P L D 1959 (W (PLP)

Wali Muhammad was tried by Mr. Inayat Maula Qureshi, Magistrate 1 st Class, Dera Ghazi Khan, under section 377 of the Pakistan Penal Code. The allegation against him was that on the 1st of November 1958, at Dera Ghazi Khan, he had committed carnal intercourse against the order of nature with a boy, Parvez Akhtar, aged five years. The learned Magistrate convicted him and ordered that he be given ten stripes in the District Jail, Dera Ghazi Khan. The learned Magistrate did not award a sentence of imprisonment, for the reasons which appear from the following passage occurring in his judgment :‑ "The art of the accused is heinous butt considering his tender age I am not inclined to send him to jail lest he should be spoiled and become a hardened criminal for all his life. I, therefore, order that he should be awarded 10 lashes of whipping in the District Jail, D. G. Khan." The. learned District Magistrate, Dera Ghazi Khan, has forwarded this case under section 4 38 of the Code of Criminal Procedure with the recommendation that the sentence of ten lashes is grossly inadequate and that a sentence of imprisonment be imposed upon the accused‑respondent.

2. The prosecution story is that on the 1st of November 1958, Haji Muhammad (P. W. 2), a clerk in the office of the Deputy Commissioner, Dera Ghazi Khan, was going home from his office. When he passed by the shop of Wali Muhammad accused‑respondent, he heard shrieks coming from the shop of the respondent. Haji Muhammad P. W., went into the shop and found the respondent having carnal intercourse against the order of nature with Parvez Akhtar, aged five years. On seeing the witness, Wali Muhammad respondent ran away taking his loin cloth with him. Haji Muhammad heard Parvez Akhtar screeming and observed that he was bleeding profusely from his anus. Haji Muhammad came out of the shop and sent a word to Khuda Bakhsh (P. W. 3), father of the boy. Khuda Bakhsh went to Wali Muhammad's shop and took his son Parvez Akhtar to the police station and lodged the report Ex. P. C.

3. Doctor Safdar Ali, Medical Officer, Dera Ghazi Khan (P. W. 1) examined Parvez Akhtar on the 1st of November 1958, at 5‑30 p.m. As a result of his examination, he found that Parvez Akhtar had been subjected to carnal intercourse against the order of nature.

4. The same doctor examined Wali Muhammad on the same day, and gave it as his opinion that Wali Muhammad was capable of performing sexual intercourse.

5. Wali Muhammad respondent merely denied the prosecu tion allegations against him. He examined Barkhurdar (D. W. 1), Muhammad Baksh (D. W. 2) and Ilahi Bakhsh (D. W. 3) in his defence. Burkhurdar D. W. stated that to the best of his knowledge, Wali Muhammad had not committed sodomy on Parvez Akhtar. Muhammad Bakhsh D. W. who runs a shop in Block No. 22, stated that Wali Muhammad did not have any carnal intercourse with Parvez Akhtar. Ilahi Bakhsh D. W., also made a similar statement. The learned Magistrate has rightly rejected this evidence.

6. Nothing can be urged against Haji Muhammad (P. W. 2), the eyewitness of the occurrence. He is a disinterested person who holds a responsible post in the office of the Deputy Commissioner. There is nothing on the record to indicate that he has a motive to implicate the accused in a false case. Mian Hamid‑ud‑Din, the learned counsel for the accused, was unable to show why the evidence of Haji Muhammad P. W., be not accepted. The evidence of Haji Muhammad and the medical evidence conclusively estab lish the charge against the accused‑respondent.

