2004 P Cr (PLP)

This appeal is directed against judgment, dated 24-3-2001, by Additional Sessions Judge, Jampur District Rajanpur, whereby learned trial Judge convicted the appellant under section 377, P.P.C. and sentenced him to undergo R.I. for 7 years, plus to pay a fine of Rs.50,000 in default whereof to undergo R.I.-for one year. Half of the fine on recovery has been directed to be paid as compensation to the victim. Habib, tried along with the, appellant was acquitted vide the same judgment. Feroz, also challaned along with the appellant, had absented and so was declared absconder.

2. Occurrence in this case had taken place on 20-3-1997 at 3-00 p.m.; at Hazooran Wahi, in the area of Mauza Wah Lashari, at a distance of 15 kilometers from Police Station Harrand. F.I.R. Exh.P.A./1, was recorded at the police station, by Aman Ullah, M.H.C. (P.W.7) on 21-3-1997 at 9-30 a.m., on receipt of statement Exh.P.A., made by Mohsin Ali (P.W.1), victim in this case, on the same day before Iftikhar Ahmad, A.S.-I., (P.W.5), on the same day at 9-00 a.m. at Bakhi Mehrr. According to F.I.R., complainant was a 6th class student. He had returned home on 20-3-1997, after school was closed at, 3-00 p.m. After leaving his school bag at his house, he went to Hazooran Wahi, for easing himself. While returning home, after attending the call of nature, he reached Band Sindhari, in the area of village. Wah Lashari at 3-30 p.m. Muhammad Hussain (appellant herein); Habib (acquitted accused) and Feroz (absconder), were grazing sheep there. Habib called him and offered to take tea. When he moved towards his house, after taking tea, Feroz and Muhammad Hussain caught him, from the arms and took him to Hazooran Wahi. Muhammad Hussain placed his hand on his mouth, Feroz removed his Shalwar forcibly lay him on the earth with face downward. Muhammad Hussain while keeping his hand on his mouth also caught him from the arms. Feroz committed sodomy with him. Thereafter, Feroz placed his hand on his mouth caught him from the arms and Muhammad Hussain committed sodomy with him. Hearing alarm raised by him, Hanif (P.W.2) and Abdul Razzaq (given up P.W.) who were working in the nearby fields, came there. On seeing them, accused ran away. Mohsin Ali went home and narrated the occurrence to his uncle Fida Muhammad and Ali Muhammad maternal-uncle. Information was sent to his father who had gone to Salampur. In the meantime, accused started beseeching his uncle and maternal uncle, saying that they will compensate for the excess committed by them but they did not agree. He stated that on the arrival of his father, he set out for lodging the report along with his father and Fida Muhammad uncle.

3. Iftikhar Ahmad, A.S.-I. after dispatching statement Exh.P.A., to the police station for registration of case, took into possession Shalwar of the victim, produced before him vide memo. Exh.P.B. Thereafter, he sent the victim to the hospital for medical examination. A sealed phial containing swabs, received from the doctor, after medical examination was taken into possession by him vide memo. Exh.P.-E. Thereafter, he visited the spot, prepared site plan Exh.P.F. and recorded statements of the P.Ws. After completion of necessary investigation, he got the challan submitted to Court, against all the three accused.

4. Statements of 7 P.Ws. were recorded at the trial. Before proceeding further, it will worthwhile, noticing here that Feroz accused had absconded and could not be arrested even through non-bailable warrants of arrest. He was, therefore, declared absconder by fulfilling all legal formalities.

5. Doctor Faiz Ullah Khan, who had medically examined Mohsin Ali, aged 13 years on 21-3-1997, appeared as P.W.4. He had not found any mark of injury on the buttock and perinial area of the examinee. On examination, anal canal wall was found congested slightly, while anal ring was loose: He had removed three anal swabs from the perinial area for being sent to the Office of the Chemical Examiner. He had reserved his opinion till receipt of report from there. According to the report Exh.P.D. received from the office of the Chemical Examiner, swabs had been found stained with semen.

6. Mohsin Ali, victim, while appearing as P.W.1, by and large repeated the same facts which he had got recorded in his statement Exh.P.A. on the basis of which formal F.I.R. Exh.P.A./l, had been registered at the police station. He, only, made one addition by stating that Ali Muhammad had gone to inform his father at Salampur. During cross-examination, he stated that Muhammad Hussain accused was elder to him. He gave out that he had received injuries on his knees joints and thighs. He gave out that when the witnesses had reached the spot, accused had run away up to a distance of 4/5 paces. The witnesses had chased them only up to 6/7 paces. He stated that his father had returned home on the next morning. He gave out the distance between Hazooran Wahi and his school as one acre. He denied the suggestion that a false case had been planted against the accused due to enmity between their families. He denied the suggestion that the case had been registered falsely due to dispute over the hand of a girl named as Lal Mai.

7. Muhammad Hanif, P.W.2, corroborated the statement made by P.W.1 to the extent that he along with Abdul Razzaq had reached the spot, hearing hue and cries raised by the victim and seen the accused committing sodomy with him. During cross-examination, he admitted that they were at a distance of 7/8 Karams when the accused had run away along with their Shalwars. He admitted that accused had demanded hand of his sister Mst. Lal Mai but they had refused. He also admitted that there was a dispute over a piece of land between them and the accused party. He denied the suggestion that a false case had been registered against the accused due to those factors.

