P L D 1967 Lahore 357 (PLP)

7. The petitioner's learned counsel next argued that the learned Sessions Judge having disbelieved the essential link in the prosecution case concerning the apprehension of the petitioner as he was trying to run away from the scene of the occurrence, rendered the entire prosecution case doubtful and this secured to the petitioner a right to claim benefit of doubt. With this contention I do not agree. As observed already, the learned Sessions Judge did not say that the evidence regarding the appre hension of the petitioner was perjured: he merely regarded it as doubtful. Nevertheless, he was careful enough to say that there was ample evidence to connect the petitioner with the commission of the offence. That conclusion is unassailable having regard to the evidence of the victim of the crime and that of Muhammad Ramzan as corroborated by the injuries on the person of Javed lqbal and recovery of semen‑stained trousers and piece of cloth and 'anal swabs which too were found by the Chemical Examiner to be semen‑stained. The suggestion that the petitioner had been a victim of the boy's father's pique and the headmaster's strained relations with him, is fantastic and rightly rejected by the Courts below. It is impossible to believe that a father of a school‑going boy of 9 years would stoop so low as to allow his son to be subjected to sodomy in order to fabricate a case under section 377, P. P. C. against the boy's teacher whose only fault was that he declined to give pass‑marks to the boy who had failed in the annual test. There fore, I entirely agree with the conclusions reached by the Courts below that offence under section 377, P. P. C. is established against the petitioner beyond any reasonable doubt and dismiss the criminal revision filed by him.

8. This brings me to, what I consider, the most important aspect of the case, namely, the adequacy of sentence imposed upon the petitioner. As pointed out in the beginning, the trial Court besides imposing sentence of two years R. I imposed sentence of 15 stripes under the Whipping Act. The latter sentence was remitted by the learned Sessions Judge in appeal owing to what he thought to be lacuna in the law. But that view, in my opinion,. proceeds entirely on a misreading of section 4 of the Whipping Act as amended by section 3 of the Whipping (West Pakistan) (Amendment) Ordinance, 1963 (West Pakistan Ordinance 42 of 1963). The Ordinance came into force on the 24th of November 1963. . Prior to that section 4 of the Whipping Act read as follows:‑ "

4. Whoever‑ (a) abets, commits or attempts to commit, kidnapping as defined in sections 360 and 361 of the Pakistan Penal Code in respect of any person under the age of ten; (ab) abets, commits or attempts to commit, kidnapping or abduction as defined in sections 360, 361 and 362 of the Pakistan Penal Code, in respect of any person under the age of ten in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in such danger; (ac) abets, commits or attempts to commit, kidnapping or abduction as defined in sections 360, 361 and 362 of the Pakistan Penal Code with intent to cause the persons kidnapped or abducted to be secretly or wrongfully confined, where that person is under the age of ten ; (ad) abets, commits or attempts to commit, the wrongful concealment or confinement of a person under the age of ten, knowing that persons to have been kidnapped or abducted within the meaning of sections 360, 361 and 362 of the Pakistan Penal Code; (ae) abets, commits or attempts to commit, rape as defined in section 375 of the Pakistan Penal Code; (b) compels or induces any person by fear of bodily injury, to submit to an unnatural offence as defined in sec tion 377 of the said Code; (c) voluntarily causes hurt in committing or attempting to commit robbery as defined in section 390 of the said Code; , (d) commits dacoity as defined in section 391 of the said Code; (c) abets, commits or attempts to commit an offence of insult to the modesty of a woman punishable under section 509 of the Pakistan Penal Code may be punished with whipping in lieu of or in addition to any other punishment to which he may for such offence, abetment or attempt be liable under the said Code." Section 3 of West Pakistan Ordinance 42 of 1963, which amended section 4 of the Whipping Act on, the other hand reads an follows:‑ "

