1987 P Cr (PLP)

(a) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑Evidence, appreciation of‑‑One witness stating that he had seen the act of sodomy having been committed by accused while other stating that he had only seen the accused running away from spot with string of shalwar in his hands‑‑Third witness clarified position by saying that first witness reached place of occurrence earlier, followed by other‑‑Variation in statements, held, was not of the nature which should cast doubt or, their veracity. (b) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑Contention that cries of a boy could not be heard from a distance of 200 'or 300 yards, held, not tenable‑‑Such distance was given by witnesses approximately and witnesses being illiterate could not be expected to give exact distance. (c) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑No material contradictions found in statements of eye‑witnesses‑‑Witnesses having no reason to falsely depose against accused‑‑Medical evidence proving commission of offence corroborated by reports of Chemical Examiner‑‑Evidence of eye‑witness and victim establishing commission of sodomy‑‑Evidence, quite consistent and straightforward "having no motive to falsely involve accused‑ Substitution of accused with whom victim, his father or real relations had no enmity and was rather related to them, was unbelievable‑ Reason given by accused for strained relations was hardly plausible‑ Accused plea of alibi was not proved‑‑Case against accused under S.377. P.P.C., held, proved. (d) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 377‑‑Sentence‑‑Accused committed heinous offence of sodomy with a boy of 8 years‑‑Sentenced to five years' R.I. and a fine of Rs.5,000‑and in default of payment thereof to suffer R.I. for further one year. Syed Tasadduq Hussain Gilani, A.A.‑G. assisted by‑Lutfullah Mazari, Public Prosecutor for the State. Syed Mushtaq Hussain Shah for the Accused. Munir Ahmad accused son of Abdul Ghani, Caste Mochi, aged about 18 years, resident of House No. 37, Block No. 6, Lane No.2, Khanewal has been tried by this Court under section 377, P.P.C. for having voluntarily committed carnal intercourse against the order of nature with Muhammad Hasnain son of Fazal Muhammad, aged about 8 years, Caste Mochi, a student, resident of Block No. 10, Lane No.2, Khanewal on 16‑2‑1986, at about 4 p.m. in the area of Maila Ground near Stadium, Khanewal.

2. Prosecution case as laid in the complaint Exh.P.B. is as follows : ‑ Muhammad Hasnain P.W.9 was the nephew of Muhammad Ashfaq P.W.4, the complainant and was residing with him at his house at Khanewal since the mother of Muhammad Hasnain P.W. had died when he was only 20 days of age. Muhammad Ashfaq P.W. 4, the complainant had seen Muhammad Hasnain P.W.9 flying kite at about 4 p.m. on 16‑2‑1986 near the house in the lane, while Munir Ahmad accused was also standing nearby. Muhammad Ashfaq complainant went inside his house and when came out after a short time, Muhammad Hasnain P.W.9 was not present in the street. Muhammad Ashfaq complainant started looking for him as he was a child of about 8/9 years old. In the street he met Muhammad Irshad P.W.5 who, on enquiry, told Muhammad Ashfaq complainant that he had seen Muhammad Hasnain P.W. going alongwith Munir Ahmad accused towards the Stadium. Muhammad Ashfaq complainant, Muhammad Abdullah, father of Muhammad Hasnain, as well as Muhammad Irshad. P.Ws went towards the Stadium‑to look for Muhammad Hasnain P.W. and when they reached near the Stadium, they heard cries of the child. When they went near the place from where the cries were coming, they saw that Muhammad Hasnain P.W.9 had been laid with his back towards the sky and Munir Ahmad accused while lying over him had committed sodomy with him. On seeing the complainant as well as the P. Ws., Munir Ahmad accused ran away from the spot. Muhammad Hasnain at that time was crying due to pain and was bleeding from the rectum. He was then lifted from the spot and was being taken to Police Station, but Muhammad Ashfaq A.S.I. P.W.11 met them at Chowk Sanglan Wala, where statement Exh.P.B..of Ashfaq Ahmad P.W.4 was recorded by him. Muhammad Ashfaq A.S.I. sent the complaint Exh.P.B. to the Police Station, Khanewal, where formal F.I.R. Exh.P.B./1 was recorded by Muhammad Sharif Moharrir Constable P.W.2. Muhammad Ashfaq A.S.I. P.W.11, got removed shalwar P.1 and shirt P.2 of Muhammad Hasnain P.W. from his person and made the same into sealed parcel vide memo Exh.P.C. Muhammad Ashfaq A.S.I. P.W.11 when sent Muhammad Hasnain P.W. to District Head Quarters Hospital Khanewal alongwith Abdul Hamid Constable P.W.3 Dr. Muhammad Idris P W.10 medically examined on 16‑2‑1986 at 6‑15 p.m. The doctor also took anal swabs from the body of Muhammad Hasnain and made the same into a sealed phial. He handed over the sealed phial as well as envelope and medico‑legal report to Abdul Hamid Constable P.W.3. The Investigating Officer recorded statements of the witnesses and visited the spot on the next day. He prepared the sketch Exh.P.E. of the place of occurrence. Altaf Hussain Moharrir P.W.7 sent the sealed parcel of clothes as well as sealed phial to the Chemical Examiner through Ghulam Akbar, Constable P.W.6 and Tasawar Iqbal, Constable P.W.8. Muhammad Ashfaq A.S.I P.W.11 arrested Munir Ahmad accused on 21‑2‑1986 from his house. The accused was sent to the Medical Officer for his medical examination vide application Exh.P.A. in order to find out the fitness of the accused to perform sexual intercourse. The accused was examined by Dr Shafiq‑ur‑Rehman P,W.1 and the report of the doctor Exh.P.A./1 is that the accused was physically fit and that his sexual organs were fully developed. On. receipt of reports Exhs.P.F. and P.G of the Chemical Examiner, Dr. Muhammad Idris made note Exh.P.D./1 on the medico‑legal report Exh.P.D. confirming his earlier opinion that penetration had been done. The accused was challaned after completion of the investigation.

