This Criminal Appeal No, 458/2002 has been filed against judgment dated 18.11,2002 passed by learned Senior Civil Judge/Judicial Magistrate Karak whereby Saleh Shah son of Amanullah resident of Sarat Khel, Tehsil and District Karak has been convicted and sentence under Section 377 PPC for 8 years R.I. and fine of Rs, 2000/- in default whereof to further undergo S.I. for a period of two months with benefit of Section 382-B, Cr.P.C. Criminal Revision No, 141/2002 has also been filed for enhancement of above said sentence on behalf of complainant. In intend to dispose of the appeal and revision by this common judgment.
2. Wakil Jan complainant, is a barber by profession and runs a barber shop at 'Tor Merch' Adda Karak. On the night of occurrence i,e, 12.6.2001 when the complainant returned home at about 1700 hours, he came to know that his grandson Gohar Mehmood (5/6) has been subjected to the act of sodomy by his co-villager, Saleh Shah appellant in his `baithak' in village Sarat Khel, Karak. The complainant also found blood oozing out of the anal area of the minor. The complainant took the minor to Police Station Sabir Abad the same night and made report (Ex. PA) at about 2230 hours.
IHC (Nimatullah (PW.1) recorded the report. The delay in lodging of the report was stated to be due to, non-availability of traffic. IHC Nimatullah (PW) prepared injury sheet (Ex. PW.1/1) of the victim and sent him to Civil Hospital, Sabir Abad for medical examination. On receipt of F.I.R. ASI Umar Sadiq Khan (PW. 9) proceeded to the spot on 13.6.2001, prepared site-plan (Ex. PW.9/1) at the pointation of Gohar Mehmood victim and Hamidullah PW, took into possession shirt (P.1), Shalwar (P.2) of the victim and a phial (P.3) having vaginal swab vide recovery memo (Ex. PW.2/1) in the presence of marginal witnesses. The above mentioned articles were sent to F.S.L. Peshawar for report. He placed on file report (Ex. PW.9/2) of the laboratory. He also applied for issuance of warrants of arrest under Section 204 Cr.P.0 and proclamation under Section 87/88 thereof against the appellant. The appellant was formally arrested on 29.8.2001 when he' appeared in Police Station stating that at the relevant time he was not present in the village and had gone out of the village for labour. Case against the appellant was put in Court on 11.10.2001. Dr. Asif Iqbal Medical Officer RHC Sabir Abad examined as C.W. 1 stated that vide his report (Ex. CW.1/1) dated 30.8.2001 he examined Saleh Shah accused and found him potent.
3. Prosecution in order to prove its case and bring guilt home to the accused produced nine witnesses in all.
4. Dr. Zafrullah Khan (PW.7) Medical Officer Rural Health Centre, Ahmad Abad, on 12.6.2001 at 11.40 p.m. examined Gohar Mehmood minor and noted the following injuries:--
1. 1" perineal tear, already stitched at the posterior part of anus.
2. Abrasions, Bruises with tenderness all around the anal margin and adjacent perineum.
5. The accused in his statement recorded under Section 342, Cr.P.C. refuted the prosecution allegations and claimed to have been charged falsely on account of strained relations between the two families over engagement of the sister of the accused with brother of the victim. He also denied abscondence and stated that at the relevant time he was not present in the village and on learning about the false charge he voluntarily appeared before the police, to explain the position.
He led no evidence in defence.
6. Believing the statement of the victim, medical evidence furnished by Dr. Asif Iqbal and Dr. Zafrullah Khan and attending circumstances of the case, the learned trial Court came to the conclusion that prosecution has succeeded to establish its case against the accused. He convicted and sentenced the accused as noted above.
7. I have heard Mr. Suhail Akhtar, Advocate for the appellant, Mr. M. Tariq Javed, Deputy Advocate General for the State and Mr. Muzammil Shah Khattak, Advocate for complainant Wakil Jan. I have also gone through the material available on the file with their assistance.
8. Learned counsel for the appellant, bitterly criticised the impugned order, contending, inter alia, that the conviction and sentence of the appellant passed by the learned trial Magistrate is illegal as contemplated/provided under the Code of Criminal Procedure and that prosecution has brought nothing on record to implicate the appellant with commission of offence. The learned counsel urged that the impugned order cannot be allowed to remain intact and that appeal may be remanded back to the trial Court for proper adjudication. He relied on case captioned Amir Fida Peracha vs. Wajahat Ikram and another (1997 P.Cr.L.J. 449 Lahore).
9. On the contrary, learned Deputy Advocate General maintained that the defect pointed out by the learned counsel for the appellant in the impugned judgment regarding quantum of sentence, is curable in terms of . Section 537, Cr.P.C. and this Court has ample powers under Section 423(d)
Cr.P.C. to deal with the matter; and decide the same without making. an order for remand.
10. Having heard the arguments and submissions rendered by learned counsel for the parties with reference to the material available on record I find that there is sufficient evidence on record to connect the appellant with the guilt and prosecution has succeeded to establish its case beyond reasonable doubt. It is not denied that in such like cases like the one in hand, the solitary word of the victim corroborated by medical evidence is considered sufficient to form basis of conviction of an accused-person. In the instant case, the appellant is directly charged in the report for having committed the act of unnatural offence with his co-villager Gohar Mehmood, a minor boy of 5/6 years of age. The statement of the victim is duly corroborated by the medical evidence and the motive shown for false implication hardly appeals to reason.
11.Adverting to the question regarding quantum of sentence I find that same is not a legal sentence awarded to the appellant and warrants interference of this Court without remanding the matter to the trial Court.
Accordingly the sentence of eight years awarded to the appellant is reduced to six years R.I. The sentence of fine is proper and calls for no interference. The same is maintained. The appeal is disposed of in the above terms. The connected Criminal Revision fails which is hereby dismissed.