P L D 1971 Lahore 929 (PLP)

Dates of hearing: 16th and 17th June 1971. The petitioner Faqir Muhammad was convicted under section 377 of the Pakistan Penal Code, for committing sodomy on Mangta, a boy aged about six or seven years, in Chak No. 224/R. R. in the area of Muhammad Abad, Police Station Peoples Colony, Lyallpur, on 22nd April 1969, in the afternoon and was sentenced to four years' rigorous imprisonment and ten stripes. His appeal before the learned Additional Sessions Judge failed. He has come up in revision to this Court.

2. The evidence against him is that he was sitting with Khair Din (P. W. 2) and smoking Huqqa with him, when he took away the boy on a bicycle. The petitioner brought back the boy on the bicycle at about 2‑00 p.m. and dropped him in the presence of Muhammad Hussain (P. W. 5), who is a neighbours of Ghulam Hussain (P. W. 1) the father of the victim. Mangta was at that time weeping. The witness went to the house of Ghulam Hussain. He was told by the boy that he had been sodomised upon by Faqir Muhammad petitioner. The mother of the victim has died and it appears that he is being brought up by his maternal grandmother. The maternal grandmother of Mangta also told Muhammad Hussain P. W. that the boy had been sodomised upon by Faqir Muhammad petitioner.

3. The father of the boy Ghulam Hussain (P. W. 1), came late in the evening at about 8‑00 p .m. and we find from the first information report that he found his son weeping and asked him the reason therefore. The boy told him the same story. Ghulam Hussain P. W. thereafter went to the Police Station Peoples Colony, Lyallpur and lodged first information report Exh. P. A., which was recorded by Gul Muhammad, A. S. I. (P. W. 3), at 10‑30 p.m. The shalwar of Mangta was taken into possession and was sent for chemical examination.

4. Doctor Imtiaz Ahmad Gill (P. W. 6) examined Mangta on 22nd April 1969, at 11‑00 p.m. and among other injuries, found four lacerated wounds on the anus of the boy. The examination was painful. Swabs were taken from the anus canal of the boy and were sent for Chemical Examination. The result of the Chemical Examination shows that both the shalwar and swabs were stained with semen and the shalwar was also stained with blood. The petitioner was also examined on 23rd April 1969, for fitness to perform sexual act and it was found that he was fit for that purpose.

5. There is no ocular evidence in this case. An objection was taken before the learned Appellate Court that the petitioner had been convicted on inadmissible and interested evidence. It appears from the evidence on record that Khair Din P. W. is the phupha of the dead wife of Ghulam Hussain P. W. i.e. the mother of the victim. His evidence is to the effect that the petitioner took the boy away from his wood‑stall at about 12‑30 p.m.

6. The learned Appellate Court held that the statement made by the boy to his father Ghulam Hussain P. W. was admissible under section 32 of the Evidence Act. I have to say with regret that the learned Additional Sessions Judge invoked the provisions of above section without perhaps reading it. Section 32 provides that statement written or verbal will be admissible if they were made by a dead person as to the cause of his death etc. Further, if a witness cannot be produced for the reasons given in the above section one of them being that h6 had become incapable of giving evidence, then such statements made by him shall be relevant if they were made in the ordinary course of business or against his pecuniary or proprietary interest or relate to the existence of a public right or blood relationship under circumstances mentioned in clauses 4 and 6 of the section. This section also makes admissible declaration made in legal documents such as will etc. by such a person as also general impression and feeling about a relevant matter. This latter subject may relate to cases of defamation etc.

7. Now it is clear that the statement made by Mangta is not covered by any of the subjects mentioned in section 32 of the Evidence Act. Reference to section 32 of the Evidence Act was, therefore, entirely irrelevant. We find from the evidence that Muhammad Hussain P. W. had seen the boy being dropped by the petitioner and had observed that he was weeping. He followed him immediately and asked him the reason for weeping and was told by him that he had been sodomised upon by the petitioner. The learned Additional Sessions Judge has not at all adverted to this part of the evidence on the record which to clearly admissible under section 6 of the Evidence Act as rest gestae. Such statements are admissible when made under the immediate influence of a transaction in order to characterize it and explain the circumstances connected therewith provided there is no time for further thought and fabrication‑(See Noor Muhammad v. Imtiaz Ahmad and another (1971 C 839)). The statement made by the boy to his father would have been admissible as evidence of consistent conduct if he had himself appeared at the trial‑(See Emperor v. Pangunia Bhuian (A I R 1926 Pat. 58)). The learned Magistrate found that he was not capable of giving evidence, and therefore, not able to confirm the statement that was made to his father.

8. The evidence of Muhammad Hussain P. W. coupled with the evidence of the doctor and the result of the Chemical Examiner, proves the case against the petitioner. I find that he was rightly convicted the sentence awarded to him is appropriate in the circumstances of the cases. I, therefore, dismiss the revision petition and uphold his conviction and the sentence awarded to him. Petition dismissed.