1986 PLP 2547 (MLD)

Abdus Salam Chughtai for Appellant. Shah Nawaz Khan for the State. Date of hearing: 3rd February, 1986. Younus (15) was tried for committing sodomy on his co‑villager Muhammad Yunus. On 3‑9‑1985 Mr. Meher Ahmad Raza, Additional Sessions Judge. Bhakkar, convicted him under section 377, ,P.P.C. and sentenced him to eight years' R.I. with a fine of Rs.5,000 in default to undergo two years' R.I. further, Out of the fine, if realised, Rs.3,000 were ordered to be paid as compensation to the victim. Convict's appeal is before me.

2. On 24‑5‑1983 at about 2 p.m. the appellant on a false pretext took Muhammad Yunus from the hotel of his father to the garden of one Makhdoom Muhammad Aslam. On reaching there, he broke the string of Yunus's Shalwar and after undressing him, he lay him on the ground and committed sodomy with him. The cries of the boy attracted his father P.W. Bashir who reached the spot with Khushi Muhammad P.W. (given up as unnecessary). On seeing the informant's father, appellant pulled up his Shalwar and made good his escape. The matter was reported to P.W.4 Shah Nawaz, H.C. Police Station Bhakkar who met them near the level crossing. P.W. Muhammad Yunus made statement Exh.P. A. to him at about 6‑35 p. m. the same day on the basis of which formal F.I.R. Exh.P.A/1 was registered at Police Station Bhakkar. The victim was medically examined by P.W.6 Dr. Rafiullah, S.M.O., Civil Hospital, Bhakkar. In his opinion, Muhammad Yunus had been subjected to sodomy. The doctor formed his opinion on the basis of the report of the Chemical Examiner he found semens on the swabs and exhibits sent to him. After completing the investigation, the accused was sent up for trial.

3. In his examination at the trial, Muhammad Younus denied guilt and ascribed the case to enmity with P.W. Bashir. According to him, in the morning he had gone to the house of Bashir to demand the money which they owed but they did not pay him the money instead he was abused by the members of his family and in the same day; a false case was put up against him. In support of his defence, D.W.1 Ghulam Muhammad, Junior Clerk, Office of the D.H.O. Bhakkar was produced to prove the age of the victim which had been noted down in the certificate issued by the D . H . O. to be between 14/ 15 years of age.

4. I have considered the submissions. There is nothing on the record to show any enmity between the father of the victim and the accused. In his statement under section 342, Cr.P.C. for the firs time, he came out with the story of the loan which was never suggested to either the victim or his father at the trial. It, therefore, appears to be an afterthought. Through the defence evidence, the appellant tried to prove that the victim was not a young boy of 12 years of age but was about of his age. Even if that be so, I failed to appreciate how it would help him. The evidence of the victim is fully corroborated b the statement of his father. They have no previous enmity, ill‑wile against the appellant or any member of his family. I have no reason to disbelieve their evidence. The place of occurrence as admitted by the investigating officer under cross‑examination to be secluded one S.I. was not visible from the Bangalow of Makhdoom Aslam. It was on the cries of the boy that his father and his uncle Khushi Muhammad reached him. The case is overwhelming against the appellant. I am satisfied with the prosecution evidence. I, therefore, do not see any force in the appeal. His conviction is maintained. As to sentence the appellant was 15 years of age at the time of the commission of the crime. In view of his age, I am of the opinion that the sentence already undergone by him would meet the ends of justice. The convict remained in custody during trial for a period of 21 months and was not allowed bail pending appeal. In all the period would come to a few days less than eight months. It is contended that appellant's father is a poor man, runs a Khokha and finds it difficult to support his family. The fact that the appellant has no means of livelihood and is young boy of 15 years dependent upon his father. I reduce his sentence of fine to Rs.200 in default to undergo one month R.I. The appellant shall be released forthwith on payment of fine. Since it is not proper to award compensation in such, cases. There should, therefore, be in order to this effect. S. A.??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.