P L D 1961 (W (PLP)

Maazullah appellant, whose age is recorded to be about 26 years, was convicted of an offence under section 377/511, P. P. C. by the Additional District Magistrate, Charsadda, and was sentenced to five years' rigorous imprisonment by his order dated 26th October 1960. He has appealed from that order.

2. The allegations against the appellant were that Sherzada, a boy of about ten years of age, was cutting grass in a field. The accused caught hold of him there, removed his trousers and also his own, and rubbed his penis against his anus, and got discharged, and left him there. The complainant then proceeded to his house, narrated the incident to his mother, and then both of them went, to the police station and lodged the first information report in which Maazullah was charged for this offence.

3. The doctor, who examined the complainant, found no external injury, or abrasion, or bruise, on the complainant's anus. Only mucous membrance of the surface of the anus was stated to be red and congested, and inside, the anal canal there was a laceration of 1" in degree.

4. The accused denied the commission of this offence and stated that he was charged at the instance of his enemies.

5. As there is no enmity between the complainant and the accused, there is no reason for a false charge, especially, for the accusation of a disgraceful nature, like the one preferred.

6. The only question to consider is whether the offence committed is one under section 377/511, P. P. C. or of wrongful confinement and use of criminal force?

7. It is clear from the medical evidence that there was no penetration of the penis of the accused into the anus of the complainant. It is also clear that there was no attempt to resort to actual penetration. The complainant said: "The accused was rubbing his penis on my anus... but he discharged outside and could not penetrate." If there had been any intention on the part of the accused to effect penetration, there was nothing to prevent him from doing so. It appears that he deliberately abstained from penetration. If a person deliberately abstains from penetra tion, he cannot be said to be guilty of an attempt to penetrate, and if there is no attempt to penetrate, the offence under section 377/511, P. P. C. cannot be made out. 8. "Attempt" has not been defined anywhere in the Pena Code, but to constitute attempt as understood in law, it is necessary that the offender should take every step, and should d all that is necessary to commit the offence attempted, but the offence remains short of commission on account of some interruption from outside, independent of the offender. In this case, if the accused had the intention to effect penetration but penetration, was prevented on account of tender age of the complainant, because it was physically impossible to effect penetration, or it had been prevented by resistence from the complainant or by the arrival of some person on the scene, there would have been no doubt a case of attempt to commit sodomy. But when the offender has no intention to effect penetration and he himself abstains from it, it is he who leaves out a step necessary to constitute the offence. He does not in law attempt it. He, as has been shown by the complainant and the medical evidence, had the intention to seek dis charge by rubbing his male organ against the complainant's anus.

9. The accused in this case can be held guilty of an offence under section 342, P. P. C. for having wrongfully confined the complainant, and also of the offence under section 323, P. P. C. for causing hurt to him. But since he deliberately abstained from proceeding to the stage of penetration he cannot be said to have attempted the offence under section 377, P. P. C.

10. Section 355, P. P. C. also arises for consideration. But since there was no intention to dishonour the complainant by using criminal force upon him, that section would also appear to be out of place. In the use which the accused made of the complainant he intended to get discharged by rubbing his penis against his anus. The conviction of the accused‑appellant is, therefore, reduced from section 377/511 to under section 342 and 323 P. P. C., and on the first count he is sentenced to one year's rigorous imprisonment and on the second as well to one year's rigorous imprisonment. The two sentences shall run concurrently. K.B.A. Sentence modified.