1988 P Cr (PLP)

Sardar Muhammad Ishaque for Appellant. Makhdoom Abdul Wali for the State. Date of hearing: 9th February, 1988. FARKHRUDDIN H. SHAIKH, J.-- This is an appeal from the judgment of Additional Sessions Judge, Karachi (South), dated 3-11-1987, whereby the appellant was convicted under section 377, P.P.C. and sentenced to suffer R.I. for five years and to pay fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months. He was also charged with offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but was acquitted of the same.

2. The charge against the appellant was that on 3rd April, 1985 at 10-30 p.m. he had subjected Muhammad Imran, a boy aged 10 years, to carnal intercourse against the order of nature.

3. The F.I.R. In this case was lodged on the same night by Muhammad Iqbal, the father of the alleged victim. The F.I.R. was recorded by P.W.5 Abdul Majeed, who had, arrested the appellant and sent him as well as the victim to the hospital for medical examination. P.W.3 Dr. Shafi Nizamani had examined the victim and was of the opinion that he had been subjected to sodomy. The appellant was examined by Dr. Imtiaz Hussain Shah (P.W.6), who was of the opinion that the appellant was fit to commit sexual intercourse.

4. In support of the prosecution case there is evidence of complainant Muhammad Iqbal and the victim boy namely P.W.2 Muhammad Imran. The last mentioned witness has stated that at the time of the incident he had gone to the common latrine for easing himself at 10-30 p.m. when appellant Muhammad Shafique came there, caught hold of him and tore open his pant and subjected him to sodomy. The boy had come to his house and informed his father Muhammad Iqbal, who had taken him to the police station and lodged report. He is corroborated by his father P.W.1 Muhammad Iqbal and P.W.3'Dr. Shafi Nizamani, who found following damage on the person of the victim: "Facaeal matter on both buttocks, Musuca of anal region red and conjested. Macusal tear at 1, 7 and 11 o'clock position." In view of the above condition of anus of the victim child, the doctor was of the view that the child had been subjected to sodomy.

5. The main witness in this case is P.W.2 Muhammad Imran: who had no enmity with the appellant. He had implicated the appellant as the person who had subjected him to sodomy.

6. It has been argued by the learned counsel for the appellant that this is a case of substitution of the culprit. According to him the alleged victim was subjected to sodomy by some unknown person, who could not have been identified with certainty in the dark night at 10-30 p.m. It is thus not denied that the child was actually subjected to sodomy. According to the defence plea it was some person other than the accused /appellant, who had committed this act. However, P.W.2 Muhammad Imran has stated in unequivocal words that there was electric light in the neighbouring house, due to which he was able to identify the culprit with certainty, who was none else than the present appellant. We are, therefore, of the view that the appellant was rightly convicted under section 377, P.P.C. The result is that conviction under section 377, P.P.C. is maintained. So far as the sentence is concerned we find that the appellant was aged 17/18 years at the time of the incident and he had already remained in detention during the trial for about three years and after his conviction, for three months. Hence the sentence of imprisonment is reduced to the period already undergone. The sentence of fine of Rs.1,000 (Rs. one thousand) is, however, maintained. In default of payment of fine he shall further undergo R.I. for two months. He shall be released on payment of fine or on the expiry of the period as aforesaid. Appeal partly allowed to the extent of sentence indicated above. S.A./407/F.Sh. Appeal dismissed.