1980 PLP 786 (SCMR)

S. 307‑Petitioner allegedly enticing a boy to accompany him to a room, attempting to kiss him with avowed object of commit ting carnal intercourse with him and on boy's resistance picking up an ice pick and inflicting injuries on boy's chest and other parts of body and himself suffering injuries in transaction‑Boy himself having been found under influence of alcohol and no evidence to show he having not willingly accompanied accused, room left for doubt as to boy's own unbecoming conduct‑Consider ing such fact, simple nature of injuries sustained by parties and period of detention as under trial prisoner, interest of justice, held, met by reducing sentence to period of detention in Jail.‑[Sentence] Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Muhammad Aslam Uns, Advocate Supreme Court for the State. Dates of hearing : 10th and 21st November 1979. MUHAMMAD HALEEM, J.‑The petitioner seeks special leave to appeal against the order of the Lahore High Court, Lahore dated the 22nd of August 1978, by which Criminal Revision No. 603 of 1978 was dismissed and the conviction and sentence of the petitioner upheld. The petitioner was tried by a Magistrate Section 30 on the charge under section 307, P. P. C. convicted there under and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000 or in default to further undergo rigorous imprisonment for six months. The prosecution led evidence to establish that the petitioner enticed Javaid a boy of 15/16 years to accompany him to a room of a club adjacent to the Punjab House where he attempted to kiss him with the avower object of committing carnal intercourse with him. Javaid resisted whereupon he picked up an ice‑pick and inflicted with it three injuries on his chest and the other parts of the body and himself suffered injuries in the transaction, although he did not admit them to have been caused as a result of the resistance offered by Javaid. His plea was that he was falsely implicated due to enmity. The learned Magistrate accepted the statement of Javaid which he found to be corroborated by the injuries on his person and sentenced the petitioner. In spite of the medical opinion that tile injuries on the person of the petitioner were not caused by a friendly hand, the learned Magistrate did not place any reliance tin, them in view of his statement that they were not caused by Javaid while resising the assault on him. The appellate Court upheld the conviction and sentence of the petitioner and the revision also failed as the High Court held that the: testimony of Javaid was sufficient to bring home the guilt to the petitioner. The learned counsel for the petitioner was not able to persuade us to take a different view on the merits of the case but we felt that the sentence awarded to the petitioner in the wake of the fact that he had remained in custody for three years required alteration in the facts and circumstances of the case. Accordingly, we ordered notice to the A.‑G. Punjab, and Mr. Aslam Uns has appeared today in response to it. From the record, it appears that the injuries on Javaid were simple in nature and that the medical officer while examining him found that he smelled of alcohol. The petitioner also sustained injuries and in all probability these must have been caused by Javaid. The learned Magistrate while awarding the sentence took into consideration the fact that he had suffered the agony of protracted trial for a period of about three years. The High Court felt that the sentence should be enhanced but taking into consideration his incarceration for a period of three years before his conviction, did not enhance the sentence. The High Court bas not given any reason why it felt so but it appears to us that it was influenced by the injuries sustained by Javaid in resisting the attempt to commit carnal intercourse an act which is looked down upon as highly immoral. However, the courts below failed to take into consideration the fact that Javaid was himself found under the influence of alcohol and in the absence of any evidence that he did not willingly accompany the petitioner to the room of the hotel, it leaves a room for doubt as to his own unbecoming conduct. Considering this fact, the simple nature of the injuries sustained by Javaid and those inflicted on the petitioner and the period during which he remained as an under trial prisoner, we feel that the interest of justice would be me if tile sentence is reduced to that already undergone. We are informed that he has already remained in jail for 2 years and that he would be released after undergoing the sentence on the 20th of July 1980. Accordingly, we would convert this petition into an appeal and allow it subject to the above modification. Appeal allowed