1988 PLP 1648 (SCMR)

SHAFIUR RAHMAN, J.‑‑The State has filed a direct appeal under section 12 of Special Courts for Speedy Trials Ordinance 1987 (Ord. II of 1987) seeking enhancement of the sentence awarded to the respondent Muhammad Asghar aged about sixteen years on his conviction under section 377, P.P.C. and section 304, Part II, P.P.C. For conviction under section 377, P.P.C. he was sentenced to 10 years' R.I. and a fine of Rs.10,000 or in default two years' R.I. For conviction under section 304, Part II, P.P.C. he was sentenced to 10 years' R.I. and a fine of Rs.10,000 or in default two years' R.I. Rs.15,000/‑ out of fine recovered was ordered to be paid to the father of Abbas Ali, the victim. The sentences of imprisonment were ordered to run concurrently. The facts of the case, in brief, are that on 11th of June, 1987 at about 2‑30 p.m. Muhammad Iqbal (P.W.8), an uncle of Abbas Ali deceased, saw Abbas Ali aged 8 years in the company of Muhammad Asghar alias Pappu. Shortly thereafter, he heard the alarm of Abbas Ali coming from the house of Muhammad Asghar alias Pappu, the convict. He knocked at the door but none opened it. Tariq (P.W.9) and one Javid Akhtar also arrived on the scene. When the door was not opened, Tariq (P.W.9) and Muhammad Iqbal (P.W.8) managed to scale over the intervening wall of the house of Tariq (P.W.9) and entered that of Muhammad Asghar, the respondent. They were able to open the door and found in the room both Muhammad Asghar and Abbas Ali naked. Abbas Ali was bleeding from the anus. The respondent managed to escape from there. Muhammad Iqbal waited for the father of victim Abbas Ali to arrive there but he did not .whereupon he proceeded to police post for lodging the report but on the way he was met by Muhammad Younis Khan, A.S.I. (P.W.10) with whom he lodged the report about the occurrence at 7 p.m. The victim Abbas Ali was examined by Dr. Manzoor Hussain (P.W.1) who found visible traces of sodomy having been committed, a tear 1 c.m. x c.m. x c.m. x muscle deep at the level of 12 O'clock, an abrasion 2 c. m. x 1 c. m. at 6 O'clock position of anus. This was apart from vomitting and urine retention. He advised the admission of Abbas Ali in the hospital but those who had brought him, took him away after his medical examination. He expired the next morning at 7‑30 a.m. at his house. Dr. hl. Nasir Rana (P.W.2) performed autopsy and found the cause of death to be shock and heamorrhage taking place as a result of the sodomy committed on him. Dr. Khalid Shafqat Cheema (P.W.3) had examined Muhammad Asghar alias Papuu and reported that he was fit to commit sexual intercourse and had no injury on his private parts. At the trial, apart from the three doctors who had examined the victim and the respondent, Dr. Muhammad Khaliq (C.W.1) was examined for determining the age of the respondent and he reported that he was about sixteen years of age and his penis was of normal growth. The certificate of birth (Exh.D.A.) was also produced at the trial which showed the convict to be 15 years and 3 months of age at the time of occurrence. The respondent denied having committed the offence, or to have been present in the house at the time of occurrence. According to him his maternal‑uncle Riaz was in the house. He produced the birth record showing his date of birth to be 10‑3‑1972. The trial Court found the explanation of the delay of a few hours in lodging the report satisfactory though it was not got recorded 'anywhere while lodging the report. It considered the evidence produced by the prosecution to be creditworthy because it was natural and consistent. The Special Court examined at some length the contention of prosecution that the offence committed by the respondent was culpable homicide amounting to murder and after examining all the facts and the law, came to the conclusion that it .vas a simple act of sodomy and in committing that offence neither the mode employed nor the intention exhibited was one of committing murder or of causing the death of the victim. The death, according to the learned Judge, was due to shock and on account of absence of proper medical treatment as was advised by the doctor. On this view of the matter, the offence committed by the respondent, was held to be one under section 304, Part II, P.P.C. and not under section 302, P.P.C. Mr. Khalil Ramdey, the learned Advocate‑General, has in support of the appeal, contended that it was a fit case where the maximum sentence awardable under section 377, P.P.C. should have in fact been awarded and not the lesser sentence of 10 years' R.I. The learned Advocate‑General has also contended that in any case, the sentences should not have been ordered to run concurrently. It was, according to the learned Advocate‑General, a callous act on the part of the respondent which had resulted in the death of Abbas Ali, an innocent boy of 8 years. We find that the memo. of appeal is directed at establishing that it was an offence under section 302, P.P.C. and not one under section 304, Part II, P.P.C. However, the learned Advocate‑General has not adopted what is written in the memo of appeal and has instead, as pointed out, satisfied himself with the two contentions noted above. We find that so far as the sentence awarded under section 377, P.P.C. is concerned, the trial Court has committed no legal error such as may require interference in appeal. The respondent' age appears to be between 15 and 16 and that of the victim about 8 years. The consequence apart, there is nothing in the manner or the circumstances to necessarily call for the maximum sentence. It is unfortunate, however, that this act of the respondent resulted in the death of the victim Abbas Ali. For this, the convict has been separately sentenced to 10 years' R.I. It is the maximum that could be awarded for conviction under section 304, Part II, P.P.C. The only question that remains for examination is whether the two sentences should have been made consecutive and not concurrent and require interference in appeal. The entire facts and the background of the occurrence make it clear that it was the offence of sodomy and sodomy alone which the respondent intended ‑and committed. The death wasps the consequence which could not have been intended but known as likely result on a child of that age, and that too because it sin happened. We do not consider that any case is made out for interference in appeal. The appeal is, therefore, dismissed. M.I. /S‑165/S Appeal dismissed.