MUHAMMAD SABIR vs STATE

Muhammad Sabir appellant has assailed his conviction recorded by Ch. Abdul Razzaq, Additional Sessions Judge, Mandi Bahauddin under Section 377 PPC and sentenced to undergo three years R.I. and fine of Rs, 5000/- or in default to suffer one month S.I. Benefit of Section 382-B Cr.P.C. has been allowed.

2. According to prosecution, Naeem Shahzad aged about 16/17/11 years was present in the field on 7.4.2003. He met with Muhammad Sabir appellant. Muhammad Sabir asked Naeem Shahzad victim to accompany him, whereafter he took him towards north at a distance of two K.M. in the field of wheat-crop. Naeem Shahzad was made to lie on the ground whereafter appellant Muhammad Sabir committed unnatural offence with him. The victim cried with pain which attracted Tasawar Iqbal and Aurangzaib who were present in the nearby fields and cutting fodder. The appellant after having been found guilty during investigation was challaned to Court.

3. Ch. Abdul Razzaq, Additional Sessions Judge, Mandi Bahauddin was entrusted with the trial. He framed charge under two heads i,e, under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for abducting Naeem Shahzad and under Section 377 PPC for committing sodomy with Naeem Shahzad. On trial Naeem Shahzad appeared as PW.2. He gave his age as 16/17 years. He narrated the incident as noted above and as such supported the prosecution version.

Aurangzaib, an eye-witness of the occurrence appeared as PW.3. He supported Naeem Shahzad on all material aspects.

4. Dr. Javed Iqbal examined Naeem Shahzad. He observed as under:-- "On examination of his body the signs of resistence a laceration 2 cm x 1 cm on both knee joints. On examination of cloth according to his statement clothes were changed-before examination. He has taken bath. Therefore no semen or blood or fecal matter on his body. On examination of anal canal there is laceration 2 cm x ii cm at angle 6'0 clock. Anal canal is not patulous."

The rest of the evidence comprises of police officials and formal witnesses. The police officials including Munawar Hussain Shah, PW.6 as investigating officer furnished the details of the investigation carried out by him.

5. On close of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. He denied allegations and came up with the plea that in fact there is political rivalary in the village. As the appellant happened to belong to the rival group of the complainant he had been falsely roped in the present case.

6. The learned counsel for the appellant in support of the appeal addressed arguments in detail.

The main stress of the arguments by the learned counsel was that the alleged victim Naeem Shahzad was a grownup person as admittedly he was aged about 16/17 years. He could not be forcibly or deceitfully taken by the appellant in the fields and that too at a distance of two K.M. from the village. He in support of his argument has referred to the impugned judgment itself whereby the appellant has been acquitted of the charge under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The only charge remains against the appellant is under Section 377 PPC. According to the learned counsel, the site-plan Exh. PF is of significance. The occurrence took place in the middle of the field at point. 'A' as shown in the site-plan. It means that the victim was taken upto the middle of the crop where the alleged offence was committed. The victim did not raise any resistance or obstruction. It appears that he willingly accompanied the appellant upto the point of incident. The prosecution version that the victim raised hue and cry is totally false. If the victim intended to raise alarm he could have done the same the moment he was being taken inside the wheat crop. The story of making hue and cry or the screams by the victim has been introduced in order to establish the attraction of the witnesses. As per report of the Chemical Examiner Exh. PG the anal swabs were found to be stained with semen. It means that the offender concluded the whole act and got ejaculated after accomplishment. The witnesses nearby to them would have rushed to the scene of crime and the appellant could not continue with performance of the act of sodomy. Neither of the witnesses has seen the commission of the crime, therefore, their testimony is untrustworthy of credit. The learned counsel, however, realizing that the statement of victim is supported by the medical evidence as well as by the report of the Chemical Examiner and his statement alone coupled with the said supporting evidence would be sufficient to warrant conviction,, adopted his alternate plea and came forward with the submission that although consent in a sodomy case does not nullify the offence yet the same definitely operates as mitigating circumstance. The victim is not a child. He is a grown up person. As against him the appellant is an old man aged about 58 years. Keeping in view the respective ages of the parties and also the above said circumstances reflecting that the victim was not forcibly subjected to the assault, the sentence of the appellant may be appropriately reduced.

7. The learned counsel for the State has supported the conviction and sentence by asserting that the same is based on cogent and reliable evidence. The prosecution has successfully proved that Naeem Shahzad was subjected to unnatural offence by the appellant. The appellant may be 58 years old but has been found to be potent and capable to perform the act. With regard to reduction of sentence, the learned counsel has not been able to seriously controvert or refute the contention riased by the learned counsel for the appellant.

8. After hearing the parties and going through the evidence as well as the relevant record, it is found that the prosecution evidence mainly comprising of the victim supported by the medical evidence and supplemented by the Chemical Examiner's report has proved beyond doubt that the appellant did commit the offence of sodomy. The element of commission of the offence forcibly or abducting him against his will is lacking. The learned trial Judge has rightly acquitted the appellant of the charge under Section 12 of the Ordinance. The plea set up by the learned counsel that the victim was a willing partner cannot be ruled out. Although consent of the victim in a case of unnatural offence is of no consequence vis-a-vis conviction of the offender yet the same does furnish a mitigating circumstance in favour of the appellant.

9. By taking stock of all the facts and relevant circumstances, the appellant's conviction does not call for any interference. The same is maintained. However, the sentence imposed by the trial Court is reduced from three years R.I. to two years R.I. The sentence of fine of Rs, 5,000/- or in default to suffer one month S.I. is maintained. Benefit of Section 382-B Cr.P.C. as already extended will remain intact.