' MUHAMMAD AZAM KHAN, C.J.---Through the captioned appeal, the appellant calls in question the judgment of Shariat Court dated 15-10-2010 whereby the appeal filed by the appellant, herein, has been dismissed.
2. A case under section 377, A.P.C., read with section 12, ZHA, was registered at Police Station Dudyal on 26-10-2008 on a report made by respondent No,2. Respondent No,2 moved an application at Police Station Dudyal stating, therein, that his 11 years' old son Rizwan went to the house of his maternal grandfather for delivering milk. On the way back the convict-appellant met him on 12-00 p.m. He tried to give him Rs,.20 which his .Son refused. The convict forcibly took him to an under- construction house of Raja Muhammad Siddique and committed sodomy. His son came back to home and narrated the incident. On this report a case under sections 12; Z.H.A. And 377, A.P.C., was registered.
3. After the investigation a challan was submitted in the Additional District Criminal Court Dudyal on 10-11-2008. The Additional, District Criminal Court convicted the accused and sentenced him to 10 years' rigorous imprisonment under section 377, A.P.C. Along with fine of Rs,.10,000 and in case of non-payment of fine he was to further undergo three months' simple imprisonment. The accused was extended benefit of section 382-B, Cr.P.C., vide judgment delivered on 30-4-2010. The convict- appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir. The Shariat Court dismissed his appeal vide impugned judgment dated 15-10-2010.
4. Raja Niaz Ahmed Khan, counsel for the appellant, argued that the judgment of the trial Court as well as that of the Shariat Court is not maintainable. It was a case of no evidence. The trial Court committed error while convicting the accused. He contended that reasonable doubt appears in the prosecution story. The prosecution has brought three different Medico-legal Reports of victim Rizwan. No explanation for three different Medico-legal Reports has been put forward by the ptosecution. It was argued by the learned counsel that occurrence took place on 12-00 p.m. While the F.I.R. Was registered at Police Station on 16-30 p.m., after a delay of around four and half hours, whereas distance from the place of occurrence to the Police Station is of only five minutes. The delay is material in the case, which was.Not explained. The complainant concocted a story and false case was registered against the appellant due to enmity between the father of accused and the complainant. While attacking upon the prosecution evidence the learned counsel contended that the place of occurrence is stated to be an under-construction house which is situated at a thoroughfare and according to the prosecution a number of young boys were flying kites outside the house. None of the boys, who were flying kites, has been cited as witness. There is no evidence to show that the victim was forcibly taken to the house. All the witnesses are related witnesses. The appellant has specifically alleged that there is old enmity between the father of the appellant and father of the victim. The learned counsel further argued that the whole evidence was not put to the accused in his statement recorded under section 342, Cr.P.C., therefore, the conviction couldn't be based upon the evidence, which was not put to the accused in the statement under section 342, Cr.P.C. Lastly the learned counsel argued that the convict is a young boy. There is no previous history of his involvement in any crime. Due to living with the criminals in Jail for long time, he will suffer morally. He contended that the tender age is a valid ground for considering the case on compassionate ground. If, this Court ultimately reaches to the conclusion that the case is proved, then the appellant is entitled to be released on compassionate grounds while maintaining the sentence already undergone. He referred to the cases reported as Masood Anwar alias Bhattu v.
The State (1987 PCr.LJ 289(2)) and Muhammad Ikram v. The State (1987 PCr.LJ 827).
5. While controverting the arguments, Mr. Muzaffar Ali Zaffar, Additional Advocate-General, argued that the accused is nominated in the F.I.R. Which has been promptly lodged. The delay of four and a half hours is not material in the case because the occurrence took place on 12-Q0 p.m. When the convict released the victim, he went to his house. His father informed his relatives and then went to the Police Station. The time consumed is natural. Moreover the delay is not material on the ground that no father would involve someone in a false case while defaming a young child. He argued that the prosecution proved its case beyond reasonable doubt. The trial Court after going through the whole evidence convicted the accused under law and the Shariat Court concurred with the opinion of the trial Court. The concurrent findings recorded by the trial Court and affirmed by the Shariat Court are based on evidence. These are immune from interference.
6. Sardar Ejaz Nazir, counsel for the complainant, argued that the occurrence is of broad-daylight.
The convict-appellant is known to the victim. The identity of convict is not in doubt. The F.I.R. Was promptly lodged and the case is proved from cogent and reliable evidence. There are concurrent findings of two Courts below. The appeal merits dismissal. He contended that the convict- appellant was 18 years' of age at the time of occurrence. He is not entitled to any leniency.