3. Amendment of section 4, Act IV of 1909‑ In section 4 of the said Act‑ (i) clauses (1), (ab), (ac) and (ad) shall be omitted; and (ii) clause (ae) shall be re‑lettered as clause (a) of the said section." It is plain from reading the two sections together that clauses (b), (c) and (d) of section 4 of the Whipping Act were left untouched by section 3 of the West Pakistan Ordinance XLII of 1963. The latter provision omitted clauses (a), (ab), (ac) and (ad) `from section 4 of the parent Act, and transposed clause (ae) as clause (a) of the section as amended though some of the omitted clauses were simultaneously reinstated as sections 3‑A and 4‑A of the B parent Act. Thus it will be seen that clause (b) of section 4 of the Whipping Act, as ‑ originally enacted, remains intact and could be invoked in a proper case falling under section 377 of the Pakistan Penal Code to impose the punishment of whipping in lieu of or in addition to any other punishment. It is a pity that the Public Prosecutor was not able to assist the learned Sessions Judge in, resolving the confusion arising out of repeated amendments carried out in the parent Act. It is also a matter of regret that even learned counsel for the State appearing in this Court did not address any argument 'on the point .and apparently was satisfied with the view, the learned Sessions Judge had taken in the matter and thought it fit to leave the matter entirely for the Court to examine.

9. This brings me to the next question whether the peculiar circumstances of the case call for enhancement of the punishment imposed upon the petitioner which incidentally he has already undergone and has, therefore, been discharged from jail. Learned counsel for the petitioner pleaded with considerable earnestness that even if the sentence imposed upon the petitioner be held to be inadequate, it may not be enhanced for that would entail his return to jail after his release and that ordinarily the High Courts have shown great reluctance to enhance the sentence of imprison ment after the convict has undergone the sentence imposed by the lower Court. In support of his contention learned counsel cited a number of precedents, though he conceded frankly that those cases merely refer to a general practice and were not intended to lay down an absolute rule to follow. Indeed, Crown v. Jagat Singh (I L R I Lah. 453) and Emperor v. Shahzad (A I R 1928 Lah. 961) the sentences imposed upon the convicts were enhanced after they had undergone the sentence imposed upon them by the lower Courts. In these two cases the principle was clearly asserted that if the sentence in a particular case is manifestly inadequate,. it is competent to the High Court to impose additional punishment even though the convict has served out his sentence. Even the wordings of section 439 of the Criminal Procedure Code do not impose any such limitation as is suggested by the petitioner's learned counsel.

10. The question then is whether the sentence of two years in this case could be described as manifestly inadequate so as to justify enhancement of sentence in the circumstances set out above. There is no getting away from the impression that the petitioner, who was a teacher, took undue advantage of his dominating position and compelled Javed Iqbal, who was his pupil, to submit to the unnatural offence to satisfy the petitioner's animal lust. Indeed, the petitioner behaved worse than a brute. For his lust not being satiated with having once committed unnatural offence with the boy, he tried to repeat his brutal act for the second time when the boy, helpless, as he was, broke down and started crying. There can be no manner of doubt that the petitioner was able to perpetrate this abominable crime upon the boy because the latter was his pupil and, therefore, under his influence. The. injury around the anus of the boy also unmistakably shows that he 'was not a catamite. Therefore, besides suffering the physical injury, he suffered grave indignity and shame among his classmates. This, indeed, heightens the enormity of the crime. Therefore, a sentence of two years' rigorous imprisonment as against the maximum of transportation for life or ten years' imprisonment of either description besides fine, if any, under sect4on 377, P. P. C. is manifestly inadequate amounting to a his carriage of justice. Having given my anxious consideration to the circumstances of the case and with a view to making the sentence a true deterrent so as to serve as a pointer to others with similar evil propensities, I sentence the petitioner to four years' rigorous imprisonment, including. the period he has already undergone, under the judgment of the learned Sessions Judge. I further order that he shall suffer 15 stripes under section 4 (b) of the Whipping Act, I am satisfied from the statement of the boy in the trial Court that he was compelled to submit to the unnatural offence by the petitioner, and, therefore, the provision of the above clause can appro priately be invoked to impose the additional sentence of whipping. The petitioner shall surrender himself to the Additional District Magistrate, Mianwali, to‑ suffer the remainder period of sentence of imprisonment‑ ‑and sentence of whipping hereby imposed. K. M. A. Sentence enhanced.