7. The accused‑respondent is eighteen years of age. Relying on Crown v. Abdul Hayee a and M. K. Saigol (Criminal Revision No. 410 of 1955), the learned counsel urged that the sentence be not enhanced. According to the learned counsel, if the accused‑respondent is sent to jail he is bound to become as hardened criminal on account of his association with the other prisoners in the jail. Sodomy is one of those offences for which there can hardly be any extenuating circumstance ; and even if such circumstances did exist, they would not justify an over‑lenient sentence. In Emperor v. Shera (A I R 1936 Lah. 256), Agha Haider J. observed :‑ "I have expressed the opinion in my judgments, on more than one occasion that cases of rape and unnatural vice should, as far as possible, be tried by Magistrate with section 30 powers, so that if circumstances call for a heavy sentence, then the same may be given up to the outside limit of seven years." This is by means a solitary example. Similar pronounce ments have been made by the learned Judges of this Court from time to time. This Court has always insisted on deterrent sentence in cases under section 377 of the Penal Code. The learned Magistrate, who seems to have queer ideas about the magnitude of punishment which this particular form of crime merits, and also about his own duties as a Magistrate, has in the present case imposed a ridiculously light sentence. It is to be noted that in Emperor v. Shera the accused had been sentenced to six months' regorous imprisonment, yet on a reference by the District Magis trate, Agha Haider J. considered it necessary to enhance the sentence to two years' rigorous imprisonment with thirty stripes. In Crown v. Abdul Hayee and M. K. Saigol, the case relied upon by Mian Hamid‑ud‑Din, the accused‑respondents had been sentenced to imprisonment till the rising of the Court and a fine of Rs. 5,000 each. On a reference by the learned Sessions Judge, Muhammad Yaqub Ali J. did not enhance the sentence. The reason given by the learned Judge for not enhancing the sentence in that case would appear from the following passage occurring in his judgment :‑ "Besides, there are some other considerations relevant to the question of sentence which have come into existence after the trial ended in the Court of the District Magistrate, Khalid Saigol has since then joined a public school in Manchester (United Kingdom) and Abdul Hayee has performed a pilgrimage to Mecca. This may mean a turning point in the careers of these boys and no useful purpose will be served if two years and four months after the occurrence they are now sentenced to imprison ment. Such a course is bound to turn them into confirmed criminals because of their association with the other inmates of the jail. It would have been a different case altogether if the trial Magistrate had sentenced 'the respondents to certain terms of imprisonment and a prayer was made to this Court for reduction of their sentences. Speaking for myself, I would not have interfered in such a case, but to do so now, after the verdict of the trial Court has gone in favour of the accused, gives rise to different considerations". With all respect to my learned brother, I cannot subscribe to this view. The reason that a young lad of 16 or 17 years would become a hardened criminal if he is sent to jail is not a good ground for not awarding a sentence of imprisonment. For improving the "character of the juvenile offenders, the State is running a Borstal Institution and Juvenile Jail. The main idea of detaining juveniles in this Institution is to save them from undesirables contacts with the hardened criminals and to improve their outlook on life and mould them into law‑abiding, disciplined and useful citizens of the State. The mere fact that a youth would become a hardened criminal if sent to jail has seldom been recognised as a good ground for withholding punishment of imprisonment in cases under section 377 of the Penal Code. Any leniency in the awarding C of the sentence might prove disastrous and might encourage this particular kind of vice amongst the idle or evil‑minded sons of the rich who could afford to pay a heavy fine.

8. In the present case, while making the statement under section 342 of the Code of Criminal Procedure, the accused -respondent stated that he was eighteen years old. It cannot be denied that the sentence awarded by the learned trial Magistrate is grossly inadequate. I, therefore, sentence the accused‑respondent to five years' rigorous imprisonment. I also maintain the original sentence of ten stripes awarded by the trial Magistrate. I am not bound to limit the sentence to two years' rigorous imprisonment merely because the accused‑respondent in this case was tried and sentenced by a First Class Magistrate. In Muhammad Munir v. The State (P L D 1957 S C (Pak.) 143) their Lordships of the Supreme Court held "there is no warrant in the Criminal Procedure Code for the rule that where an accused person has been tried by a Court, the appellate or revisional Court cannot inflict on him a sentence in excess of the powers of the Court that tried him. The Supreme Court of India took the same view of the law in Sarjug Rai and others v. State of Bihar (P L D 1958 S C (Ind.) 333).

9. Before concluding the judgment, I consider it my duty to draw the attention of the Law Secretary to the observations of Agha Haider J. in Emperor v. Shera referred to above. The present case was tried by Mr. Inayat Maula Qureshi, 1st Class Magistrate. The Prosecuting Agency were extremely negligent in not putting in the challan in the Court of a Section 30 Magistrate. The Law Secretary will take necessary steps to ensure the avoid ance of such a mistake. K. B. A./A. H. Sentence enhanced.