1970 P Cr (PLP)

SHAUKAT ALI, J. -Ali Muhammad (20) was tried for an offence under section 377; P. P. C. by a Magistrate First Class, Lyallpur, who convicted him to suffer two years R. I., plus a fine of Rs. 600 or in default to undergo R. I. for a further period of six months. On appeal, the Additional Sessions Judge, Lyallpur, altered the conviction from one under section -377, P. P. C. to that under section 377/511, P. P. C., but the sentences were upheld. The convict has come up in revision. The revision petition was laid before one of us (Shaukat Ali, J.) and it was found that the view expressed in Maazullah v. State (1) was in conflict with other authorities. Therefore, the matter was referred to the learned Chief Justice, for constituting a D. B.

2. The facts are these. On 27th August 1966, at peshiwela, the petitioner committed carnal intercourse against the order of nature with Hidayat P. W. 1, a boy aged 9/10 years, in the dhari of Shameer in Chak No. 436/G. B. District Lyallpur. Rashid Ahmad (not produced) and Latif Ahmad P. W. 6, witnessed the occurrence. The report of the occurrence was lodged on 29th August 1966, at l 1 a. m. by Hidayat at Police Station Bahlak which is at a distance of 11 miles from the spot and was recorded -by M. H. C. Muhammad Aslam P. W. 4, Malik Muhammad (1) P L D 1961 Pesh. 7 Abbas P. W. 3, investigated the case and challaned the petitioner under section 377, P. P. C.

3. The prosecution in support of its case examined Hidayat, P. W. 1, and his father Khushi Muhammad P. W.

2. Latif Ahmad P. W. 6 did not support the prosecution. Rashid Ahmad was given up as having been won over.

4. The defence of the petitioner was a bare denial. He ascribed the case to enmity and disclaimed the responsibility of the crime. No evidence was called in defence.

5. The learned trial Magistrate relied on the statement of tile victim and found its corroboration from the testimony of Khushi Muhammad and the medical evidence. He took the view that the mere fact that no semen was detected on the swabs taken from the anal canal of the victim was not enough to dis credit the prosecution story of the incident.

6. We have, for our satisfaction; scrutinised the evidence on record. Hidayat P. W., on whom sodomy was committed, is aged 9/10 years. A few inconsistencies occur in the evidence of Hidayat in the Court anti in the first information report Exit. P. A. Oddly enough, the attention of Hidayat P. W. was not drawn to the first information report to explain the contradictions. It is in his evidence that he apprised his father, Khushi Mohd. of this incident, immediately after the occurrence. Khushi Muhammad t'~ P. W., deposed that he and Hidayat took the flock of sheep for grazing. He left the flock in the care of his song Hidayat, and himself went to his house for meals. Later on, Hidayat P. W., came to him and told him that the accused had committed sodomy with him. We are alive of the circumstance that Khushi Muhammad P. W., is not an eye-witness of the occurrence, but what Hidayat stated to him immediately after the occurrence, was ' rightly taken into consideration. It affords corroboration of the statement of the victim. No question was put to Khushi Muhammad and Hidayat P. Ws. regarding the enmity between them and the petitioner. We, therefore, bold that the Courts below rightly decided to accept the evidence of Hidayat P. W The medical evidence revealed injuries on the person of Hidayat P. W. including signs of violence in the form of reddish contusion about 2" to 1" around the anus. It was put to the medical expert if this injury could be caused by rubbing with some hard substance and the reply was in the affirmative. Why necessity arose that Hidayat should rub his anus-against a hard substance does not appeal to sense.

