2021 PLP 16 (YLRN)

ALI BAIG, J.

This criminal appeal under section 410, Cr.P.C. is directed against the impugned judgment/ conviction order dated 24-03-2017 passed by the learned Additional Sessions Judge Gilgit, whereby, the learned Sessions Judge Gilgit has convicted the appellant/ convict and sentenced as under:- A. He is convicted and sentenced to rigorous imprisonment for a period of ten (10) years under section 377, P.P.C. with fine of Rs.50,000/- and in default of fine to suffer one year imprisonment. B. Accused is also convicted under section 324, P.P.C. and sentenced to rigorous imprisonment for five (05) years with fine Rs.50,000/- and in default thereof to suffer three months simple imprisonment. C. Accused is also convicted and sentenced to one year under section 297, P.P.C.

2. Prosecution case as narrated in the FIR is that on 07-10-2014, at about 19:30 hours, the appellant/convict namely Mujahid Hussain abducted the victim boy namely Hasnain Alam aged about 6/7 years from Sonikote and took the victim inside the compound of Ismaili Community's Graveyard situated at Sonikote Gilgit and forcibly committed sodomy with the above named victim. Thereafter, the appellant/convict attempted to kill/murder the victim and the victim sustained injuries. After committing the offence, appellant/convict decamped from the place of occurrence leaving the victim at the place of occurrence in injured condition.

3. After registration of criminal case against the appellant/convict, vide FIR No.77/2014, under sections 377, 324, 367 and 297, P.P.C., at Police Station Jutial Gilgit, case was entrusted to Mr. Zaman, SIP/IO for interrogation/investigation, who arrest the appellant/convict named above. He took the victim boy and admitted in DHQ Hospital Gilgit for his medical examination/treatment. He proceeded to the place of occurrence and prepared site plan, EXh.PW-1/B. He recorded statements of PWs under section 161, Cr.P.C. After completion of usual investigation, the above named Investigating Officer submitted in-complete challan to SHO concerned for onward submission of the same in the court of competent jurisdiction for trial of the appellant/convict.

4. The SHO/SIP, namely Abdul Hadi, Police Station Jutial Gilgit submitted challan of the case before the court of competent court, i.e., in the court of the learned Sessions Judge Gilgit for trial of convict.

5. On receipt of challan, the learned Sessions Judge Gilgit assigned the case to the Additional Sessions Judge Gilgit; who, after providing copies of statements and relevant documents to the appellant/ convict, framed charge against the appellant/convict on 12-3-2015, to which the appellant/convict pleaded not guilty and opted to contest the case. Accordingly, the learned Sessions Judge Gilgit summoned the P.Ws.

6. In order to prove its case against the appellant/convict, the prosecution produced/examined as many as ten (10) P.Ws. After examination of PWs, the learned trial court examined the appellant/convict under section 342, Cr.P.C., wherein, the appellant/convict denied the allegations levelled against him and professed his innocence. However, the appellant/convict neither got recorded his statement on oath under section 340(2) Cr.P.C. nor produced any witness in his defense. On conclusion of trial, the learned trial court convicted the appellant and sentenced him as mentioned above.

7. The learned counsel appearing on behalf of the appellant/convict have contended that the impugned judgment/ conviction order passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellant/convict have further argued that the complainant party has entered into compromise with the appellant/ convict and the complainant and victim have no objection if the appellant/convict is acquitted, therefore, by accepting compromise, effected between the parties, the appellant may be acquitted.

8. On the other hand, the learned Deputy Advocate General controverted the arguments advanced by the learned counsel for the appellant and supported the impugned judgment passed by the learned trial court by contending that the prosecution has proved its case against the appellant/convict beyond any shadow of doubt, therefore, the learned trial court has rightly convicted and sentenced the appellant/convict vide the impugned judgment which may be maintained. The learned Deputy Advocate General has further argued that offence under section 377 is not compoundable, therefore, compromise effected between the parties cannot be accepted.

9. I have carefully considered the submissions made by the learned counsel for the parties and have gone through the record of the case with the able assistance of the learned counsel for the parties.

10. Admittedly, on the intervention of jirga members, the complainant party has effected compromise with the appellant/convict outside of the court during pendency of the instant criminal appeal. The complainant, namely Maqsood Alam, who is also guardian of minor victim, had appeared before this court on 02-02-2018 and had got recorded his statement, wherein, he has stated that he has patched up the matter with the appellant/convict. He does not want to prosecute the case against the appellant/ convict any further and he has no objection if the appellant/convict is acquitted from the charges or released on bail. On the basis of statement of complainant, the appellant/convict was released on bail by this court vide bail order dated 03-02-2018.

11. Record reveals that the appellant/ convict has been awarded maximum ten (10) years rigorous imprisonment and the appellant/convict has already served out three (3) years and four (4) months and as such the appellant has served out more than half of the sentence awarded to him by including remissions. Offence under section 324, P.P.C. is compoundable and the appellant has been awarded sentence under section 297, P.P.C., which is on year imprisonment, which has already served out by the appellant/convict.

12. Although offence under section 377, P.P.C. is not compoundable and yet the compromise effected between the parties can be considered as a ground for reduction of sentence. Since the complainant has entered into compromise with the appellant/convict and the appellant having already served out more than half of sentence including remissions as awarded by learned trial court, therefore, it would be appropriate and ends of justice would be sufficiently met, if the sentence of appellant/convict as awarded by the learned trial court is reduced from ten (10) years rigorous imprisonment to Three (3) years rigorous imprisonment already undergone by the appellant/convict. The fine of Rs.50,000/- is reduced to 20,000/- which the appellant shall deposit in the learned trial court within one week of the passing of this judgment as, under section 377, P.P.C., imposition of fine is mandatory requirement. If the appellant/convict fails to deposit the amount of fine in the trial court within one week, he shall undergo rigorous imprisonment for a period of two (2) months. Sentence of fine amounting to Rs.25000/- imposed under section 324, P.P.C. by the trial court is set aside.

13. With the above modification in the impugned judgment dated 24-03-2017, passed by the learned trial court, the appeal of the appellant/convict is dismissed and the judgment of the trial court is maintained. Record and proceedings of the trial court along with certified true copy of this judgment be remitted back to the learned trial court. Sentence reduced. File. SA/206/GB Sentence reduced.