalal Uddin Khalid for the State.

Abdur Rashid Tariq for the complainant.

Date of hearing: 2nd June, 1987.

--Badar Din son of Naseer Din, resident of Khanewal City, has challenged the judgment and order, dated 7-12-1986, passed by the; Sessions Judge, Khanewal, convicting him under section 377 PPC and sentencing him to undergo rigorous imprisonment for seven years, to a fine of Rs.1,000 or in default of its payment to further suffer rigorous imprisonment for six months and to pay compensation of Rs.1,000 to Shahid Numan, complainant, under Section 544-A, Cr.P.C. He was given benefit under Section 382-B, Cr.P.C. This judgment will dispose of his appeal.

2. On 15-10-1985 at about 11.00 p. m. Shahid Numan, aged about 16 years, resident of Khanewal City was standing near Octroi Post, Changer Mohallah, when the appellant approached him and asked him that he was wanted by his brother, Muhammad Iqbal, near the Railway Line on which Shahid Numan went with him towards the Railway Line. On arrival there the appellant pulled out a knife and after threatening him with dire consequences by placing the knife on his chest asked him to submit to unnatural offence. Consequently Shahid Numan kept quiet and appellant after opening his shalwar and throwing him on the ground committed unnatural' offence with him. Shahid Numan felt pain and raised alarm which attracted P.W., Muhammad Saeed and Ali Ahmad who witnessed the occurrence. The appellant escaped. Shahid Numan reported the matter to the police on which formal first information report was registered at Police Station Khanewal City, on 16-10-1985 at 0012 hours. During investigation, Zia Ullah, PW, Sub-Inspector, arrested the appellant on 18-10-1985 from Railway Chowk, Khanewal and took into possession Knife P-1 from his right pocket of shirt. He completed investigation and challaned the appellant in Court.

3. Dr. Muhammad Arshad, Senior Medical Officer, District Headquarter Hospital, Khanewal, medically examined the appellant, aged 21 years and found him capable of performing sexual intercourse.

4. Dr. Muhammad Idrees, Medical Officer, District Headquarter Hospital, Khanewal, medically examined Shahid Numan, aged 16 years, on 16-10-1985 and recorded the following observations:-

There were triangular lacerations having base 1 cm x cm at 1.00 o'clock, at 7.00 o'clock positions and mild triangular laceration also present at 12.00 o'clock position in the anus. Anal swabs were taken which were blood stained.

External sphinctor was reddened.

I also observed an abrasion 1 cm x 1/3 cm on the left side of the neck in the middle area.

He was of the opinion that penetration had been done in this case. The report Ex-PA, of Chemical Examiner showed that the anal swabs were stained with semen.

5. At the trial, prosecution examined nine witnesses while Muhammad Iqbal, Foot Constable, was examined as a court-witness. Shahid Numan (P.W.4). victim, narrated the facts stated by him in the first information report. He deposed that it was the appellant who took him from the Octroi Post to Railway Line and forcibly committed unnatural offence with him. Muhammad Saeed (P.W.5), his Phuphizad, corroborated him and deposed that on being attracted he saw the appellant subjecting Shahid Numan to unnatural offence by force. Muhammad Iqbal, C.W., Foot Constable, deposed that he brought the parcel of anal swabs from the doctor and delivered it to Muhammad Sharif, Moharrir Head Constable and the latter deposed that he kept it in safe custody in the Malkhana. Muhammad Yar (P.W.7) Foot Constable, took the parcel and delivered it in the office of Chemical Examiner. Rana Taj Ali (P.W.9), Inspector, registered the first information report. Zia Ullah (P.W.8) conducted investigation and challaned the appellant. Dr. Muhammad Idrees (P.W.1) and Dr. Muhammad Arshad (P.W.2) proved their medico-legal reports. The positive report of Chemical Examiner was tendered in evidence.

6. The appellant pleaded not guilty to the charge. He denied the recovery of knife from him. He stated that was a fruit vendur. 10/15 days before the present occurrence he had an altercation with Shahid Numan, P.W., who owed him Rs.52 as price of the fruit purchased from him. He again demanded this money on the day of occurrence on which Shahid Numan fell out with him and gave him a beating and the appellant was implicated. According to the appellant all the prosecution witnesses were related to Shahid Numan. The appellant did not appear as his own witness nor did he lead any evidence in his defence.

7. We were taken through the evidence in this case which has been perused and considered by us. It was submitted on behalf of the appellant that the occurrence was unwitnessed. It was argued that Muhammad Saeed was only a chance witness. The perusal of evidence showed that Shahid Numan consistently deposed against the appellant. The medical evidence supported the allegation that he was subjected to unnatural offence. The lengthy cross-examination of Shahid Numan did not shake his credibility. There is no material on record that Shahid Numan substituted the appellant for the real culprit. It is established principle of law that substitution is a rear phenomenon. The testimony of Shahid Numan is confidence inspiring. He had no enmity to implicate the appellant. Muhammad Saeed, P.W. had also no enmity or ill-will against the appellant so as to falsely involve him on the charge of this nature. There was no reason for him to prejure. There is nothing to disagree with the findings of the trial Court convicting the appellant. We find that prosecution proved its case beyond any shadow of doubt.

8. The learned counsel for the appellant contended that Shahid Numan was a consenting party otherwise he was not expected to accompany the appellant at odd hours of 11.00 p. m. It was also argued that sentence awarded to the appellant is excessive. It was submitted that appellant is a young man, of 21 years of age and is a first offender. In the circumstance of present case we consider it fit to reduce substantive sentence of the appellant and to set aside compensation.

9. For the above reasons, the conviction of appellant is upheld but his substantive sentence is reduced to rigorous imprisonment for five years and his sentence of fine is maintained but the compensation amount of Rs.1,000 under Section 544-A, Cr.P.C. is set aside. He shall get benefit under Section 382-B, Cr.P.C. With this modification his appeal is dismissed:

S.G.D./356/F.Sh

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