' QALANDAR ALI KHAN, J.---Jibran, accused/appellant, has appealed against judgment and order of learned Additional Sessions Judge-V, Nowshera dated 1.10.2014 whereby he was convicted under section 377, P.P.C. And sentenced to 5 years' R.I with a fine of Rs,50,000/- and in default of fine to further undergo SI for three months. The accused/appellant was, however, acquitted of other charges in the case, and benefit of Section 382-B, Cr.P.C. Was also extended to him.
2. The accused/appellant, mainly, impugned his conviction and sentence on the ground that there was no evidence on record to connect him with the offence and that the complainant had pardoned him in his statement before the court on 28.6.2014. The accused/appellant urged that the medical report did not support version of the complainant because no swab had been taken and sent to the FSL for matching with the accused/appellant's swab.
3. The accused/appellant along with co-accused, Umair, was charged by Kashif, complainant/respondent No,2, for forcibly taking him away on gunpoint and committing sodomy with him. On the report of complaint/respondent No,2, a case under sections 367(A)/377/506/34, P.P.C. Was registered in Police Station Nowshera Kalan vide FIR No, 417 dated 17.5.2013. During investigation, complainant/respondent No,2 was medically examined by Dr. Salik Kashif, who submitted report (Ex.PW 7/1); and recorded statement as PW-7 to the following effect:-- 'On 18.5.2013 at 02.00 a.m., I examined one Kashif aged about 17 years male with history of sodomy which was done three hours back. The patient was walking with difficulty. The patient has cleaned himself before examination. On examination there was slight bleeding from anal orifice. Anal orifice has laceration (fresh) at 12 O'clock and 6 O'clock position. Anal orifice was tight on examination.
Blood present on shalwar"
' The blood and semen stained clothes alongwith anal swab were sent for chemical analysis to the Department of Forensic Medicine and Toxicology, Khyber Medical College, PeshaWar, wherefrom positive report (Ex.PW 7/2) was received. After recovery of a .30 bore pistol, preparation of pointation memo by the Investigation Officer, and completion of investigation, challan was submitted to the court, leading to trial of the accused/appellant along with co-accused, Umair, on charges under section 367-A read with Section 506/34, P.P.C. As well as Section 377, P.P.C.
4. During trial, as many as 10 prosecution witnesses were examined, including the complainant/respondent No,2, brother of the complainant namely Shah Nawaz Khan (PW-3) and Medical Officer (PW-7), besides Investigating Officer and other formal witnesses. Thereafter, 'statements of both the accused/appellant as well as co-accused were recorded under section 342, Cr.P.C., wherein, they declined to be examined on oath or produce defense evidence, except the out of court settlement deed. On conclusion of trial, the learned trial court/Additional Sessions Judge-V, Nowshera found both the accused/ appellant and co-accused guilty of the charges under section 377, P.P.C. And 109 P.P.C., respectively, and besides sentencing the accused/ appellant to 5 years' R.I with fine of Rs,50,000/-, also convicted the co-accused, Umair Khan, and sentenced him to 3 years' RI and fine of Rs, 10,000/- or in default of payment of fine to further one month S.I. The co-accused was acquitted of other charges in the case, and benefit of section 382- B, Cr.P.C. Was also extended to him.
5. The learned counsel stressed on compromise between the parties whereby the complainant pardoned the accused/appellant and in support of his arguments, the learned counsel relied upon the judgments reported as 1997 SCM R 1411 "Ghulam Ali v. The State and another", 1995 M LD 1826 (Lahore) "Muhammad Akram v. The State", and 2013 YLR 1109 (Federal Shariat Court). "Mumtaz Ali v.
The State". While conceding the fact that offence under section 377, P.P.C. Was not compoundable, the learned counsel urged that compromise between the parties can, nevertheless, be taken into consideration for acquittal of the accused. The learned counsel further argued that on merits too, there was no case warranting conviction of the accused/appellant. The learned counsel contended that there was delay in lodging the FIR, admittedly, after consultation and that the accused/appellant was not medically examined to prove the charge of sodomy/unnatural offence against him. The learned counsel also questioned the status of PW-3 as an eye-witness. He pointed out that no recovery was made from the spot and there was no evidence to prove that the pistol i.e, alleged weapon of offence was used in the commission of offence.
