2005 P Cr (PLP)

The appellant has been convicted by Additional Sessions Judge, Chakwal, under section 377, P.P.C. He has been sentenced to ten years' rigorous imprisonment, with a fine of Rs.25,

000. Benefit of section 382‑B, Cr.P.C. has been given.

2. The case was initiated through an F.I.R. lodged at Saddar Police Station Chakwal by Muhammad Shahzad reporting that his nephew Muhammad Faizan, aged about 8/9 years, was kidnapped by the present appellant and was subjected to sodomy.

3. The trial Court framed a charge against the appellant for commission of an offence under section 377, P.P.C. and section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. To prove this charge, the prosecution examined eight witnesses, before the trial Court, which include two Medical Officers, the complainant, the alleged victim and four police officials.

4. In his statement under section 342, Cr.P.C., the appellant/accused denied the charges and stated that he was involved falsely. The trial Court found that case under section 12, Office of Zina (Enforcement of Hudood) Ordinance, 1979 was not made out by the evidence placed on record. However, it was found that an offence punishable under section 377, P.P.C. was committed.

5. This appeal was sent by the appellant from jail and Mr. Muhammad Shoaib Abbasi, Advocate, was assigned the task of representing the appellant. Mr. Shoaib Abbasi does not dispute the verdict but prays for reduction in sentence in view of the young age of the appellant and the fact that he has no past criminal record. Mr. Nadeem Mukhtar Chaudhry, learned State Counsel concedes to the proposal relating to reduction of the sentence.

6. However, it is the duty of the Court to see whether the verdict is the natural and logical outcome of the evidence placed on record. The main evidence about commission of sodomy, placed on record, comprises the statement of the alleged victim Muhammad Faizan and the medical evidence comprising the statement of Dr. Sajjad Hameed, who had medically examined the alleged victim.

7. The Medical Officer stated before the trial Court, that he found no tear marks, no semen on the clothes, no bruises or any other mark of violence on the body of the victim. He was unable to give a definite positive opinion on the basis of his examination and he postponed his opinion to the report of the Chemical Examiner When he received the Chemical Examiner's report, according to which swabs were stained with semen, he gave a positive opinion about the commission of sodomy.

8. The Chemical Examiner's report was admitted to evidence under 'section 510, Cr.P.C. but the Chemical Examiner was not summoned to clarify as to how he found semen on the swabs while the Medical Officer could not find any positive indication about it. Section 510, Cr.P.C. makes a Chemical Examiner's report admissible in evidence without calling the Chemical Examiner before the trial Court to produce it, but this provision does not mean that a Chemical Examiner's report is to be accepted as gospel truth.

9. In the circumstances of this case, and in view of medical evidence, the Chemical Examiner's report was doubtful, but the prosecution did not care to make a clarification through the Chemical Examiner, who conducted chemical test to find out semen on the swabs. However, the victim boy has narrated the story of the offence and an attempt of sodomy by the present appellant. The accused appellant stated that he was involved falsely, but he did not explain, the reason of his alleged false implication, on oath under section 340(2), Cr.P.C. He has also produced no evidence to support his plea.

10. In these circumstances of the case, the evidence placed on record proved that an attempt of sodomy was committed by the appellant upon the victim boy. A charge of commission of sodomy, as complete offence was not proved by this evidence. It was a case of an attempt and, therefore, the conviction and sentence awarded by the trial Court is set aside. The appellant is convicted under section 377, read with section A 511, P.P.C. Since the appellant/convict is a young man, aged about 24 years, and there is nothing on record to show that he has a past criminal record, a lenient view would be justifiable. Accordingly, he is sentenced to one year's rigorous imprisonment, with a fine of Rs.5,

000. In case of default in payment of fine, he shall undergo rigorous imprisonment for three months more. Benefit of section 382‑B; Cr.P.C. shall be available to him. The appeal stands allowed to the extent of this modification. H.B.T./82/FSC Appeal allowed accordingly.