AMANULLAH and others vs THE STATE

' This order will dispose of Criminal Appeal No, 1309 of 1999 directed against the judgment passed by Special Judge, Anti-Terrorism Court Sargodha on 20-11-1999 whereby he convicted and sentenced both the appellants under section 12 of Offence of Zina (Enforcement of Hudood)

Ordinance, 1979 to undergo R.I. For 14 years. They were also convicted anti sentenced to 7 years R.I.

Each with a fine of Rs, 5,000 each under section 377, P.P.C. In default of payment of fine to further undergo two months R.I. Each. Benefit under section 382-B, Cr.P.C. Was also awarded to them.

2. Brief facts of the case are that on 2-8-1999 at about 2 p.m. The appellants kidnapped Attique-ur- Rehman a minor boy of under 12 years age from dera Sultan Ahmad Wala in the area of Chak No,2- ML and took him to the dera of Muhammad Arshad Khan accused for subjecting him to sodomy and in consequence thereof committed unnatural lust upon him in the said dera. The accused/appellants were charged under section 12/7/79 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. In which they pleaded not guilty.

3. In order to prove its case the prosecution has examined as many as 10 witnesses. Amongst them P.W.1 is Doctor who Medically examined the victim. Then there is statement of P.W.8 who is father of the victim. Victim himself appeared as P.W.7. Statements of the accused/appellants were also recorded under section 342, Cr.P.C.

4. Learned counsel for the appellants submits that ocular account is contradicted by medical evidence and he has referred to the statement of P.W.1 Dr. Tahir Shafique. He also submits that the Report of the Chemical Examiner is negative. He further submits that both the appellants are minor and he has also read before me that last paragraph of the judgment of the learned Special Judge.

He submits that the appellants are minors and their ages are 13/14 years. Learned counsel has also referred section 7 of Offence of Zina (Enforcement of Hudood) Ordinance. 1979 in this regard.

Learned counsel further submits that appellants have been falsely implicated because there was some previous background of enmity between the parents of both the appellants and of the victim. He adds that no independent witness has been produced in this case. There are only statements of Attique-ur-Rehman examined as P.W.7 and Muhammad Ramzan his father examined as P.W.B. He submits that in fact no case is made out against the appellants.

5. On the other hand learned counsel for the State submits that victim has nominated the appellants in the F.I.R. Being a complainant and also implicated the appellants in his statement before the trial Court but he has no answer to the statement made by the learned counsel for the appellants in regard to the negative report of the Chemical Examiner and same findings given by Dr. Tahir Shafique P.W.1 who had medically examined the victim on the same day at 9-45 p.m..

6. I have heard the learned counsel for the parties. For the just decision of case a portion of statement of Dr. Tahir Shafique P.W.1 regarding the medical examination of the victim is reproduced below:--- "On per rectum examination anus was admitting the index finger with difficulty and pain. On horoscopic examination, examination was painful. There was no tear or injury on the inner annuls mucosa. Mucosa curiosity was normal. Result in opinion of the Doctor most probably the recent act had not been done however the final result would be reviewed after the Chemical Examiner Report.

'Exh. P.A. Was the correct carbon copy of his Medico-legal report which was in his hand and bore his signatures".

' He had received Chemical Examiner's Report No, CE-52/6494, dated 13-9-1999 received on 13-9- 1999 vide despatch No,456/ IRC Hafizwala. According to the above said report the swabs were not stained with semen."

7. A bare perusal of the statement of Dr. Tahir Shafique and specially penultimate portions of this paragraph which are in inverted commas would show that the Report of the Chemical Examiner was negative although, appellants might not have committed carnal intercourse against the order of nature with the victim but according to section 377, P.P.C. Penetration is sufficient to constitute the carnal intercourse. I am not going to except this submission of the learned counsel for the appellants that the appellants have been falsely implicated in this case. Nobody would level such an allegation at the stake of his reputation and specially in District Mianwali where this case was registered. However, as the appellants are minor and keeping in view the report of the Doctor who examined the victim and Chemical Examiner's Report, I take a lenient view while maintaining the conviction reduce the sentence of the appellants awarded under section 377, P.P.C. To two years'

R.I. And maintain the sentence of fine. In default of payment of fine to undergo S.-I. For three months. As far as conviction and sentence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is concerned, same is also reduced to two years R.I. Benefit of section 382-B, Cr.P.C. Already awarded to the appellants is also maintained. Both the sentences would run concurrently. With the above notification, in sentences, this appeal stands disposed of.