6. The learned A.A.G, on the other hand, vehemently argued that not only offence under section 377, P.P.C. Was non-compoundable, but through coherent and confidence inspiring evidence comprising statements of the complainant, eye-witnesses and Medical Officer, the prosecution was able to bring home charge against the accused/appellant. The learned A.A.G added that under the rule of Res Gestae, PW-3 is Res Gestae witness and his testimony, fully corroborating case of the prosecution, cannot be overlooked in view of the judgment of this court dated 27.10.2014 in Criminal Appeal No, 657-P/2012.
7. Apart from the fact that every case has its own peculiar circumstances, which are to be invariably taken into consideration at the time of adjudication, in this case time and date of occurrence given in the FIR are respectively 23.15 hours on 17.5.2013; while the time and date of report are 1.10 hours on 18.5.2013. As such, the delay, if any, of around 2 hours cannot be regarded as inordinate while keeping in view the nature of the offence and circumstances surrounding commission of such offence, together with stigma of this despicable act carried by the victim of the offence for rest of his life. Likewise, consultation with elders of the family by victim facing trauma of unnatural offence will not be that fatal to the case of prosecution by any stretch of imagination.
8. In such like cases, only the statement of victim of the crime coupled with the medical report, confirming commission of sodomy/unnatural offence, is sufficient to make out a case against the accused, let alone the fact that statement on oath of the complainant (PW-2) was fully corroborated by PW-3 i.e, Res Gestae witness who reached the spot immediately after commission of the offence and narrated facts, which, undoubtedly, supported version of the prosecution. It is something beyond comprehension that a young boy of 16/17 years would invite such unsavory stigma in his youthful age and his elder brother would lend him unequivocal support, when there is no proof with regard to ill will or malice on the part of the complainant or prosecution, rather the accused/appellant and his co-accused proudly stated in their statements before the court that they have reached out of the court settlement with the complainant. Though it is in the statement of the accused/appellant and co-accused that they had satisfied the complainant about their innocence, but there is nothing either in the settlement deed or in the statement of complainant to show that accused satisfied the complainant about their innocence, except the statement to the effect that the matter was patched up between the parties through intervention of the local elders.
9. In such a situation, when statement on oath of the complainant, his brother, Shah Nawaz (PW-3) are coherent and confidence inspiring and receive corroboration from the medical report showing commission of unnatural offence/sodomy with the complainant, and there was nothing on record to establish innocence of the accused, the learned trial court was justified in brushing aside compromise between the parties in non-compoundable offence. Needless to say that in none of the cases cited at the Bar by the learned counsel for the accused/appellant, accused were acquitted, rather compromise along with other circumstances of the case prevailed only for reduction in the quantum of sentence. On the other hand, the case cited at the Bar by the learned A.A.G. Stood at a lower pedestal as complainant in that case was not examined in the court nor mother of the victim reported the incident, and testimony of the Res Gestae witness was made basis for conviction, which was upheld by this court vide judgment dated 27.10.2014. Moreover, unlike this case, the report of FSL was negative in the cited case.
10. After considering all the relevant facts, evidence on the record and submissions of learned counsel for accused/appellant and learned A.A.G, no escape appears from this conclusion that the learned trial court correctly found the accused/appellant guilty of the charge under section 377, P.P.C. And convicted him there-under to lesser imprisonment for 5 years' R.I. Instead of life imprisonment, perhaps owing to compromise/settlement between the parties, though not mentioned in the impugned judgment. Since the learned trial court has already taken a lenient view, in the matter of sentence, there is no occasion to interfere with the elaborate judgment of trial court, based on proper appraisal of evidence in the case.
11. Consequently, the appeal is dismissed and conviction and sentence of the accused/appellant awarded to him by the learned trial court is maintained.