MUSHTAQ AHMAD Versus THE STATE J.V. Gardner , Mian-Muhammad Bashir for the State.

Mushtaq Ahmad appellant (15 years) alongwith Muhammad Ashfaq and Muhammad Mansha was tried by Additional Sessions Judge, Lahore for an Offence of Zina (Enforcement of Hadd) Ordinance, 1979. Vide judgment, dated 12-2-1991 the appellant was convicted under section 377, P.P.C. and sentenced to 3 years R.I. and a fine of Rs.2,000 or in default thereof 6 months' R.I. His two co-accused were acquitted. He has appealed.

2. Akhtar Ahmad (P.W.1) reported the matter to the police on 11-2-1988 with the allegations that in the evening of the previous day when he had left his premises and his son Shahzad Akhtar, the victim (P.W.4) was on the upper storey of the building m Shahalam Market, he was caught hold of by the appellant and his two co-accused and in a room the appellant had put his penis in his mouth and discharged. The complainant claimed that he had gone to Munshi Hospital, did not return to the house for the night and was informed about the occurrence by his son Shahzad in the morning.

3. The prosecution case was supported by Shahzad Akhtar (P.W.4), Muzaffar Iqbal (P.W.5) who heard the cries of the former and saw the appellant and his co-accused going down the stairs whereafter the victim was also weeping and told him about the occurrence. Dr. Imran Mirza had medically examined Shahzad Akhtar and did not observe any marks of violence on his person Shahzad gave him history of vomitting, but he further had informed the doctor that he had taken water and food after the occurrence.

4. Learned counsel for the appellant contended that the F.I.R. had been delayed, there was no eye-witness to the occurrence and victim who was a young boy could not be believed. From the statement of the witnesses there does not seem to be any previous enmity or ill-will between the complainant family and the appellant. Shahzad though young specifically stated that the appellant had put the penis in his mouth in the room. When the cries were heard by Muzaffar Iqbal (P.W.5) he ran upstairs and saw the appellant and his co-accused going down the stairs and was told about the occurrence by Shahzad. The complainant has explained the delay in lodging the F.I.R. inasmuch as he had gone to the hospital where he had to stay for the night and had returned therefrom and was told about the occurrence by the boy and then he lodged the F.I.R. The charge was, therefore, correctly held proved against the appellant.

5. The appeal against conviction, therefore, fails and is hereby dismissed. However, in view of the young age of the appellant the sentence is reduced to 2 years' R.I. and a fine of Rs.100 or in default thereof one month's R.I. The appellant would have the benefit of the provisions of section 382-B, Cr.P.C.

S.A./M-2912/L Order accordingly