1988 PLP 1063 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the order of a learned Division Bench of the Peshawar High Court, Abbottabad Circuit, dated 2‑11‑1987.

2. Muhammad Haroon petitioner was charged under section 376/377, P.P.C. for committing rape and sodomy upon a minor girl, namely, Shazia, of his village. The occurrence allegedly took place on 18‑3‑1977 at Digar, the report of which was lodged by the father of the victim soon after. After the completion of investigation, the petitioner was put to trial where a learned Magistrate with powers under section 30, Cr.P . C . , Mansehra, vide his order, dated 27‑5‑1978, convicted him under section 377, P.P.C. and sentenced him to three years' R.I. and a fine of Rs.500 or in default to three months' further R.I. A sentence of five stripes was also imposed upon him under the Whipping Act. The petitioner was further convicted under section 376/511, P.P.C. and sentenced to three years' R.I. Both the sentences were ordered to run concurrently. The petitioner took up his conviction and sentence in appeal to the Court of Session where he succeeded in getting his case remanded to the trial Court on 11‑7‑1978 for recording other evidence. The learned trial Court after doing the needful as directed by the appellate Court, vide its order, dated 13‑3‑1979, convicted him under section 377, P.P.C. and sentenced him to three years' R.I. and a fine of Rs.500 or in default to three months' further R.I. He was also awarded five stripes under the Whipping Act. The petitioner was further convicted under section 376/511, P.P.C. and sentenced to undergo three years' R.I. Both the sentences were ordered to run concurrently. This time again the petitioner filed an appeal against his conviction and sentence which was allowed by the Additional Sessions Judge, Abbottabad at Mansehra, vide order, dated 9‑5‑1979.

3. Feeling aggrieved by the above order, the State filed an appeal in the High Court against the acquittal of the petitioner, where the learned Judges of the High Court after scanning the entire evidence set aside the order of acquittal of the petitioner and vide their judgment, dated 2‑11‑1987 while acquitting him of the charge under section 376, P.P.C. convicted him under section 377, P.P.C. and sentenced him to three years' R.I. with a fine of Rs.500 or in default to three months' further R.I. He was also given the benefit of section 382‑B, Cr.P. C.

4. We have heard the learned counsel for the petitioner. In support of his petition, he submitted firstly that the petitioner has been falsely implicated because of the existence of acute enmity between the parties and secondly that Mst. Shazia P.W. who had appeared as her own witness at the trial, did not accuse the petitioner of the commission of the offence of sodomy and thus his acquittal was proper and legal. We are, however, afraid that none of the above submissions would prevail with us. It is true that Muhammad Anwar (P.W.1), the father of the victim, at the trial has admitted the existence of enmity between him and the family of the petitioner but this admission under no circumstance, could extend to Mst. Shazia P.W. who at the time of occurrence was five years old and as such would not be aware of the existence of such an enmity. Therefore, it cannot by any stretch of imagination, be said that she had accused the petitioner because of the alleged enmity. As for the second contention, the victim is a minor girl of very tender age. At the trial she only deposed that she was beaten by the petitioner and she probably said so because she did not know as to what the petitioner had done to her. What in fact was done to her had been disclosed by Lady Doctor Waheeda Sultana who had examined the victim soon after the occurrence. The Lady Doctor at the trial deposed that the victim was found: "(1) Bleeding from the anus and faeces coming out of the anus. (2) Multiple tears of anus present with redness and swelling all around. (3)Redness around vagina but hymen intact." According to the Lady Doctor anal intercourse had been done. Thus, the statement of Lady Doctor Waheeda Sultana coupled with the statement of the victim has established the guilt of the petitioner to the hilt. His conviction and sentence is, therefore, maintained.

5. Before parting with the case, we may express our extreme displeasure over the quantum of sentence. This obviously is ridiculously less because in a case like the one the petitioner deserved exemplary punishment.

6. The petition is dismissed. M.I./M‑413/5 Petition dismissed.