1984 P Cr (PLP)

3. Dr. Allah Nawaz Brohi (P.W.3) examined Muhammad Taj and found two big bruises at his neck and the chest, and redness on the inner surface of anus vide medico-legal report Exh. P.D. He prepared his annal swabs and sent to Chemical Examiner for detecting semen and reserved his opinion as to whether sodomy had been committed with the boy or not? On receipt of a positive report Exh. P.C. from there, the doctor opined that sodomy had been committed with Muhammad Taj. This opinion was communicated to the S.H.O. on 26th October, 1980 yet no case was registered. Therefore, Muhammad Taj was constrained to file a private complaint Exh. P.A. in the Court of Magistrate Ist Class, Chicha watni, against the appellant.

4. In complaint Exh. P.A. the story of Muhammad Taj is, that he was going to get a tape-recorder repaired from Noor Radio Service. The appellant who was sitting on his tailoring shop called him and then seduced him to accompany him towards Burewala Chowk on his cycle. He purchased some "Amrood" from there and said that they eat it under shade of trees. Reaching in a thick grove, the appellant started kissing him. He then tried to put off his Shalwar to which he resisted, whereupon the appellant gave him beating with an electric wire of the tape-recorder. The appellant then cut string of his shalwar into three pieces and with that tied down his hands and feet. He also wrapped shalwar around his face and then committed sodomy with him. His cries attracted Ghulam Rasul (P.W.2) and Zulfiqar Patwari (not produced). Seeing them approach ing; the appellant ran away. The witnesses then brought him to his father whom he narrated the whole incident. His father (Muhammad Shafi C.W.1) took him to Police Station Chichawatni, immediately. The police got him medically examined but no action was taken against the appellant, therefore, he was obliged to file complaint Exh. P.A. Learned Magistrate after preliminary inquiry summoned the appellant to face the trial.

5. At the trial the prosecution produced Muhammad Taj (P.W.1), Ghulam Rasul (P.W.2) and Dr. Allah Nawaz Brohi (P.W.3) in support of its case. Muhammad Shafi, father of the victim, was examined as C.W.1. The appellant when examined denied the allegation and stated that Muhammad Taj was chastised by him as he had stolen fifty rupees currency note from his sewing machine. This annoyed the father of Muhammad Taj who concocted the present case against him. He produced A.S.I. Madah Hussain (D.W.1) in his defence who with the help of daily diary register of Police Station Chichawatni stated that according to the police station's record a report No.21 was recorded in the daily diary on 30th August, 1980 at 4.20 p.m. at the instance of Muhammad Shafi, father of Muhammad Taj P. W. wherein Muhammad Shafi had expressed only a possibility of his son Muhammad Taj having been subjected to sodomy, therefore, the boy was sent for medical examination under the care of Noor Muhammad Constable. On receipt of the medical report the then Muharrir of the police station recorded a note to the effect that because the commission of a cognizable offence was not disclosed, therefore, he postponed further action till the receipt of result from the Chemical Examiner. The witness proved Exh. D.A. as the true copy of the aforesaid report of Muhammad Shafi.

6. I would like to give a resume of the prosecution case first, and then deal with the contentions raised by the learned counsel for the appellant.

7. Muhammad Taj P.W.1, has largely narrated the same version he had given in his complaint Exh. P.A. He stated that the appellant took him in the bushes, where they ate the fruits. The appellant, thereafter, made advances towards him and started kissing him. The appellant when tried to strip him naked, but he resisted, but was beaten. His feet and arms were tried down and his neck was pressed. He was then thrown prostrate and was subjected to sodomy. He cried in pain. The commotion attracted Ghulam Rasul (P.W.2) and Zulfiqar Patwari P.W (not produced) and seeing them coming, the appellant ran away. The witnesses brought him to his father, who took him to the police station. The police got him medically examined but no case was registered. He then filed private complaint Exh. P.A. in the Court. In his cross-examination he stated that Jan Muhammad Mashki had come to the spot but after seeing him, he went away, and after his departure Ghulam Rasul and Zulfiqar Patwari reached there. He refuted the suggestion by the defence that he had stolen a fifty rupee note from the sewing machine of the appellant, who chestised him and that in retaliation his father involved the appellant in this case falsely.

8. Ghulam Rasul P.W.2 stated that he was returning to Chichawatni from Dad Fathana on bicycle in the company of Zulfiqar Patwari (not produced). They were still at a distance of 2 K.M. from Chichawatni when they-heard the shrieks of a boy. They went in that direction and saw a man running away from there, whom they identified as the appellant. They saw the victim Muhammad Taj lying prostrate on the ground with his Shalwar around his face, and his hands and feet were tied with a string. The boy had told them that the appellant had committed sodomy with him. They brought him to his father Muhammad Shafi. The witness admitted to be a member of the complaint's brotherhood.

9. Dr. Allah Nawaz Brohi, Medical Officer (P.W.3) examined Muhammad Taj medically on 30th August,1980 and found one contusion mark 17 cm x 3 cm in front and middle of his chest, and a contusion mark 8 cm x 7 cm in the front and posterior side of the neck, within 6 hours-duration. There was redness inside the anus. He prepared two anal swabs and sent them to the Chemical Examiner, Lahore, for detecting semen. Chemical Examiner reported in positive vide report Exh. P.C. On 26th October,1980 he opined that carnal intercourse against the order of nature had been committed with the boy and that he also sent his findings to the S.H.O. In cross-examination he stated that on initial examination of the boy he was not sure if he was" subjected to sodomy, but in view of the Chemical Examiner's report he became certain that the boy was buggered.