7. We have heard the learned counsel for the parties and perused the record. According to the prosecution Rizwan, victim, who was of 11 years' age at the time of occurrence, went to the house of his maternal grandfather for delivering milk. On the way back when he reached near the place of occurrence, he saw some boys flying kites. He also stood there for watching kite flying. In the meantime the convict tried to give him Rs,.20 and on refusal, forcibly took him to an under construction house and committed sodomy inside a room. When the convict-appellant left the victim, he went to his home while weeping. He informed his father of the incident, who told the incident to his relatives and filed a report at the Police Station. The victim was medically examined by Dr. Anjum Shahzad, CMO, Tehsil Headquarter Hospital Dudyal. He issued a preliminary report. In the preliminary report the Doctor observed that the anus is dilated and tender to touch. He also disclosed that slight bleeding from anal mucose is present. The Doctor took anal swabs and sent the same to the Chemical Examiner. After receiving the report from the Chemical Examiner, he issued final Medico-legal Report. The Doctor reported that sexual intercourse has been committed with the victim.
8. We have considered the argument of the counsel for the appellant that there are three different Medico-legal Reports, therefore, the case is doubtful. The victim was sent to the doctor for medical examination, who prepared a preliminary report and in the report he wrote that he has examined the victim and anal dilation was present. He took anal swabs and sent to the Chemical Examiner. In the other preliminary report he wrote that there is no abrasion or laceration. The external shape of anal is normal and tender to touch. Both the reports were prepared on the same day and final report was delivered on 7-7-2008 when the report of Chemical Examiner, was received. Had there been any contradiction in the reports, then the argument was available to the appellant that Medico-legal Report is not reliable. The Doctor prepared preliminary report and sent anal swabs to the Chemical Examiner. After receiving the report of Chemical Examiner he submitted final report based on the report of Chemical Examiner, therefore, the argument has no force and is repelled.
9. Another argument of the counsel for the appellant is that the F.I.R. Is delayed by four and half hours. This delay is unexplained, therefore, the conviction cannot be passed on the basis of this F.I.R.
We have examined the whole record. From the record it is evident that the occurrence took place on 12-00 pm and when the convict-appellant released the victim, he went to his home and narrated the incident to his father, who filed the report. It may be observed that in our society, such like incidents where family prestige or respect is involved and child of someone is defamed,'people are reluctant in filing reports to the Police. It is a natural course that the father of victim must have consulted his relatives whether, to file report or not and after consultation he filed the report. In the matters of family honors where a child of 11 years can be defamed for whole life, no father will involve an innocent person in a false case. The delay is natural and such delay is not material to the case.
10. The learned counsel for the appellant attacked upon the prosecution evidence and tried to establish that there are contradictions between the statement of victim and the complainant and also that the witnesses are related witnesses and not reliable and no one from the boys, who were flying kites, has been cited as witness. The reappraisal of evidence is not the function of.This Court.
It is the primary duty of the trial Court and the first appellate Court to appraise the evidence. The trial Court after appraisal of the evidence reached to the conclusion that witnesses are reliable. The appellant was convicted on the basis of statement .Of the victim and Medico-legal Report. The trial Court also considered the corroboratory evidence. We have also gone through the judgment of the Shariat Court. The learned Judge in the Shariat Court has fully reappraised the evidence and after reappraisal of the evidence concurred with the judgment of the trial Court. However, for our own satisfaction we have gone through the statements of witnesses. The statements of prosecution witnesses are confidence-inspiring and ring true. As regards the argument of the counsel for the appellant that related witnesses are not reliable, it is not worth consideration because none of the relatives is shown to be the eye-witness of the occurrence. It may be observed that a related witness is as much a competent witness, as any other provided he is not inimical towards accused and has a motive to implicate the accused in a false case, It may be observed that in case of sodomy or zina the solitary statement of victims is sufficient to convict the accused if it is confidence-inspiring. In a case titled Saleem Khan and others v. The State and others (2001 PCr.LJ 503), it was observed as under:- "So far as the second limb of argument in the contention that the solitary statement of the victim was not sufficient to base conviction thereon is concerned, it may he pointed out here that it is not the number of witnesses but quality and credibility of the evidence which is to be considered. In cases of Zina and sodomy, there are generally hardly any witnesses other than the victim, as it is very rare that such offence takes place in view of others or at public place. That is why, the Superior. Courts in this country have attached great sanctity to the statement of the victim and it has been repeatedly laid down that sole testimony of the victim would be sufficient. To base conviction thereon if it inspires confidence. The contention, therefore, has no force."
