GHULAM MUHAMMAD Versus THE STATE

Ghulam Muhammad son of Ghulam Mustafa, aged 20 years, has been convicted under section 377, P. P: C. for committing sodomy on Ziaullah (P. W. 2), aged 12 years, and was sentenced to five years' rigorous imprisonment alongwith 15 stripes vide judgment, dated 12th September, 1977 of the Magistrate, Section 30, Mianwali. His appeal is being disposed of by this judgment.

2. The occurrence took place on 10th March, 1977 at 5-00 p.m. in the dry bed of river Indus within the area of village Daudkhel, at a distance of 3k miles from Police Station Daudkhel, District Mianwali. F. I. R. Exh. P, A. was lodged by Ziaullah Y. W. victim on 11th March, 1977 at 7-00 p. m and it was recorded by Muhammad Hayat S. I. W. 5.

3. The prosecution produced Ziaullah P. W. 2, the victim, himself and Mamrez Khan P. W. 3 as eye-witnesses of the occurrence. Mamrez Khan P. W. stated before the trial Magistrate that he did not know any thing about the occurrence and consequently he was declared hostile. Three other eye-witnesses were cited in the F.I.R. namely Shah Behram, Sohna Khan and Muhammad Anwar but they were given up as won over. Thus the prosecution version is only being supported by the victim Ziaullah P. W.

4. In the F. I. R. the occurrence was reported to have taken place in the following manner: Ziaullah P. W. alongwith Sohna Khan and Shah Behram (not produced) was coming back to his house after grazing cattle in the dry river bed of Indus. When these boys were on their way the appellant came there and got hold of Ziaullah P. W. Thereafter he forcibly committed sodomy on him by untying his shalwar. The alarm of Shah Behram and Sohna Khan attracted Muhammad Anwar (not produced) and Mamrez Khan P. W. 3 to the spot. On seeing the P. Ws. the appellant ran away. The occurrence was witnessed besides Ziaullah P. W. by Mamrez Khan P. W. as well as Shah Behram. Sohna Khan and Muhammad Anwar. Ziaullah P. W. reached his house and narrated the whole story to his father Khan Muhammad D. W.

1. The next day, i.e. on 11th March, 1977 Khan Muhammad D. W. 1 took Ziaullah P. W. to the Police Station and his statement Exh. P. A. was recorded by Muhammad Hayat, S. I. P. W.

5. Before getting his statement recorded Ziaullah P. W. was medi cally examined by Dr. Jamshed Alam P. W.

1. In the opinion of the Medical Officer sodomy had been committed upon Ziaullah P. W. The Medical Officer stated in the cross-examination that Ziaullah P. W. was not used to it and, therefore, sodomy had been committed upon him against his will as there were two lacerations present on the anus and faecal matter was also present around the anus. He took anal swabs of Ziaullah P. W. and despatched them to the Chemical Examiner. The report of the Chemical Examiner is to the effect that these were stained with human semen.

The same Medical Officer also medically examined the appellant at 5-00 p.m. on 29th March, 1977 and in his opinion the appellant was fit to perform sexual intercourse.

6. The appellant, in his statement before the trial Court denied having committed the act and stated that he had been falsely implicated due to enmity. But he did not produce any evidence to show as to what was the basis of enmity. He produced Khan Muhammad D. W. 1, the father of Ziaullah P. W. in defence. But the statement of Khan Muhammad D. W. does not improve the case of defence in any sense of the term Khan Muhammad D. W. only stated that Ziaullah P. W. came to his house and informed him that sodomy was committed upon him and he mentioned to him the name of the appellant for having commit ted sodomy on him. Then he took the boy to the Police Station where he narrated the story and his statement was recorded by the police. He stated in the cross-examination that he cannot say that his son had got registered the case against a wrong person,

7. I have heard learned counsel and perused the record. The prose cution version is based on the statement of Ziaullah P. W. which is being corroborated by the medical evidence as well as circumstantial evidence. The act of sodomy was committed on the victim by the appellant. The victim went to his house and informed his father. His father was not an eye-witness of the occurrence. He took his son to the police station where the statement of the son was recorded. Before recording his statement, the boy was medically examined and the medical evidence corroborates his version. Learned counsel submitted that the only other eye-witness of the occurrence produced was Mamrez Khan P. W. who did not support the prosecution version. Similarly it was argued that Khan Muhammad D. W. appeared as a defence witness and stated that he could not state as to whether his son got the case registered against a wrong person. On the basis of this evidence it was submitted that the appellant had been falsely implicated. But there is no force in the argument of learned counsel. Khan Muhammad D. W. has clearly stated that his son came to his house and informed his father that the appellant had committed sodomy on him and thereupon Khan Muhammad D. W. took him to the polite station where the statement of the boy was recorded. He was not an eye-witness of the occurrence and, therefore, he was correct when he said that he could not say as to whether or not his son had got registered a case against right or wrong person. The next point is that Ziaullah P. W. had no previous enmity with the appellant. There was, therefore, no reason why he should implicate the appellant falsely. Ziaullah P. W. know the appellant because the appellant was the resident of the same village. Consequently, no question of identification was involved. Similarly, according to the medical evidence Ziaullah P. W. was not used to sodomy previously. The statement of Ziaullah P. W. is being corroborated by the medical evidence and I have no doubt in my mind that it was the appellant who had committed sodomy on him. In that view of the matter, the conviction of the appellant under Section 377, P. P. C. was quite proper and is accordingly maintained.

At this stage learned counsel submitted that the appellant had already undergone about 3J years of his sentence and that his sentence be reduced to what he has already undergone. It was also submitted that the sentence of 15 stripes be set aside as the portion of the sentence of imprisonment already undergone was sufficient to meet the ends of justice. I am not inclined to reduce the sentence of imprisonment of five B years' R. I. awarded to the appellant, in the instant case, tinder sec tion 377, P. P. C. However, since the sentence of imprisonment already awarded is sufficient to meet the ends of justice, the sentence of 15 stripes which has already been suspended is set aside. With this modifica tion the appeal is dismissed.

Appeal dismissed, sentence of stripes set aside.