8. Iftikhar Ahmad, A.S.-I. who had recorded statement Exh.P.A., of the complainant; investigated the case, arrested the accused and got the challan submitted to Court, appeared as P.W.5 and gave the details of investigation done by him (the same have been noted in an earlier para.). During cross-examination, he stated that he had removed the Shalwar of the victim and provided Chaddar to him for wearing. He denied the suggestion that all the three accused had been involved in this case falsely. He denied the suggestion that version of the accused, during investigation was that they had been involved in this case due to dispute over possession of land and Rishta of Mst. Lal Mai. Statements of remaining witnesses are more or less of a formal nature. Positive report Exh.P.D. received from the office of the Chemical Examiner was also tendered in evidence.

9. Appellant during statement under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. In answer to the question, "why this case against you?", he stated as follows:-- "There was a dispute between the complainant party and my elders over the hand of a girl Mst. Lal Mai for which a false case has been got registered against me." While answering question, "why the P.Ws. have deposed against you?", he stated as follows:-- "Muhammad Hanif P.W. is maternal-cousin (ﭙﻬﻭﭙﻬﻰﺰﺍﺪ) while Abdul Razzaq P.W. (given up) is the real uncle of Mohsin Ali, P.W. They have falsely roped me in the case on account of the dispute over the hand of Mst. Lal Mai between the complainant party and my elders. I am innocent." He examined in defence Qazi Taj Muhammad, Headmaster, Government High School, Tibbi Solgi, as D.W.1. Qazi Taj Muhammad stated that according to the School Leaving Certificate Exh.D.1, pertaining to Muhammad Hussain, his date of birth is noted as 15-1-1988. During cross-examination he admitted that record of dates of birth etc. is maintained by Rehmat Ullah teacher. He, however, claimed that he can identify his signatures on Exh.D.1. He denied the suggestion that he had made a false statement. Appellant did not choose to make statement on oath under section 340(2), Cr.P.C. Habib, tried along with him, had also pleaded innocence.

10. Learned counsel for the appellant after having gone through the evidence, argued the case at some length, but then decided not to challenge conviction of the appellant. However, he prayed for reduction in the sentences awarded to him, mainly on the ground that. he was about nine years and two months old at the time of occurrence, according to the entries of school leaving certificate Exh.D.1. Learned counsel for the State defended the judgment of the trial Court. However, he did not seriously oppose the prayer of the learned counsel for reduction in the sentences saying that the reduction should not be disproportionate.

11. Notwithstanding the fact that the learned counsel for the appellant have not challenged the conviction of the appellant, I have gone through the evidence, examined the record and perused the impugned judgment. In this case a young boy aged 13 years had been subjected to sodomy by two persons, while third had remained standing there.

12. Plea taken by the appellant during trial that he had been involved in this case because the hand of Mst. Lal Mai, a girl from the family of the complainant, demanded by his family had been refused and that there was a dispute about some land between his family and the family of the complainant, does not advance-the case of the appellant for the reason, that even if it is believed that complainant party had refused hand of Mst. Lal Mai, demanded by the family of the accused, there would have been no annoyance to the complainant party because it was they who had refused the request of the accused party as such they were not aggrieved party.

13. Although P.W.2, uncle of the victim had admitted during cross- examination that there was a dispute of land between their family and the family of the accused but neither the cross-examiner nor the witness qualified what was the dispute between the family of the appellant B herein, or the acquitted accused or with accused who had absconded and family of the complainant. No documentary proof of the said dispute was produced at the trial.

14. Statement made by the victim inspires confidence. The same also is corroborated by the positive report received from the Office of the Chemical Examiner that swabs had been found stained with semens. In the circumstances, there is nothing on record warranting interference in the judgment of conviction. The same is, therefore, maintained.

15. According to the school leaving certificate, Exh.D.1, produced in defence by the appellant, he was nine years and two months old at the time of occurrence. He was a student of third class. It is quite possible that there was difference between the actual age of the appellant and the one recorded in the school leaving certificate, but keeping in view the normal practice it cannot be assumed that he would have been aged 18/19 years at the time of his making statement under section

342. Cr.P.C. i.e. 28-6-2000 which was only three years after the occurrence, possibly he might have been 15 years-old. The point raised by the learned counsel for the appellant that there appears to be some mistake in recording the age of the appellant during statement under section 342, Cr.P.C. on the ground that appellant while answering a question during examination under section 3422, Cr.P.C., had stated that "I am aged 12-1/2 years". Without going into the fact that the claim of the appellant was correct or not, one thing stands proved that if appellant had given his age as 18/19 years, he could not have claimed to be 12-1/2 years while answering a question during same process i.e. making statement under section 342, Cr.P.C. Going by the facts on ground it cannot be assumed that the appellant while being a third class student, could have been more than 10/11 years old. If it is assumed that he was 10/11 years, he remained a minor. Considering the age factor I feel, sentence of R.I. for three years, plus to pay a fine of Rs.5,000 in default whereof to undergo S.I. for four months, will meet the ends of justice. Order accordingly. Benefit of section 382-B, Cr.P.C., shall be given. Fine on recovery shall be paid as compensation to the victim. I have reduced the fine from Rs.50,000 to Rs.5,000, considering the fact that appellant was not an earning member. His parents could not afford to engage a counsel for him for filing appeal before this Court. Appeal had been filed through Superintendent Jail and a counsel at State expense was appointed to appear on his behalf, as such the fine was absolutely disproportionate. H.B.T./37/FSC Order accordingly.