1982 P Cr (PLP)

Wilayat Khan petitioner was convicted under section 377 of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years and a fine of Rs. 1,000 vide judgment, dated 28th April, 1969 passed by Mr. Tajammal Abbas, Magistrate First Class, Lyallpur. His appeal before the Sessions Court having failed, he has come up in revision to this Court.

2. The brief facts of the prosecution case are that on the night between 14th and 15th October, 1967 at about 11-30 p. m. when Abdur Razzaq complainant was going to his house after parking his Rehri near the truck-stand of the petitioner, a person called him in the office of the petitioner where the petitioner and another person were present. All the tree were drunk. The person who called the complainant in the office, asked him to take off the shalwar but he refused to do so, upon which he slapped him. The petitioner then. took out a knife and told the complainant that he would be done to death if he raised alarm, and all the three made him to lie with his face downward and the petitioner committed sodomy with him. On the alarm of the complainant, Muhammad' Hussain and Allah Rakha got attracted and reprimanded the petitioner. On the following morning at 7-30 a. m. the complainant reported the occurrence to Asghar Ali Shah Sub- Inspector Incharge, Police Post, Jhang Bazar, Lyallpur, vide his statement Exh. P. A. on the basis of which a case was registered against the peti tioner under section 377, P. P. C. On the sane day at 8 a. m. Dr. Ahmad Ghulam Ahmad. Medical Officer, D. H. Q. Hospital, Lyallpur examined the complainant and found a laceration 1/6" x 1/12" in the anal area. He also took two anal swabs which were sent to the Chemical Examiner and his report is to the effect that the same were stained with semen. The doctor opined that sodomy had been committed with the complainant. He also examined the petitioner and found him potent. After the investigation, the petitioner was challaned.

3. In support of its case, the prosecution examined eight witnesses in all. Besides the complainant, Allah Rakha gave an ocular account of the occurrence. Muhammad Hussain P. W. stated that on hearing the alarm he rushed to the spot where three persons, including the petitioner, were present and Abdur Razzaq complainant told him that he had been subjected to carnal intercourse. 4 The petitioner pleaded not guilty to the charge, denied the prosecution allegations and stated that the proprietors of Inam Goods Transport, in collusion with the police, had falsely implicated him due to professional rivalry. He examined four witnesses in defence. The gist of their evidence is that the petitioner is a gentleman and that he has been falsely implicated due to professional rivalry.

5. The learned counsel for the petitioner contended that the F.I.R. was made after an inordinate delay and no satisfactory explanation for the same has been offered by the prosecution. He further submitted that the presence of the eye-witnesses at the spot at that odd hour of the night was improbable and the identity of the petitioner as the culprit has not at all been established as the occurrence took place at night in a room in which the lights had been put off.

6. The occurrence took place on the night between 14th and 15th October, 1967 at 11-30 p. m. and the matter was reported to the Police on the following morning at 7-30 a. m. The delay is there, but in the circumstances of the case it is not fatal to the prosecution. In cross examination the complainant stated that he went to the police station at night but nobody met him there and he could make the report at 7-30 a. m. It is of importance to note that in the F.I.R. only the petitioner has been named as the person who committed sodomy with the complainant. If the F. I. R. had been deliberately delayed to gain time in order to build up a story, it would not have been difficult for the complainant to gather information about the other two persons who facilitated the commission of offence and then to name them in the F. I. R.

7. The statement of the complainant finds substantial corrobora tion from the statements of Allah Rakha and Muhammad Hussain P. Ws. the medical evidence and the report of the Chemical Examiner. Having gone, through the record, I do not find substance in the contention that the identity of the culprits was in doubt. The complainant remained in the room of occurrence for quite some time. At the relevant time Allah Rakha and Muhammad Hussain, who were attracted to the alarm immediately, were the employees of the petitioner. There is nothing on the record to suggest that the complainant had any connection with the proprietors of Inam Goods Transport Company and could be used by them as a tool for bringing a false charge against the petitioner. I am, therefore, satisfied that the petitioner was rightly convicted under section 377, P. P. C.

8. I am mindful of the fact that this petition is being heard about eleven years after its institution but in view of the heinousness of the crime and the fact that the learned trial Magistrate has already taken a very lenient view of the matter, I see no reason for any further reduction R in the sentence.

9. For the foregoing reasons, this petition is dismissed. The petitioner shall be arrested forthwith and sent to jail to serve out the unexpired portion of his sentence. Petition dismissed