3. The accused was charged under section 377 who denied the charge and claimed to be tried.

4. Learned Public Prosecutor gave up Muhammad Abdullah P.W as being unnecessary, tendered into evidence reports of the Chemical Examiner as Exh.P.F and Exh.P.G and closed the prosecution case.

5. At the trial, prosecution examined as many as 11 witnesses in support of its case. Muhammad Hasnain P.W. was about 9 years old. I put certain questions to him to test his intelligence and understanding as an abundant precaution and after being satisfied from his answers and demeanour that he was capable of understanding the questions and give reply properly. I examined him on oath. Muhammad Hasnain P.W.9 fully supported the prosecution case and stated that on 16‑2‑1986 while he was flying kite in the lane near his house, Munir Ahmad accused, who was standing near him, asked him to go to Stadium in order to fly kite. He and Munir Ahmad, therefore, went towards the Stadium and in the way Muhammad Irshad P.W.5 met them in the lane. While reaching near the Stadium, Munir Ahmad accused had laid him over a roller meant for levelling ground and committed sodomy with him. He further stated that due to pain he wept and cried which attracted Ashfaq Ahmad P.W. followed by Muhammad Irshad P.W. and Muhammad Abdullah P.W. (hot produced). He was then lifted and was being taken when Muhammad Ashfaq A.S.I. met them at Chowk Sanglan Wala where the statement of Ashfaq Ahmad P.W.4 was recorded by the A.S.I. He also testified that his clothes, i.e., shirt P.1 and shalwar P.2, which he was wearing at the time of occurrence were taken into possession by the A.S.I and were made into a sealed parcel. He also testified that he was sent to Civil Hospital, where the doctor examined him.

6. Both the eye‑witnesses, namely, Ashfaq Ahmad and Muhammad Irshad have fully supported the prosecution case.

7. Dr. Muhammad Idris P.W. 10 who had examined Muhammad Hasnain opined that the act of sodomy had been committed with Muhammad Hasnain and penetration had been done.

8. The accused when examined after the close of prosecution case, denied the charge and pleaded not guilty. He stated that he had been implicated in the case due to enmity. He made statement on oath under section 340(2), Cr.P.C. and stated that on 10‑2‑1986 Ashfaq Ahmad and Muhammad Irshad P.Ws. had met him and had passed certain indecent remarks which resulted in an altercation between him and the eye‑witnesses. He further stated that on 16‑2‑1986 he had gone to Chak No. 135/15L, Police Station Mian Channu to bring Ch. Shah Muhammad to Khanewal in order to lodge protest 'with Muhammad Irshad P.W. over the incident of 10‑2‑1986 and when they came back to Khanewal on 17‑2‑1986 they came to know that a false case had been registered against him. He produced Shah Muhammad D.W 1 in his defence who stated that Munir Ahmad accused had come to him alongwith his brother Muhammad Yaqoob on 16‑2‑1986 and that both of them had stayed with him for the night and when he accompanied them to Khanewal on 17‑2‑1986, they came to know that a case had been registered against Munir Ahmad accused. He further stated that he took Munir Ahmad accused' to the police station and told the Sub Inspector that he was innocent. But the Thanedar arrested the accused on 17‑2‑1986 and then he went back to his house.

