P L D 1972 Supreme Court 36 (PLP)

Learned counsel, appearing in support of this appeal, has contended that the appellant served out the enhanced sentence of four years' rigorous imprisonment as long ago as the 25th of May 1968, and has since then been enlarged on bail during the pendency of this appeal, presumably to ensure that he does not escape the punishment of whipping in the event of the appeal being dismissed. In view of this lapse of 31 years since his release from jail, the learned counsel contends that the sentence of whipping should not be re-imposed, as the appellant has now settled down, married and has children of his own. His conduct, it is said, has also been good throughout. These are not, however, valid grounds for setting aside the sentence of whipping. If the sentence was lawfully imposed by the High Court, then there will be no alternative left to this Court but to direct that the appellant should suffer the sentence. Learned counsel next contends that the sentence was illegal because there is no evidence on the record that the victim was put in fear of any bodily injury apart from the injury likely to be caused by the commission of the offence itself. The relevant portion of section 4 of the Whipping Act reads, as follows:- "

4. Whoever

(b) compels or induces any person by fear of bodily injury, to submit to an unnatural offence as defined in section 377 of the said 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." It is clear from the wording of the provision, quoted above, that the causing of fear of bodily injury is an essential condition for the imposition of the sentence of whipping, and the fear must be caused at a stage prior to the commission of the unnatural offence itself, in order that it may compel or induce the victim to submit to the unnatural offence. Unless this con dition is satisfied, a sentence of whipping cannot be legally' imposed in an offence of this kind. In this matter we have carefully examined the evidence in this case. The only relevant evidence available on the record is the statement of the boy himself but he only says that is to say, "he frightened me." But he does not say in what way the appellant frightened him. There is no evidence that the appel lant was armed with any kind of weapon or even a stick. In fact, the evidence discloses that the door of the room, where the unnatural offence was committed, was not bolted from inside. In fact, the door of the room was ajar and it is through this opening of the door that the victim's uncle saw the appellant committing the unnatural offence on the victim and attempted to catch hold of the appellant. The appellant bolted seeing the uncle of the victim but he was apprehended. There is again no evidence that the appellant threatened any one of the persons who apprehended him nor was any weapon found with the appellant when he was arrested. It was also elicited from this boy in cross-examination that in the final examination of the 3rd class the appellant had given low numbers to the victim and the victim was promoted only on the intercession of his father and uncle. The fear, in the circumstances, may well have been caused by a similar threat ; if so, this would not be a threat of bodily injury. The learned counsel appearing for the State has not been able to draw our attention to any portion of the evidence which would indicate that any such threat of bodily injury was caused to the victim by the appellant. The High Court also has given no ground for imposing the sentence of whipping except that the victim was compelled to submit to unnatural offence by the appellant and that this was a case in which a truly deterrent sentence should be given so as to serve as pointer to others with similar propensities. Unfortunately, these are not consistent with the provisions of the law and accordingly we are constrained to hold that the sentence of whipping was not legally imposed, however abomin able the appellant's act might have been. This appeal has accordingly to be allowed to the extent that the sentence of whipping must be set aside as being illegal; but apart from this modification of the sentence, the conviction and the sentence of the petitioner are maintained. K. B. A. Appeal dismissed. Sentence modified.