1991 P Cr (PLP)

Ayub Hassan for Petitioner. Nemo for the State. Date of hearing: 18th June 1991. The facts leading to the filing of this Criminal Revision are that a case under section 377, P.P.C. was got registered by one Muhammad Yasin with Police Station Kalorkot, District. Mianwali, with the allegation that Nazar Muhammad petitioner has committed sodomy with the grandson, Gulzar Ahmad, of the first informant Magistrate 1st Class, Bhakkar, vide his judgment dated 29-10-1980 convicted and sentenced the petitioner to three years' R.I. with ten lashes under section 377, P.P.C. The convict appealed. Additional Sessions Judge, Mianwali, vide his judgment dated 10-5-1981 dismissed the appeal and also imposed fine of Rs.2,000 or in default thereof one year's R.I. The petitioner has challenged both the judgments in this revision. Complainant Muhammad Yasin has also filed a revision (bearing No. Crl.524 of 1981) seeking enhancement of sentence. Both the revisions will be disposed of by this judgment.

2. It was contended by learned counsel for the petitioner that the case against the petitioner was highly doubtful. Submitted that the victim Gulzar Ahmad appeared as P.W.3 and stated that he had been tutored by his grandfather Muhammad Yasin, P.W., about the statement. Argued that the medical evidence would not be of much help to the prosecution because the swabs were not taken for detection of semen.

3. I have heard the learned counsel and gone through the evidence with his assistance. The prosecution in order to establish its case had produced. Muhammad Yasin, Rashid Ahmad and Gulzar, P.Ws.1, 2 and

3. All the three of them had given the ocular account of the occurrence. Gulzar Ahmad at the time of commission of the offence was less than six years of age. He was subjected to lengthy cross-examination but the defence could not bring anything on the record to indicate that it would be unsafe to rely upon his testimony. None of the witnesses was even suggested any motive or ill will. The doctor who had medically examined Gulzar Ahmad, victim, had given a positive finding that he had been subjected to sodomy. After going through the evidence and the judgments impugned, I am of the view that the prosecution has succeeded in proving its case beyond doubt. There is no misreading or non-reading of evidence. The contention of the learned counsel that the lashes may not be awarded to the petitioner keeping in view his age, which was less than 16 years at the time of commission of offence, has some merits. Therefore, it is directed that the sentence of infliction of ten lashes to the petitioner is hereby set aside. The other conviction and sentences of the petitioner are maintained. As far as the question of enhancement of sentence of the petitioner is concerned, I do not think there is any merit in the revision filed by the complainant (bearing Criminal Revision No.524 of 1981). He has already been awarded three years' R.I which is sufficient in the circumstances of the case. Therefore, the revision petition seeking enhancement of the sentence also fails, which is accordingly, dismissed. H.B.T./N-105/I. Conviction maintained/Order accordingly.