10. Muhammad Shafi, father of the victim was examined as Court witness, who spoke in the same strain as did his son Muhammad Taj P.W. He made certain departures from his earlier version given in Exh. D.A. lodged at the Police Station, Chichawatni on 30th August, 1980, immediately after the occurrence. In that, he had stated that it was Jan Muhammad Mashki who had seen the appellant assaulting Muhammad Taj, his son it the forest and had rescued and brought him to his shop. Ghulam Rasul P.W.2 and his companion Zulfiqar Patwari (not produced) were not mentioned in report Exh. D.A., as the eye-witness of occurrence or having brought the boy to his father. The witness had candidly admitted certain suggestions to mean that since he had lost faith in Jan Muhammad Mashki for he was won over by the appellant and refused to give evidence in favour of the prosecution.

11. Learned counsel appearing on behalf of the appellant argued that story put up by Muhammad Taj P.W. in his complaint Exh. P.A. is materially different than the version given by his father initially in report Exh.DA recorded on 30th August, 1980 i.e. the day of occurrence, wherein only a po6sibility of commission of sodomy with Muhammad Taj by Allah Ditta, appellant, was expressed but in the complaint Exh. P.A. a direct and specific allegation of sodomy has been levelled. He further pointed out that in that report, Ghulam Rasul and Zulfiqar Patwari were not named as the eye-witnesses of the occurrence or that they had brought Muhammad Taj from the forest to his father (Muhammad Shaft). Jan Muhammad Mashki the solitary eye-witness who allegedly had seen the appellant assaulting Muhammad Taj victim and brought tire victim to his father, did not enter the witness-box to support the prosecution. The learned counsel emphasised that the case being of two versions, entertains grave doubts as to its genuineness. As against this, learned counsel for the State as well as for the complaint support the impugned order. I have given my anxious thought to the submissions of the learned counsel for the parties, having persued the record with their assistance.

12. It is sure that Ghulam Rasul P.W.2 was not named as eye-witness in report Exh. D.A. He was rather stated to have seen the appellant taking away Muhammad Taj, the victim, on a bicycle, on the relevant day, which fact he did not depose when appeared in Court. Since his name did not find mention in the first report Exh. D.A. as an eye-witness, therefore, I exclude his evidence e6tirely from consideration by way of abundant caution. Muhammad Shafi (C.W.1) father of the victim boy, at one stage described Ghulam Rasul P.W.2 and Zulfiqar Patwari (not produced) as the eye-witnesses of the occurrence but in cross-examination he relegated to the original story which he had offered in his report Exh. D.A, which was lodged immediately after the occurrence. In a way he admitted that he changed the names of eye-witnesses because Jan Muhammad Mashki originally mentioned as eye-witnesses in Exh. D.A. had crossed floor at the instance of the appellant and refused to appear for the prosecution. The helplessness of Muhammad Shafi is too obvious to be described.

13. Having discarded the evidence of Ghulam Rasul P.W., there now remains the evidence of the victim, Muhammad Taj and his father Muhammad Shafi coupled with the evidence of Dr. Allah Nawaz Brohi, who examined the boy on 30th August,1980 and later confirmed that he was subjected to sodomy. According to report Exh. D.A, Judged by Muhammad Shafi, his son Muhammad Taj was taken by the appellant on a bicycle to the forest where he was thrown on the ground, stripped naked and violated and the occurrence was witnessed by Jan Muhammad Mashki P.W. (not produced for having been won-over). As the boy had some marks of violence of his person, therefore, Muhammad Shafi, took him to the police and reported the incident suspecting that the boy was subjected to sodomy, but the police rested content by entering the information in the daily diary and did not register a case. This report lodged with promptitude lays the foundation stone of this case. It presents unalloyed, straight forward and true account of the incident, wherein the appellant had been nominated as an accused without knowing as to what would be the medical report. Except changing the names of the eye-witnesses, rest of the story given, both in police report Exh. D.A. and the complaint Exh. P.A. is largely the same. I, therefore, do not think that non-appearance of Jan Muhammad Mashki in any manner has weakened the prosecution case. The main incident as described by Muhammad Taj, the victim, also finds immense support from the evidence of Muhammad Shafi C.W. I and the medical evidence.

14. It is correct that in report Exh. D.A. there is no specific mention about the appellant having committed sodomy with Muhammad Taj but a suspicion to this effect was specifically expressed therein. This is explain able. It seems that the boy had not disclosed this fact to his father out of shyness, yet Muhammad Shafi (the father) having heard the incident from his son and having seen the marks of violence on the person of the boy expressed suspicion against the appellant to have committed sodomy. His suspicion turned out to be true as reported by the medical witness and the Chemical Examiner.

15. For the discussion above, I am convinced that the appellant as alleged by the prosecution had committed carnal intercourse against the order of nature with Muhammad Taj a minor boy. He was, therefore, rightly convicted under section 377, P.P.C which is hereby maintained.

16. Lastly the learned counsel for the appellant submitted that the appellant is a raw youth and a first offender who is a labourer and is the only bread-winner for his family and the sentence awarded by the trial Court is excessive and harsh in the circumstances mentioned above. The contention is not wholly without force. The occurrence had taken place on 30th August, 1980 and the trial of the appellant concluded on 27th February, 1982 i.e. after about 11 years. In view of his age and family circumstances, the sentence appears to be excessive. I am of the view that three years' R.I. and a fine of Rs.1 ,000 in default of payment of fine two months' R.I. shall adequately meet the requirements of the case, therefore I order accordingly. The amount of compensation i.e. Rs.5,000 awarded by the trial Court is, however, maintained which shall be paid to Muhammad Taj, the victim, in default whereof the appellant shall undergo further R.I. for six months the punishment of whipping is, however, set aside.

17. The result is that the conviction of the appellant is maintained but the sentence is reduced, as indicated above. M. Y. H. Order accordingly.