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Criminal Appeal No.163/1 of 1986, decided on 21st October,1986.

‑‑‑S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Ocular evidence, appreciation of‑‑Victim directly charging accused for offence narrating all details of occurrence‑‑Witness supporting victim to extent of seeing him naked on ground and accused seen running away‑‑Accused close relative of complainant party‑‑Nothing on record suggesting complainant party having any grudge, enmity or malice against accused for implication‑‑No good reason given to let off real culprit‑‑Medical evidence corroborating victim‑‑Chemical Examiner finding swabs stained with semen and blood‑‑Ocular account furnished by victim, held, was fully corroborated by testimony of witness, medical evidence and report of Chemical Examiner‑‑Offence under S. 377, P.P.C. was, therefore, proved against accused beyond doubt in circumstances.

Malik Rab Nawaz Noon for Appellant.

Muhammad Aslam Uns for the State.

Date of hearing: 21st October, 1986.

.‑‑Masood Anwar alias Bhattu son of Manzoor Ellahi, resident of Mohallah Kashmirian, Rawalpindi, was tried by the learned Additional Sessions Judge, Rawalpindi in a case registered vide F.I.R. No. 595 Police Station Cantt. Rawalpindi, dated 7‑10‑1985 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 377, P.P.C. on the allegations that on 7‑10‑1985 at 1‑30 p.m. he abducted Muhammad Abid, P.W. aged 10/11 years from the area of Mohallah Kashmirian in order to subject him to unnatural lust and thereafter he committed sodomy upon the said Muhammad Abid in an under construction house situated in the said Mohallah. Vide his judgment, dated 7‑6‑1986, the learned trial Judge found the accused guilty under section 377. P . P. C . and was accordingly convicted thereunder. On conviction he was sentenced to five years' R.I. and a fine of Rs.2,000 and in default of payment of fine he was to undergo further R.I. for six months. However, the accused was acquitted under section 12 of the Ordinance for want of proof.

2. Masood Anwar convict has preferred the present appeal wherein he has questioned his conviction on the said charge on the grounds mentioned in detail in the said appeal.

3. Muhammad Fazil son of Fateh Din P.W.2 lodged a report in the Police Station Cantt., Rawalpindi wherein he contended that on the relevant day at 1‑30 p.m. while his son Muhammad Abid was proceeding to the house of his aunt situated in Mohallah Kashmirian he found the appellant Masood Anwar busy in flying a kite. According to him his son was taken inside an under‑construction house by the appellant on the pretext of giving him the kite but forcibly subjected him to carnal intercourse in that house. It was stated in the said report that Ghulam Muhammad and Pervez Akhtar, P.Ws. were attracted to the spot and they saw the occurrence and meanwhile the accused on seeing the mentioned ‑P.Ws. made good his escape and left the spot.

4. At the trial the prosecution examined nine witnesses to substantiate the charges against the accused.

5. Muhammad Abid (P.W.1) who is victim of this case has deposed that the accused took him inside the house of one Major Bashir on the pretext of giving him the kite but the accused took off his Shalwar and then he removed his own Shalwar and committed sodomy upon him. He narrated that on account of the alarm raised by him Ghulam Muhammad and Pervez Akhtar, P.Ws. came to the spot and on whose arrival the accused ran away from the spot. He stated that the mentioned two witnesses took him to his house where he narrated the facts before his father who lodged the report in the police station.

6. Muhammad Fazil (P.W.2) is father of the victim and complainant of this case. He has reiterated the same facts as given in the F.I.R. Dr. Nasir Mahmood (P.W.3) examined the appellant and found him fit to perform sexual intercourse while Dr. Muhammad Tasheem (P.W.4) examined Muhammad Abid (P.W.1) at 11‑20 p.m. on 7‑10‑1985 and made the following observations:‑

"He was a young troy of average built, Manner of walking was painful. No marks of violence seen on the body. On the Shalwar of the examinee, there were stains of feacal matter which were marked, signed and handed over to the police. Thighs and buttocks were normal. Separation of buttock was painful.

On local Examination:

Anus was dirty. Radial folds were intact. The external sphincter was contractil. No pubic and anal hair were present. There was conical tear at 12 O'clock position inside.

On Proctoscopy:

Anal canal was bleeding with conical tear at 12 O'clock‑ position. There were flecks of faecal matter inside."

In the opinion the Medical Officer, Muhammad Abid was found to have been subjected to unnatural carnal intercourse. The doctor took three anal swabs and the Shalwar of the victim which were sealed in a separate parcel and handed over to the police.

