AMEER UMAR vs The STATE

ORDER

1. ANWARUL HAQ, J. -The petitioner, Ameer Umar, was convicted by a learned Magistrate at Mianwali under section 377, P. P. C., and sentenced to undergo rigorous imprisonment for a year and a half.

2. The conviction as well as the sentence have been upheld in appeal and revision by the Sessions Court and the Lahore High Court respectively. The petitions: now seeks leave to appeal.

3. It was alleged against the petitioner that on 27-9-1973, be had taken away the minor boy Muhammad Khan (r. W. 4), aged between 8 to ten years, when he was playing with some other children, and committed sodomy on him near a place called the Chashma. The playmates of Muhammad Khan informed his mother Mst. Noon Bhari (P. W. 3). And she rushed towards the Chashma and saw the petitioner committing the act on her son. On seeing Mst. Noon Bhari the petitioner ran away from the spot. Mo. Noon Bhari informed her husband Ahmad Khan (P. W. 2) who was working at Dhak (Pahar). He came back to big house and then took the boy to Police Station Mochh and lodged the first information report. The child was examined by Dr. Ashiq Ali Chaudhry (P. W. 1) who gave the opinion that the child had been subjected to an act of sodomy. Anal swabs were taken, but the result of the chemical examination was not made available at the trial.

4. The petitioner pleaded not guilty at the trial and stated that be had been falsely implicated owing to enmity. He also produced two witnesses in defence, who did not, however, advance his case in any manner.

5. The trial Court placed full reliance on the testimony of the child Muhammad Khan and his mother Mrt. Noon Bhari. He rejected the plea that the petitioner had been falsely implicated; as be thought that no self---respecting family would like to disgrace their child by a false charge of this kind. He also did not attach any importance to the absence of the result of the chemical examination of the swa bs as he held that the medical evidence was sufficient to establish that penetration had taken place. These findings have been upheld appeal and revision by the Sessions Court and the High Court.

6. It is contended by Mr. Zafar Mahmood, learned counsel for the petitioner, that the absence of the result of the chemical examination of the swabs was fatal to the prosecution case, as an adverse presumption bad to be drawn against the prosecution, thus leading to the inference that if the result had been produced it would have shown that the swabs were not stained with semen. He further contends that the evidence of Dr. Ashiq Ali Chaudhry does not positively establish that penetration bad taken place. He next contends that the learned Magistrate did not comply with the requirements of section 118 of the Evidence Act before proceeding to record the evidence of the child witness Muhammad Khan, as the questions put to this boy by the Magistrate were not sufficient to show that the witness was able to understand the significance of the occasion and the importance of telling the truth. Lastly, learned counsel submits that in any case the petitioner being also very young, namely, a student of fifteen years of age, the sentence of one and a half years was much too severe.

7. After examining the record and hearing the learned counsel for the petitioner, we are of the view that there is no room for bur interference in the matter.

8. We find that although the result of the chemical examination of the anal swabs was not placed on the record of the trial, yet the evidence of Dr. Ashiq Ali Chaudhry was positive on the point that sodomy had indeed beer committed on the child. After giving the extent of the anal injury sustained by Muhammad Khan, the Doctor had given this positive opinion, which was not challenged in cross-examination. The chemical examination of the anal swabs is clearly not the only manner of proving penetration if, medical examination otherwise shows that penetration had been effected. We see no reason to doubt the correctness of the opinion given by Dr. Ashiq Ali Chaudhry.

9. As regards the competence of Muhammad Khan to give evidence at the trial, we find that the learned Magistrate had put certain Question to the boy to ascertain the place where he was being examined and the nature of then employment of his father, and he was satisfied that the boy was sensible enough to give evidence in a Court of law. Section 118 of the Evidence Act doe not prescribe any set of questions to be put in this behalf. All that is required is that the Court must satisfy itself that the child witness is capable of giving rational answers to the questions being put to him. The learned Magistrate has recorded his satisfaction on this point, and we do not see how we can go behind his opinion.

10. The Courts below have placed full reliance on the testimony of Mst. Noor Bhari and of the victim Muhammad Khan. Nothing was brought out in their cross-examination to indicate that they were falsely implicating the petitioner. On this view of the matter, the petitioner was rightly convicted.

11. As regards the senesce, it is not the normal practice or province of chi Court to interfere with a legal sentence. It is primarily for the trial Court, or the appellate and the revisional Courts to assess the appropriate quantum of sentence which would meet the ends of justice.

12. As a result, the petition tails and is hereby dismissed.