9. I have heard the arguments of the learned counsel appearing on behalf of the State as, well as the accused and have also carefully gone through the record. It has been contended on behalf of the accused that the evidence of two eye‑witnesses namely, Ashfaq Ahmad P.W.4 and Muhammad Irshad P.W.5 was not consistent and was rather contradictory in nature for the reason that Muhammad Ashfaq P.W.4 stated that he had seen the act of sodomy having been committed by the accused while Muhammad Irshad P.W.5 had stated that he had only seen the accused running away from the spot with the string of, "shalwar" in his hands. The variation, pointed out by learned defence Counsel, in my view, is not of the nature which should cast doubt on their veracity. Muhammad Hasnain P.W.9 has clarified the position while saying that Muhammad Ashfaq P.W.4 had reached the place of occurrence first, followed by Muhammad Irshad P.W.5. It, therefore, becomes clear that by the time Muhammad Irshad P.W.5 had reached the place of occurrence, the accused might have started running from the spot.

10. The 'learned defence counsel has also argued that the evidence of these witnesses should not be believed because according to them, they had been attracted to the spot by the cries from a distance of 200 or 300 yards. According to the learned Defence Counsel, it is not possible to hear the cries of a boy from this distance. The contention of the learned defence counsel is not tenable, because the distance of 200 to 300 yards has been given by the witnesses approximately. The witnesses being illiterate, could not be expected to give exact distance. The objection of the learned defence counsel on this score, in my view, has no force.

11. The learned defence counsel could not point out any material contradiction in the statements of the eye‑witnesses. They have no reason to falsely depose against the accused.

12. From the evidence of Dr. Muhammad Idris P.W.10 it is proved that Muhammad Hasnain P:W.9 had been subjected to sodomy. This opinion is further corroborated by the reports of Chemical Examiner Exh.P.F. and Exh.P.G., whereby the anal swabs and clothes of the boy were found to be stained with semen.

13. In support of the prosecution case, that Munir Ahmad accused has committed sodomy, the evidence of Muhammad Ashfaq P.W.4 and Muhammad Irshad P.W.5 coupled with the statement of Muhammad Hasnain P.W.9 the victim, clearly established that Munir Ahmad accused had committed sodomy with the boy. The evidence of the eye‑witnesses) is quite consistent and straightforward. They have no motive to falsely involve the accused.

14. Since it is proved from the medical evidence that sodomy had been committed with Muhammad Hasnain P.W.9. It is highly unbelievable that 'the victim or his father and near relations would substitute the real culprit and involve Munir Ahmad accused with whom they had no enmity and who was rather related to them (as stated by Shani Muhammad D.W.1).

15. I have also given my anxious consideration to the plea of the accused as well. The accused has stated that he had strained relations with Muhammad Ashfaq and Muhammad Irshad P.Ws and, therefore, he had been falsely involved in this case. The reason given by the accused for strained relations is hardly plausible. The accused has further tried to prove his alibi by stating that he had gore to Shah Muhammad D.W.1 at his 'Dera' in Chak No.135/16L, P.S. Mian Channu do 16‑2‑1986. He produced Shah Muhammad in his defence.

16. Shah Muhammad D.W.1 stated that the accused had stayed at his 'Dera' with him and that when .he came to Khanewal on 17‑2‑1986 he came to know that a case had been registered against the accused. The plea of .the accused does not sound reasonably true, because it is not difficult to take such plea and to produce some relations in support of it. The evidence of Shah Muhammad D.W.1 is not confidence‑inspiring because he has stated that although he had come to Khanewal alongwith the accused to have talk with Ashfaq Ahmad and Muhammad Irshad P.Ws in connection with a previous incident of altercation with the accused, yet he went to the police station, handed over Munir Ahmad accused to the police on 17‑2‑1986 and went back to his house. He had also stated that Munir Ahmad accused was arrested by 'THANEDAR' at the police station on 17‑2‑1986, whereas admittedly the accused was arrested from his house on 21‑1‑1986. He further stated that he never appeared before the police during the investigation and that he had deposed in this Court in this regard for the first time after; 17‑2‑1986. If the accused had stayed with him on the day of occurrence, he must have appeared and stated so before the Investigating Officer. For the reasons stated above, the plea of the accused as well as the evidence produced in its' support looks palpably false and there is no possibility of its being reasonably true.

17. The case against the accused is, therefore, Proved beyond reasonable doubt. He is, therefore, convicted under section 377, P.P. C. for committing sodomy with Muhammad Hasnain P.W.9. Since the accused had committed this heinous offence with a boy of 8 years, he is, therefore, sentenced to imprisonment for five years' R.I. with a fine of Rs.5,000 (Five thousand rupees only) or in default of payment thereof to suffer rigorous imprisonment for further one year. He shall be given the benefit of section 382(b), Cr.P.C. while computing the period of imprisonment.

18. The accused is on bail. He shall be arrested to undergo the unexpired period of his sentence.

19. Exhibited articles in this case shall be destroyed, after the decision of appeal, if any. M.A. K./S.121/L Accused sentenced.