' The appellants were tried and convicted by Mr. Maqsood Pervez Khawaja Magistrate Section 30, Lahore under section 377, P. P. C. And were sentenced to 7 years' R 1. And a fine of Rs, 500 each and in default of payment of fine to suffer further R. I. For one year. They were also awarded 20 stripes each under section 4 of the Whipping Act. The appellants were also directed to be kept in solitary confinement for a period of 2 months. The amount of fine on realization was to be paid as compensation to Abdul Rauf complainant.
2. Briefly stated the facts of the prosecution case are that on the evening of 10th November, 1975.
Muhammad Ramzan appellant asked Abdul Rauf complainant who worked at his shop as an apprentice to bring the welding rod from Muhammad Shafi appellant. The complainant accordingly went to the house of Muhammad Shafi. The complainant was asked to stay for a while and was offered a cup of tea. In the meantime Muhammad Ramzan and Akram appellants also reached there. Akram appellant threatened the complainant with a knife and forced him to submit himself to carnal intercourse against the order of nature which was committed by all the appellants one after the other. The complainant's father who was looking for the complainant also reached there. The complainant narrated the whole story to him who challenged the appellants which led to a quarrel between them. Their noise attracted some passerby who after hearing the story narrated by the complainant, overpowered the appellants and handed them over to the police who after necessary investigation challaned them and sent up for trial.
3. The learned counsel for the appellants has submitted that he would not challenge the conviction of the appellants as he would only request for reduction of sentence awarded to them. He has stated that the sentence of whipping could not have been legally awarded to the appellants in view of the provisions of section 393 (b) as the appellants had been sentenced to imprisonment exceeding 5 years. The learned counsel for the appellants had further pointed out that the learned trial Magistrate had not kept in view the provisions of section 382-B, Cr. P. C. While awarding the sentence of imprisonment to the appellants. All the three appellants were arrested on 10th November, 1975 and they remained in custody throughout the period of their trial which concluded on 16th May, 1977. The period of about one year and six months of their detention in custody during the trial should have been taken into consideration by the learned trial Magistrate while awarding the sentence of imprisonment to them.
4. The learned counsel for the State has stated that the sentence of imprisonment awarded to the appellants is not excessive in view of the heinousness of offence committed by them but the learned Magistrate should have taken into consideration the period of appellants detention in custody during the trial as contemplated by section 382-B, Cr. P. C.
5. I have considered the submissions made by the :earned counsel for the appellants. The sentence of whipping awarded to the appellants was illegal as they were sentenced to imprisonment for 7 years. According to section 393 (b) an accused who is sentenced to imprisonment for more A than 5 years in not liable to be punished with whipping. The order o sentence of whipping passed by the learned trial Magistrate against the appellants is accordingly set aside. As regards the sentence of imprisonment awarded to the appellants, it appears that the learned trial Magistrate did not keep in view the provisions of section 382-B, Cr. P. C because the period of the appellant's detention in custody during the trial which was about one year and six months ought to have been taken into consideration while awarding sentence of imprisonment to them. In my view a sentence of five years imprisonment to the appellants would have been sufficient to meet the ends of justice because if the period of their detention in custody during the trial were to be taken into consideration the appellants would have remained in Jail for about six and a half years which would have been short only by six months from the term of imprisonment awarded by the learned trial Magistrate.
6. In view of what has been stated in the preceding paragraph this appeal is partly allowed to the extent that the sentence of whipping awarded to the appellants is set aside and the sentence of imprisonment awarded to them is reduced from 7 years' R. I. To 5 years' R. I. Sentence of fine and solitary confinement awarded to them by the learned trial728 Magistrate is maintained.
Muhammad Shafi and Muhammad. Ramzan appellants who are on bail shall surrender immediately to suffer the unexpired portion of their sentence