7. Ghulam Muhammad (P.W.8) is the maternal‑uncle of Muhammad Abid (P.W.1). According to him, he alongwith Pervez Akhtar (given up P . W.) were returning to their house at 1‑30 p.m. when they were attracted to the under‑construction house of Major Bashir on hearing the cries of a child. They went inside the house and found the victim without a Shalwar. They also found the appellant present there and on seeing them he ran away from the spot. According to him they took the victim to his house and when Muhammad Fazil (P.W.2) returned home, he was informed of the whole incident.

8. Muhammad Iqbal, A.S.I. (P.W.9) is the Investigating Officer and after the completion of the investigation had submitted complete challan before the Court for trial. The rest of the witnesses are formal whose statements require no discussion.

9. When examined under section 342, Cr.P.C., the accused denied the allegations and stated as under:‑---

"I gave beating to Muhammad .Abid, P.W. on the alleged day of the occurrence when I came to know that Abid, P.W. had allowed some vagabond of the area to commit sodomy with him as Muhammad Abid, P.W. is my cousin. I felt annoyed with him over his misdeed and Muhammad Abid, P.W in order to shield his act named me as the culprit before his parents and thus he took the revenge of the beating which I gave him."

The appellant declined to lead any evidence in his defence and also did not appear as a witness to give statement on oath in his defence.

10. We have heard the learned counsel for the parties and have gone through the record with their assistance.

11. The learned counsel for the appellant contended that since the victim was disbelieved with respect to the charge of kidnapping, no reliance should have been placed on his testimony as far as offence under section 377, P.P.C. is concerned. He contended that the medical evidence in the case is in direct conflict with the ocular account and no corroboration is available to the solitary statement of the victim. He submitted that so far Ghulam Muhammad, P.W., is concerned he is maternal‑uncle of the victim and had not seen the actual act of unnatural offence. He argued that in view of the facts and circumstances available on the record the plea taken by the appellant in his defence appeared more plausible and convincing.

12. While concluding his arguments he submitted that the appellant being a young boy, the sentence awarded by the trial Court is too harsh and severe. He accordingly prayed for leniency in the matter of sentence.

13. As to the offence under section 377, P.P. C. we have evidence comprising of the statement of Muhammad Abid, the victim, that of Ghulam Muhammad (P.W.8) and the medical evidence supported by the Chemical Examiner. Muhammad Abid (P.W.1) who is the victim of this case has directly charged the appellant for committing sodomy upon him. In his statement he has narrated all the details as to how he was, taken to the under‑construction house of Major Bashir and how he was subjected to carnal intercourse. In his statement he has clearly stated that on hearing his alarm Ghulam Muhammad and Pervez Akhtar came to the spot who saw him lying naked on the ground and on seeing them the accused ran away. Ghulam Muhammad (P.W.8) has supported and corroborated the statement of the victim to the extent that on their arrival they saw the victim lying naked on the ground while the accused on seeing them left the spot and ran away. Dr. Muhammad Tasneem (P.W.4) who has examined the victim has clearly stated that the examinee has been subjected to sodomy. The anal swabs and Shalwar of the victim which were sent to the Chemical Examiner were found stained with semen and blood. It was thus, evident that the medical evidence supported by the report of the Chemical Examiner and the testimony of Ghulam Muhammad (P.W.8) provided clear and strong corroboration to the ocular account furnished by the victim, Muhammad Abid.

14. The stand taken by the appellant is of simple denial. He has also raised the plea of substitution. According to him, he has wrongly been charged as the offence in question was committed by someone else. The plea so raised has no substance for the reasons that the appellant is a close relative of the complainant party and his identity could not be doubted. There is nothing on the record to show or suggest that the victim or for that matter his father Muhammad Fazil (P.W.2) had any grudge, enmity or malice to falsely implicate the appellant. As such the question of substitution in the instant case has no relevancy in the circumstances stated above. No good grounds or valid reasons have been advanced by the appellant to show that the complainant party would allow the real culprit to go scot‑free and involve an innocent person who is not a stranger but the cousin of the victim.

15. For reasons stated above, we are, therefore, of the view that the prosecution case so far the offence under section 377, P.P.C. is concerned stand proved against the appellant beyond doubt and the learned trial Court has rightly and for good reasons convicted him thereunder.

16. Keeping, however, the very young age of the appellant in view, we feel that there is some force in the' request of the learned counsel for showing leniency in the matter of sentence. We feel that in the given circumstances the substantive sentence awarded is a bit severe. We accordingly reduce the sentence of imprisonment of the appellant from 5 years to 2 years.' The sentence of fine shall, however, remain intact.

17. With the above modification in the sentence, we maintain the conviction of the appellant. The appeal is disposed of accordingly.

S.A. Appeal dismissed.

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