7. From the medical evidence and the report of the Chemi cal Examiner on the record, it is obvious that there was no penetration. The question that calls for determining is when the A the petitioner, who could not effect penetration, is guilty of an~ attempt to commit sodomy. Learned counsel for the petitioner cited Maazullahv. State, Meharban Nobiuhirw-an Irani v. Emperor (1), Muhammad Shuaib v. The Crown (2), Nuna v. Emperor (3) and ., ' A.searali Pradhania v. Emperor (4). The allegations in Uaazullah's i, (1) A I R 1934 Sind 206 (2) P L D 1951 Bal. 22 (3) 15 1 C 309 (4) 1 L R 61 Cal. 54 case were that the accused caught hold of the complainant, removed his trousers and also his own and rubbed his penis against his anus and got discharged. The learned Judge took the view that if there had been any intention on the part of the accused to effect penetration, there was nothing to prevent him from doing so and that he deliberately abstained from penetration. He held that the accused was not guilty of the offence under section 377/ 511, P. P. C. In Meharban Nowshirwan Iraru v. Emperor, the appellant took Ratansi, a lad aged 18, to his house. He locked the door and began to take liberties with the youngster, who resented the overtures and wanted to be allowed to go away. The appellant nevertheless removed his own pants, loosened the trousers of Ratansi and made the lad sit on his lap on top of his organ. Ratansi got up from the lap, but in the meanwhile the appellant had spent himself, wiped his organ and put on his pants. The learned Judicial Commissioner was of the view that there was an intention on the part of the accused to satisfy his lust by a carnal intercourse against the order of nature, and he made every preparation to satisfy that lust, but before he could thrust his organ in he spent himself. Therefore, he cannot be said to have done any act which might be construed as attempt to commit the offence of sodomy. In Muhammad Shuaib v. The Crown, Saker, J. C. found that the evidence of sperms near the anus of the complainant's and the presence of seminal stains on both complainant's and appellant's clothes cannot prove the fact that penetration took place, and without penetration an offence under section 377, P. P. C. has not been committed. We have no cavil with this proposition of law, but the learned Judicial Commissioner did not address himself as to whether or not it would made out a case of attempted sodomy. In Nana v. Emperor the accused took off a girl's clothes, threw her on to the ground and then sat down beside her. He said nothing to her nor did he do anything more to her. The Punjab Chief Court in our opinion rightly held that the accused committed an offence under section 35,4, Penal Code, and was not guilty of an attempt to commit rape. In Asgarali Pradhana v. Emperor, the accused intended to administer something capable of causing a miscarriage. He gave some harmless substance for that purpose. It was held that he was not guilty to attempt to cause miscarriage. In fact, this case is not relevant to the case in hand.

8. The law as to what amounts to an attempt is of necessity vague. To constitute an attempt the act must be clearly connected with the actual commission of the offence, but no distinct line can be drawn. No abstract test can be given for determining whether an act is sufficiently proximate to be an attempt. To constitute a attempt there must be evidence of some overt-act. The definition of the word "attempt" can be found in Article 67 of Digest of, the Criminal Law, by Stephen, Seventh Edition, which reads: - "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission it were not interrupter', " In the American and English Encyclopaedia of Law, Vol. Ill, page 250 (2nd Edition), "attempt" is defined as: - "An act done in part execution of a criminal design, amount ing to more than mere preparation, but falling short of actual consummation,, and possessing, except for failure to consummate, all the elements of the substantive crime." In Muhammad Ali and another v. The State (1) the accused caught hold of a boy aged 11/12 years, threw him down on the ground with his face upwards, formed a cavity between his thighs and then entered his male organ into the cavity and after discharge of semen got up. Their Lordships held that the accused was guilty of offence under section 377, P. P. C. They took the view that to constitute offence under the section penetration into anus would not be essential in every case, and that a person can be guilty under section 377, P. P. C. even though there was neither actual penetration per anus or in a legal sense attempt at such penetration. In Muhammad Ayyub v.The State (2) Mr.Justice S.A: Mahmood (as he then was) considered Meharban Nowshirwan Irani v. Emperor and opined that the facts of that case were distinguish able from the case in hand. We have examined the facts in both the cases and are of the view that they are identically but the view followed by the learned Judge was the correct enunciation of law, as in both the cases act of the accused was beyond the stage of preparation. We are of the view that the attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than, the commission of the specific crime.

9. For the foregoing discussion and after examining the relevant case-law on the subject, we are of the view that the opinion expressed in Muhammad Shuaib v. The Crown and Maazullah v. State is not the correct view of law.

10. On the facts stated in this case and for the reasons already given, the petitioner, in law, has been rightly convicted of an attempt to commit sodomy. Accordingly, we maintain his conviction.

11. This brings us to the question of sentence. The petitioner was convicted and sentenced on 23rd May 1968, and since then remained in jail, until he was ordered to be released on bail by this Court on 3rd of February 1969. He has served about nine months' R. I. He is a young man and is not a previous convict. In the circumstances, we are of the view that the sentence already suffered would meet the ends of justice and we order accordingly. The petitioner is on bail and shall stand discharged from his 'bail bond. The fine is remitted, and if already paid, shall be refunded to the petitioner. Order accordingly.