P L D 1959 (W (PLP)

2. The prosecution case is that Javid Iqbal (P. W. 1), who is a student of 7th class and is aged thirteen years, used to buy vegetables and other commodities for the mother of Muhammad Ayub appellant from the market. After school hours, he used to sit at the shop of his father situate in Baghbanpura. At about 2‑30 p.m., on the 30th of June 1958, Muhammad Ayab appellant came to the shop and in the presence of Ilyas (P. W. 6) told Javid Iqbal that he was wanted by his (Muhammad Ayub's) mother. Javid Iqbal accompanied him to his house. In his baithak Javid Iqbal found some sweetmeats lying on ‑a table. Muhammad Rafiq, Muhammad Sharif and Allah Din appellants were also present there. . They asked him to partake of, the sweets, but he refused. Upon this, Muhammad Rafiq, Muhammad Sharif and Allah Din appellants left the baithak leaving behind Muhammad Ayub appellant and Javid Iqbal. 'Muhammad Ayub then shut the door of the baithak and Javid Iqbal protested, but Muhammad Ayub threatened to kill him. He forcibly removed the trousers of Javid Iqbal, who started crying. Muhammad Ayub then rubbed his penis on the anus of the boy and discharged without penetra tion. He also bit him on his thigh. Muhammad Ayub went out into the deohri and Allah Din, Muhammad Rafiq and Muhammad Sharif appellants came into the baithak turn by turn and committed sodomy on him. The appellants then left and Javid lqbal came out of the baithak weeping. He met Muhammad Bashir (P. W. 5) and told him that the appellants had committed sodomy on him. The latter began to search for the appellants but could not find them. Javid Iqbal reached home at about 3‑45 p.m. His father came back home at 4‑45 p.m. Javid Iqbal then went to Police Station Baghbanpura accompanied by his father and made the first information report Exh. P. A. at 6‑20 p.m. This was recorded by A. S. I. Rehmat Khan (P. W. 7), who investigated the case and arrested the appellants.

3. Doctor Muhammad Rashid (P. W. 2) examined Javid Iqbal at 10 p.m., on the 30th of June 1958, and found the follow ing injuries on his person :‑ (1) A laceration, 1/5" x 1/10", on the posterior part of anus. There was slight redness around the anus. (2) An abrasion, 1/8" x 1/8", just to the outer end of the left eyebrow. (3) A contusion, 2" x 2", on the front of middle of left thigh. The doctor took two swabs from around and inside his anus and sent them to the Chemical Examiner for examination of semen and blood. The report of the Chemical Examiner Exh. P. D. dis closes that the swabs were stained with semen.

4. The appellants were examined by Dr. Fayyaz Mahmud (P. W. 4) who found that there was nothing to show that they were incapable of performing the sexual act. There was no mark of violence on their persons.

5. The appellants have denied the prosecution allegations. In defence eleven witnesses have been produced. Muhammad Ayub in his defence produced Ibrahim (D. W. 1) who gives him good character, and recalled Muhammad Bashir (P. W. 5) as D. W. 2, Doctor Fayyaz Mahmud (P. W. 4) as D. W. 3, and A. S. I. Rahmat Khan (P. W. 7) as D. W. 4, for purposes of further cross‑examination. Nothing useful emerges from these statements except that Muhammad Bashir P. W. 5 has admitted that his sister was betrothed to the son of the maternal uncle of the aunt of Javid Iqbal, Ibrahim (D. W. 5) and Miraj Din (D. W. 6) state that on the day of Baqar Eed, at 9 a.m., Muhammad Rafiq, father of Javid Iqbal, was passing by the shop of Allah Din appellant, when the latter demanded Rs. 8 as repair charges from him and there was a quarrel between them. Nur Muhammad (D. W. 7), Bagh Ali (D. W. 8) and Barkat Ali (D. W. 10) say that Muhammad Rafiq and Muhammad Sharif appellants remained at the house of Nur Muhammad on the day following the day of,Baqar Eed in connection with qurbani. Abdul Haq (D. W. 9) gives good character to Muhammad Rafiq and Allah Din appellants. Ahmad Beg (D. W. 11) was merely tendered for cross‑examination.

6. The case for the prosecution rests on the evidence of Javid Iqbal (P. W. 1). He deposes that Muhammad Ayub came to the shop at 2‑30 p.m., and took him to his baithak on the pretext that his (Muhammad Ayub's) mother wanted him and there each of the appellants committed sodomy on him, though there was no penetration by Muhammad Ayub appellant. Ilyas (P. W. 6), who is a cousin of Javid Iqbal, deposes that Muhammad Ayub asked Javid Iqbal to accompany him, as he was wanted by his (Muhammad Ayub's) mother and Javid Iqbal went with him. Muhammad Bashir (P. W. 5) says that Javid Iqbal met him at a distance of 150 feet from the house of Muhammad Ayub and complained to him that he had been subjected to carnal intercourse against the order of nature by the appellants.

