' The appellant Ghaffar Shah (aged 30 years) was convicted by a learned Magistrate Section 30 at Multan of offences under sections 377 and 363 of the Pakistan Penal Code for having committed carnal intercourse with Muhammad Amjad, a boy of 41 years and kidnapping. For the offence under section 377, P. P. C. He was awarded a term of rigorous imprisonment for five years while under section 363 he was asked to undergo rigorous imprisonment for 3 years. He was also directed to pay fine of Rs, 500 on each count, or, in default, to receive further rigorous imprisonment for six months. The sentences of imprisonment were ordered to run concurrently.
2. The victim of the assault Muhammad Amjad (P W 5), a boy of 11 years and student of 5th Class, was the son of Muhammad Arshad Sheikh proprietor of a shop known as "Farooq Photostat" in Multan Cantonment. The appellant, a newspaper hawker who used to supply the newspapers at the shop, became acquainted with the boy. It was the case of the prosecution that on 8th May, 1977, the boy, in the absence of his father who was away to Rawalpindi, was sitting on the shop. At about 11 a. m., the appellant went there and pursuaded the boy to accompany him on the promise that he would get him some good story books. He took the boy on a bicycle to a locked house at Nawan Shehar outside the Cantonment. In the house, he put him on a bed and started kissing him.
The boy protested but he quietened him with a threat and pulling down his shirts subjected him to carnal intercourse. When the boy raised a cry in pain, he left him with a warning not to disclose about the incident. Thereafter, be took him to a sweetmeats shop and offered him some sweets which he declined. He, then took him on a bicycle to Bominjee Chawk in the city and left him there with a further warning against disclosure. From there, the boy returned to his shop and narrated the incident to Dr. Hayat Mahmood (P.W. 4) who was already present there. The doctor took him to Police Station Cantt. Multan where he lodged F.I.R. (Exh. P E) on the same day at 1-30 p. m. Recorded by A.S.!. Mirza Abdul Beg (P. W. 6), The boy also produced five story books P. 1 to P. 5 from his shop before the A.S.I. Who took the same into his possession vide memo. Exh. P D also witnessed by Muhammad Yactoob Rana (P. W, 3) and Dr. Hayat Mahmood (P. W. 4).
3. Dr. Allah Nawaz (P. W. 2) on the same day at 4 p. m. Examined the boy and found the area around the anus congested and tender. He found the shorts to be stained with semen. He took three swa bs, two from the inner and one from the outer side of anus and sent the same together with the shorts to the Chemical Examiner. According to the Chemical Examiner's report Exh. P H, two of the swa bs and the shorts were found to have been stained with semen.
' The doctor on 9th May, 1977 also examined the appellant and found him fit to perform sexual intercourse.
4. The appellant pleaded not guilty and denied the allegations against him. He alleged that a false case was maneouvred by Dr. Hayat Mahmood (P.W. 4) who felt annoyed with him on account of the fact that be had once seen him kissing the complainant's mother and threatened to talk about it to the husband. He tendered copies of two judicial orders Exh. D A and Exh. D B and also examined three witnesses in his defence.
5. The case of the prosecution rests entirely upon the testimony of the prosecutrix and the medical evidence. Muhammad Amjad (P. W. 5) fully supported the prosecution case consistently with the statement given in the first instance. He also stated that the appellant first took him to a bookshop and purchased for him books Exh. P1 to P 5; and that at the house, he also exhibited some obscene photographs. According to the learned counsel for the appellant these were improvements but to my mind, they are mere details which do not affect the prosecution case in any manner.
' Muhammad Amjad (P. W. 5) was just a boy of 11 years. He had no against the appellant. Rather, he was a friend as also indicated by the fact that the appellant offered him books and he accompanied to get the same. There appears to be no reason why he should falsely accuse the appellant of such a shameful charge which was equally humiliating not only for him but his parents as well. His testimony also stands fully corroborated by the medical evidence. The learned counsel for the appellant attempted to argue that there was no penetration. But, in the face of the medical evidence, he gave it up'. Thus there was no manner of doubt that the appellant subjected the boy to carnal intercourse.
7. The evidence produced by the appellant in defense does not help him. The documents Exh. DA and Exh. D B are not jermane as their subject matter pertains to a period much after the occurrence. Of the defence witnesses, Syed Abdur Rehman Shah (D. W. 1) was a khalazad and Amir Shah (D. W. 2), a real brother of the appellant. Both of them have only stated that they lived together with the appellant and his family in the same house. Muhammad Shafi (D. W. 3), a neighbour, also made a statement to the same effect. The inference probably, sought to be drawn was that the appellant could not have possibly taken the boy for the purpose to a house inhabited by a large number of people. But, in my view, no such conclusion can legitimately be drawn in the face of the positive assertion of the boy that at the relevant time, the house was lock- ed. The appellant led no evidence whatsoever to substantiate his allegation against Dr. Hayat Mahmood (P. W. 4). Even otherwise, it is not conceiveable that he would have used the boy in such a manner to settle his own score with the appellant, if any, which he could have done otherwise easily.
8. For the reasons stated above I am fully satisfied that the appellant has rightly been convicted of the offence under section 377, P. P. C. The sentence too, in the circumstances of the case, requires no interference by this Court.
9. The question whether the conviction for kidnapping Was on the facts correct, however, needs serious consideration. In Muhammad and Munir Ahmad v. The State (1) it was laid down as under :- "The charge being one of kidnapping from lawful guardianship, it is necessary to fix the point at which the boy lost control over his own movements and became subject in that respect to the authority of the alleged kidnappers."
' On the facts of that case it was held that :- "In the movement from one park to another, we are unable to find the necessary ingredients for holding that the boy was not a free person. Thus, for instance, if he had been left by the others in Ayub Park , it would not be, in our view, possible to say that the persons responsible for taking him to Ayub Park were guilty of kidnapping him from lawful guardianship, since it would have been possible for the boy to return home the same evening. But when he was taken from Ayub Park to the bus-stop that being a place from which movement was possible to a number of places outside Rawalpindi and since eventually he was taken outside Rawalpindi, an action may be seen of which the result was likely to be and eventually was that the boy would not be allowed to return home the same evening.. At that stage, it would be possible to say that the boy was taken out of the lawful guardianship of his father."
10. In the present case, the boy also knew the appellant. They were rather friends. It is in evidence that the boy went along with the appel- 4 lant to the book shop on his own bicycle while the appellant was on his own. From the book shop, he accompanied the appellant to the house where sodomy was committed on him. Thereafter the appellant took him to a sweetmeats shop and then left him at Bominjee Chawk wherefrom he returned to his own shop. Thus, on the above facts, it cannot be said that the appellant exercised such a control over the movements of the boy as not to enable him to return to his house at will. In this view of the matter, it is not possible for me to maintain his conviction under section 363, P. P. C. 1, therefore, set aside his conviction and sentence on that charge. However, the conviction and sentence under section 377, P. P. C. Shall stand. The appeal is disposed of accordingly.
(I) PLD 1967 SC 363