' ASSADULLAH KHAN CHAMKANI, J.---This judgment will dispose of Criminal Appeal No. 17 of 2012 and Criminal Revision No. 8 of 2012 as the same have been filed against the one and same judgment.
2. Facts of the case are that complainant Mutabar aged about 12/13 years lodged a report that on 22-9-2010 he had gone to the house of his aunt Mst. Palwasha, at khuftan vella, he along with his cousin Anwar Zeb was playing on the thoroughfare, in the meanwhile, Alam Khan son of Bashir came and joined them. Alam Khan attempted to catch Anwarzeb but in vain, however, he caught hold of him and took him to the nearby field and gave him his penis in his hand. He tried to put out his shalwar but in the meanwhile his cousin Anwar Zeb and his aunt Mst. Palwasha came and the accused on seeing them ran away. The occurrence was witnessed by both of them and, as such, case F.I.R. No.204 dated 23-9-2010 under section 377/ 511, P.P.C. Was registered at Police Station Kabal, Swat.
3. After registration of case and completion of the investigation, challan was submitted in the Court for trial. Learned trial Court, after conclusion of the trial and hearing the arguments of parties, convicted the accused-appellant under section 511, P.P.C. And sentenced to undergo three years'
R.I. With a fine of Rs. 6,000 or in default to undergo S.I. For three months.
4. Feeling aggrieved the appellant filed Criminal Appeal No. 17 of 2012 against his conviction while complainant side filed Criminal Revision No. 8 of 2012 for enhancement of the sentence.
5. Learned counsel for the appellant-convict argued that the judgment of learned trial Court is against law and facts which is the result of misappreciation of evidence on record. He argued that there is delay in lodging of report, therefore, the question of deliberation and consultation cannot be ruled out. He argued that the evidence furnished by the complainant as P.W.3 and Anwerzeb as P.W.4 are not inconsistent and are full of contradictions. He argued that from the content's of report and evidence produced by the prosecution offence under section 511, P.P.C. Has not been constituted. He argued that the prosecution has miserably failed to prove its case against the appellant-convict, therefore, the sentence is liable to be set aside and the appellant/convict deserves acquittal.
' Learned A.A.-G. Appearing on behalf of the State and learned counsel for complainant argued that the appellant is directly charged by the complainant-cumvictim in the F.I.R. For an attempt to commit sodomy with him which is supported by the statement of eye-witness P.W.4 He argued that the victim is aged about 12/13 years of age and his statement is cogent, consistent and convincing and in spite of lengthy cross-examination it could not be shattered, therefore, his statement alone is sufficient for conviction of the accused. They contended that accused- appellant has also been previously involved in such like cases and has been sentenced and his conviction has also been upheld by this Court. He finally submitted that the defene failed to prove any enmity between the accused and the complainant; therefore, the sentence awarded to the accused by the trial Court may be enhanced.
6. Arguments of learned counsel for the parties were heard and record of the case perused.
7. No doubt, there is delay in lodging of the report but delay in such like cases is not fatal to the prosecution case especially when the identity of appellant-convict is not doubted and when there is other sufficient evidence on the record which established the guilt of convict-appellant. Even otherwise, the people avoid the glare of undesired publicity and the parents in such like cases feel their disgrace and humiliation to which they were put to by the accused.
8. A careful examination of the statement of victim Mutabar Khan shows that he has narrated the occurrence in detail, It is consistent and rational and it is unbelievable that a boy of 12/13 years could make out a false case to involve the appellant or that he could substitute the accused for someone else. The complainant has fully implicated the accused for commission of attempt of unnatural offence with him. The version of complainant has further been corroborated by the eyewitness Anwarzeb.
9. It is undisputed that the victim of the occurrence namely Mutabar at the time of occurrence was aged about 12/13 years, who did not carry any grudge or malice against the appellant to falsely implicate him in the case. The accused has attempted to commit sodomy with the complainant.
The complainant (P.W.3) and the eye-witness Anwarzeb P.W.4 were subjected to lengthy cross- examination by the learned defence counsel but nothing damaging aspect was extracted from their mouth. Both the witnesses are reliable and trustworthy and cannot be discredited in any manner whatsoever while the contradictions pointed out by the learned counsel for the appellant would not make the whole case unbelievable rather it could very easily be ignored.
10. The contradictions referred to by the learned counsel for the appellant are not fatal to the case of the prosecution being minor on all the important issues and facts, particularly, when no enmity was shown between the parties and the statement of complainant was fully supported by the eyewitness and Investigating Officer. Reliance in this regard is placed on the cases of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 and Rana Shabaz Ahmad and 2 others v. The State 2002 SCM R 303 wherein it has been held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence.
11. As far as the submission of learned counsel that the offence committed has not come under the domain of 377/511 P.P.C. Is concerned, though, "attempt" has not been defined anywhere in the Penal Code, but to constitute an attempt, it is necessary that the offender should take every step, and should do all that is necessary to commit the offence attempted, but the offence remains short of commission on acc,ount of some interruption from outside. In the present case, as per statement of complainant, the accused gave his penis in the hand of the complainant and was making struggle to put out his shalwar, in the meantime, his cousin Anwarzeb and aunt Mst.
Palwasha came and the accused-appellant on seeing them fled away from the spot. So, the offence remained short of commission on account of arrival of the eye-witnesses. Had the eye- witnesses been not arrived, the appellant would have completed the commission of offence of sodomy. Besides the above, the antecedent of the accused-appellant is not good as earlier he was convicted for the offence under section 377, P.P.C. In another case by the trial Court and his conviction was maintained by this Court.
12. As far as criminal revision for the enhancement of sentence is concerned, the punishment provided for section 377, P.P.C. Shall be imprisonment for life, or with imprisonment 9f either description for a term which shall not be less than two years nor more than ten years and shall also be liable to fine. Since, the trial Court has convicted and sentenced the appellant under section 511, P.P.C. For three years imprisonment and also imposed fine, which is sufficient.
13. In the light above discussion, I am of the firm view that the impugned judgment does not warrant any interference, which is maintained. Therefore, Appeal bearing No.17/2012 and Criminal Revision No.8 of 2012 are dismissed.
Appeal/.