7. In view of the injury found around his anus and the presence of semen on the swabs, there can be no doubt that Javid Iqbal was subjected to sodomy. . He has no reason to falsely implicate the appellants or to fabricate this case against them. His statement is corroborated by those of Ilyas (P. W. 6) and Muhammad Bashir (P. W. 5) and the presence of a contusion on his left leg caused by a bite by Muhammad Ayub. In his evidence, Javid Iqbal says that he was bitten on the right leg but the doctor deposes that the injury was on the left leg, as is stated in the first information report. This is hardly a discrepancy, as is contended for by the learned counsel for the appellants, and it appears that the boy has forgotten which particular leg he was bitten on.

8. The eviddnce of Ibrahim (D. W. 5) and Miraj Din (I

3. W. 6) is calculated to show that there was a quarrel between Allah Din appellant and Muhammad Rafiq, father of Javid Iqbal, and this had led to false implication of the appellants. The so called quarrel was never put to Javid lqbal, nor was mentioned by the appellants in their statements. The defence is an after thought and cannot furnish a motive for fabricating such a case against .the appellants. It is established beyond doubt that Muhammad Ayub appellant attempted to have carnal intercourse against the order of nature with Javid Iqbal, and Allah Din, Muhammad Rafiq and Muhammad Sharif appellants actually com mitted the offence, because there was penetration by them.

9. The defence evidence has not been pressed into service by the learned counsel appearing for the appellants. The alibi evidence of Nur Muhammad, Bagh Ali and Barkat Ali and the other defence evidence is utterly unreliable, and has been rightly disbelieved by the trial Court.

10. Mr. Gul Muhammad, the learned counsel for Muhammad Rafiq and Muhammad Sharif appellants, argued on their behalf that there was delay in the first information report and in the medical examination of Javid lqbal and that his solitary statement is not sufficient for the conviction of the appellants. The report was made at 6‑20 p.m. at the police station when the incident had happened between 2‑30 and 3‑30 p.m., and the father of Javid Iqbal had not returned home till 4‑45 p.m. The delay is not such as can be considered abnormal. The boy was medically examined at 10 p.m. and if the police could not arrange for the medical examination earlier, it is none of his fault and his evidence cannot be discarded for this reason. I have no hesitation in accepting the evidence of Javid Iqbal as true without corroboration, bearing in mind the desirability of corroboration in such cases and other relevant factors. His evidence is corroborated by the testimony of Muhammad Bashir and Ilyas P. Ws. as far as it could be. He has without a doubt been subjected to sodomy and there is no reason for him to add to the number of those who committed this crime on him, or to substitute the criminals for the appellants. Mr. Nasim Hassan Shah, learned counsel for Muhammad Ayub, relying on Meharban Nowshirwan Irani v. Emperor (A I R 1934 Sind 206), argues that no offence has been committed by his client as no penetration took place and he cannot be held guilty of an attempt at sodomy as his act did not go beyond the stage of preparation. The facts of that case are distinguishable from the present. Javid Iqbal P. W. has clearly stated that Muhammad Ayub forcibly removed his trousers and rubbed his penis on his anus, but discharged before penetration. The act certainly went beyond the stage of preparation. He had done all that he could towards the commission of the offence and he failed to penetrate only because he discharged. It must be held in his case that though there was no penetration there was an attempt to commit an unnatural offence against the order of nature, which renders him liable under section 377 read with section 511 of the Pakistan Penal. Code.

11. He next contends that it is not permissible to sentence Muhammad Ayub appellant to a term of rigorous imprisonment beyond five years' under section 377 read with section 511, Pakistan Penal Code. This contention has force. An offence under section 377 of the Pakistan Penal Code is punishable with trans portation for life, or with imprisonment of either description for a term which may extend to ten years, but in case of a conviction under section 377 read with section 511 of the Pakistan Penal Code, the maximum punishment which can be imposed is one half of the longest term of transportation or of imprisonment. This limitation is provided by section 511 of the Pakistan Penal Code. Therefore, Muhammad Ayub can either be sentenced to trans portation for life for ten years, as section 57 of the Pakistan Penal Code provides that transportation for life shall be reckoned as equal to twenty years' transportation, or a maximum of five years' rigorous imprisonment. When a person is proved guilty of and attempt under section 377 or 376 of the Pakistan Penal Code and is sentenced to imprisonment, he cannot be sentenced to a term beyond five years, though he can be transported for ten years. This view has been taken Queen v. Joseph Merian ((1868) X Weekly Rep. (Cr.) 10). It is not permissible to convert twenty years of transportation provide by section 57 of the Pakistan Penal Code for calculating the maximum term of rigorous imprisonment. The maximum term which can be imposed in case of attempts under section 511 in such cases is one‑half of the longest term of transportation where a sentence of transportation is awarded or one‑half of the longest term of imprisonment for the offence, where imprisonment is imposed. Muhammad Ayub appellant decoyed Javid Iqbal to his baithak for the commission of the offence and he deserves no leniency, but as the maximum sentence of imprisonment which can be imposed in his case under section 377/511, P. P. C. is five years' rigorous imprisonment, I reduce the sentence to five years' rigorous imprisonment. The conviction and sentence of the remaining appellants is maintained and their appeals are dismissed. K. B. A./A. H. Appeal dismissed Sentence modified.