1985 P Cr (PLP)

‑‑‑S. 377‑‑Sodomy‑‑Medical evidence‑‑Anus swabs not found to be stained with semen because material before Chemical Examiner was too little to admit of any proper detection‑‑Doctor who examined victim finding number of abrasions around anus and also recording fact that during examination victim (child) felt pain‑‑Evidence, held, clearly showed that victim was subjected to unnatural offence. (e) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑Sodomy‑‑Accused a teacher committing sodomy with a student of 8 years in a school room‑‑A co‑student entering room and seeing accused committing sodomy with victim‑‑Accused ordering co‑student of victim to get out of room and again starting to commit sodomy with victim and sparing victim only after getting his full satisfaction‑ Prosecution witness including boys of 10 and 13 years of age supporting prosecution version‑‑Medical evidence corroborating prosecution case‑ Evidence on record, held, conclusively proved case of prosecution against accused in circumstances‑‑Conviction maintained in circumstances. (f) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑Sentence‑‑Offence of sodomy being of serious nature‑‑Accused undergoing a little more than 2 months of sentence‑‑Revision petition of accused coming up for hearing after 15 years‑‑Accused suffering agony of protracted trial‑‑Accused also suffering agony arising out of delay in disposal of his revision petition which itself being a sufficient punishment‑‑Held, it would be hard to send accused to prison to serve out revisionary portion of sentence after lapse of such long time‑ Sentence of two years reduced to one already undergone in circumstances. Kh. Hafeezullah for Petitioner. Abdul Qayum Anjum for A.‑G. for the State. Date of hearing: 31stMarch, 1985. This is a revision petition filed by Muhammad Anwar, petitioner, against the judgment, of the learned Sessions Judge of Lyallpur, dated 16‑10‑1970 dismissing his appeal. Earlier a First Class Magistrate of Lyallpur by his judgment dated 31‑12‑1969 had convicted the petitioner under section 377, P.P.C. and sentenced him to two years' rigorous imprisonment.

2. According to the prosecution story, Muhammad Anwar, accused was a teacher in a village school. On 3‑1‑1969, Baniameen went to the school as usual. The accused during recess period, called him inside the room, untied his Azarband and began to commit sodomy with him. Whilst he was committing the unnatural offence, Sarwar, P.W.5 a co‑student, entered the room and saw the accused committing sodomy with Baniameen. The accused on seeing Ghulam Sarwar, P.W.5, reacted sharply and ordered him to get out of the room and again started committing sodomy with Baniameen, and spared him only after getting full satisfaction of his devilish instinct. Baniameen went out of the room after tying his Azarband and told the matter to his fellow students. The accused in the meantime also went to his house in a different village. Baniameen went to his house and told the matter to his father, Jalla, P.W.1 who took the boy to Dost Muhammad, P.W.2 and Ahman, P.W.4 where also the boy told about the occurrence. Jalla, P.W.1 took the boy to the hospital on the next day and got him medically examined and then lodged the report Exh. P.A. After investigation the accused was challaned under section 377, P.P.C.

3. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the record. On behalf of the petitioner, it is contended that Ghulam Sarwar, P.W.5 and Muhammad Akram, P.W.6 were of tender age and that they were not examined by the Court as regards their competency before their evidence was recorded. It is next submitted that Baniameen, the victim was not produced to give evidence. Lastly, it is submitted that Dr. Ahmad Ghulam Muhammad, P.W.7, who took swabs from the anus of Baniameen, did not confirm in his evidence, that they were found to be stained with semen.

4. I have given my anxious consideration to this case. Ghulam Sarwar, P.W.5 and Muhammad Akram, P.W.6 are aged 10 and 13 years respectively. Children of the age of 10 years cannot be stated to beg "of tender years". See Hari Pads Debnath alias Haria and another v. The State 1968 P Cr. L J

569. The competency of a witness is not regulated by age, but by the degree of understanding which they appear to possess. No objection was taken on behalf of the petitioner that these two witnesses were of such mental disposition as not to be able to understand the questions put to them or to give rational answers to such questions. In these circumstances, the objection of the learned counsel for the petitioner is rejected. With regard to the second submission, Baniameen, the victim, was produced in Court for examination but being 8 years old, he was examined as to his competency and found unable to understand the questions put to him or to give rational answers thereto. Accordingly, his evidence was not recorded. Nothing, therefore, turns on this objection. With regard to the last submission raised, it is true that the anus swabs were not found to be stained with semen. But this was because the material before the Chemical Examiner was too little to admit of any proper detection. However, the fact remains that Dr. Ahmad Ghulam Muhammad, P.W.7, who examined Baniameen, the victim found a number of abrasions around the anus and also recorded the fact that during examination the child felt pain. The evidence, therefore, clearly shows that the victim was the subject of an unnatural offence. Taking all circumstances into consideration, the evidence on the record conclusively proves the case of the prosecution h against Muhammad Anwar, petitioner. He appears to have been properly convicted.

5. It is specially urged in the alternative, that in case the petitioner is found guilty, his sentence be reduced to that already undergone. In this connection, it is submitted that the present revision petition, which was admitted in 1970 has come up for hearing after almost 15 years and that it would be unjust for the petitioner to be sent back to prison to serve out the balance portion of his sentence after such a long period. It is also submitted that the petitioner has also suffered the agony of a protracted trial. The offence for which the petitioner has been found guilty is a serious offence. The petitioner has only undergone a little more than 2 months' sentence. However, considering the fact that the present petition, which was admitted in 1970, has come up for hearing after almost 15 years, it would indeed be hard to send the petitioner to prison to serve out the remaining portion of his sentence, after a lapse of such a long period of time. The petitioner has suffered the agony of protracted trial. He has also suffered the agony arising out of the delay in the disposal of this petition, which itself is sufficient mental punishment. Taking all circumstances into consideration I would reduce the sentence of the petitioner to that already undergone. However, the petitioner shall pay Rupees Five Thousand (Rs. 5,000) to Baniameen, the victim, as compensation under section 544‑A, Cr.P.C. for the injury, mental anguish and psychological disturbance suffered by him. In the event of non‑payment of compensation the petitioner shall undergo one year's rigorous imprisonment. This petition, therefore, stands partly accepted in terms of reduction in sentence as stated above.

6. The petitioner is on bail. Subject to the payment of fine, his bail bonds shall stand discharged. H. A. K. Revision partly accepted.