11. We have also considered the argument of the counsel for the appellant that the whole evidence was not put to the appellant in his statement under section 342, Cr.P.C. We have ourselves gone through the statement of the accused recorded under section 342, Cr.P.C. The whole evidence was put to the convict-appellant. The argument is misconceived.
12. The case against the convict-appellant is proved from the statement of victim, Medico-legal Report and statement of Dr. Anjum Shahzad. The trial Court correctly reached the conclusion that the case of sodomy is proved against the convict-appellant.
13. We have also considered the argument of the counsel for the appellant that the convict is a young boy of tender age. He has no previous criminal history. Due to living with the criminals in Jail for long time, he will suffer morally. He contended that the tender age is a valid ground for considering the case on compassionate ground. If this Court filtimately reaches to the conclusion that the case is proved, then the appellant is entitled to be released on compassionate grounds while maintaining the sentence already undergone.
14. The maximum punishment which can be awarded under section 377, A.P.C., is 10 years' imprisonment. The matter relating to the quantum of sentence came under consideration of the superior Courts in a number of cases and after considering the tender age of the accused, sentence of 5 years' was deemed sufficient to meet the ends of justice. This Court in a case titled Habibullah v. Ghulam Rasool (Criminal Appeals Nos.14 and 17 of 2007), decided on 3-3-2011, where the trial Court in a case under section 377, A.P.C., imposed a sentence of 25 years and the Shariat Court reduced the same to 15 years, declared that maximum sentence under section 377, A.P.C., which may be awarded, is 10 years and not 25 years. That case was proved against the accused- respondent on the basis of statement of victim and Medico-legal Report. The accused committed sodomy with a child of 5-1/2 years. The Court after detailed survey of the case-law reduced the sentence to 5 years with benefit of section 382-B, Cr.P.C. It was observed by this Court as under:-- ".. Therefore, keeping in view the overall facts of the case and legal precedents, we deem that the punishment of imprisonment of five years is adequate to serve the purpose, whereas the punishment of fine is maintained. The benefit of section 382-B, Cr.P.C. Extended to the convict is upheld. Thus, the appeal of the convict appellant stands accepted in the above mentioned terms, consequently the appeal filed by the complainant stands dismissed."
' We have also gone through the judgments referred to by the counsel for the appellant. In the case titled Masood Anwar alias Bhattu v. The State 1987 PCr.LJ 289(2) the convict was sentenced to 5 years' rigorous imprisonment under section 377, PC, on the basis of evidence of victim and Medico- legal Report. The Federal Shariat Court on appeal reduced the sentence of 5 years to 2 years on the ground of young age of the appellant. It was observed by the Court as under:-- "16. Keeping, however, the very young age of the appellant in view, we feel that there is some force in the request of the learned counsel for showing leniency in the matter of sentence. We feel that in the given circumstances the substantive sentence awarded is a bit severe. We accordingly reduce the sentence of imprisonment of the appellant from 5 years to 2 years. The sentence of fine shall, however, remain intact."
' In the other case referred to by the learned counsel for the appellant, reported as Muhammad Ikram v. The State 1987 PCr.LJ 827 the accused was convicted under section 377, PC, to 5 years' rigorous imprisonment. The accused was sentenced under section 377, PC, on the basis of evidence of victim and Medico-legal Report. On appeal,the Federal Shariat. Court reduced the sentence of 5 years to 2 years on the ground of young age of the accused. The accused at the time of occurrence was 18 years of age. The Court observed as under:- "19. However, as far the sentence is concerned, the appellant is a young lad of 18 years. The sentence of imprisonment is therefore reduced to two years, but he shall pay fine of Rs,.5,000 or in default of payment of fine, he shall undergo R.I. For six months. Out of the amount of fine, if realized, rupees three thousand shall be paid to the complainant as compensation. The appellant shall get benefit of section 382-B, Cr.P.C."
Keeping in view the judgment of this Court in Habibullah's case (supra) and other precedents, the age of the convict and the fact that he has no previous record of crimes, we are of the view that a sentence of 5 years' is sufficient to meet the ends of justice. The appeal is partly accepted and the sentence of 10 years is reduced to 5 years, however, the sentence of fine is maintained. The accused shall be entitled to the benefit of section 382-B, Cr.P.C., as extended by the trial Court and maintained by the Shariat Court. The appeal is accepted in the terms indicated above.