Muhammad Hussain (18/19) was convicted by Section 30 Magistrate, Toba Tek Singh, under section 377 of the Pakistan Penal Code, and was awarded a sentence of four years' rigorous imprisonment, with a fine of Rs. 500 in default of the payment of which, he was to undergo further rigorous imprisonment for six months. He was also sentenced to receive 15 stripes under Whipping (West Pakistan) (Amendment) Ordinance, 1963. It was directed that the fine, if realized, shall be paid in entirety to the victim through his father Mehnga complainant. The convict went up in appeal. His appeal was dismissed by the learned Additional Sessions Judge, Lyallpur, and hence this revision petition by him through Jail.
2. Mr. Hamid Farooq, Advocate, has appeared on behalf of the State and with his help, I have gone through the evidence and relevant documents. He has been heard.
3. The prosecution case in brief is, that the petitioner, who is a servant of one Siraj, decoyed Sadiq, P.
W. 1 a boy of eight years of age to the poultry farm of his master on the pretext that they had to feed the chicks. However, after taking him to the poultry farm, the petitioner made Sadiq lie down on the ground and committed unnatural intercourse with him. The incident took place on 30th September 1968, at about 5-30 p.m. in Gojra Town.
4. The alarm raised by Sadiq attracted Muhammad Sharif (P. W. 2) Mehnga, father of the victim (P.
W. 6) and Hidayat Ali (P. W. 7). They are stated to have gone to the spot and rescued Sadiq from the clutches of the petitioner. The petitioner was apprehended. The victim and the petitioner were taken to the local hospital where Doctor Masood Rafiqi (P. W. 4) examined Sadiq P. W. He noticed that blood was oozing out of the anus. There was "slight reddish ooz inside the sphincter, where an abrasion was present at 6 o'clock." The doctor opined that penetration had taken place. He took two swa bs front "in and around" the anus lor blood and semen examination as also the dhoti of the victim. These, according to the report of the Chemical Examiner Exh. P. F. were found to be stained with semen and blood.
4. At the trial, Sadiq, the victim, was examined as P. W.
1. He fully supported the prosecution case and so did his father Mehnga (P. W. 6) Muhammad Sharif appearing as P. W. 2 did not support the prosecution case. He turned hostile. However, he had stated that he had heard from the women-folk that the accused had committed unnatural offence with Sadiq P. W. He was cross-examined though nothing useful could be got out from him. Hidayat Ali (P. W. 7) arrived, at the scene of the occurrence on the alarm raised by Mehnga, the father of the victim. He saw the petitioner present at the spot and also saw the victim, whose dhoti was stained with blood. He admitted that the petitioner was apprehended at the spot and was taken along with the victim to the hospital.
5. Report of the occurrence is statement Exh. P. A. made by Mehnga before A. S. I. Muhammad Waris (P. W. 3) in the hospital.
6. The accused denied his guilt and stated that his master Siraj had brought a suit for ejectment against Mehnga and, therefore, he has been falsely involved. In defence, however, his position is different. He has produced Nazir Ahmad and Muhammad Ahmad in defence. The former deposed that he also reached the place of occurrence when the alarm was raised. He heard people saying that Shada (Khurshid) had run away. The latter is the son of Siraj, the owner of the poultry farm. The witness stated that the people were saying that he had committed the offence. It is significant that this defence was not put to Sadiq, when he was in the witness-box nor was Muhammad Sharif asked about it. Mehnga when questioned denied that Khurshid was also present at the spot and that he committed sodomy with his son. Same is the statement of Hidayat Ali (P. W. 7). The defence version has been disbelieved by both the Courts below and in my opinion, rightly. The net result, therefore is that no reason, whatsoever, has been assigned, as to why, the petitioner has been falsely involved. The prosecution story has been supported by Mehnga, the father of the victim, the victim himself and to a certain extent by Hidayat Ali (P. W. 7). It is corroborated by the medical evidence, as well as by the Chemical Examiner's report. In view of the said state of affairs, the defence version cannot be believed. The guilt has been properly brought home to the petitioner. He has been rightly convicted.
7. The- question of sentence requires slight interference. There is no evidence that the petitioner is a rich man and can afford to pay a fine of Rs. 500 it is, therefore, reduced to a fine ofRs. I0O and in default of the payment of the same, the petitioner woul'd undergo one month's rigorous imprisonment.
8. The infliction of stripes on the person of the petitioner is illegal inasmuch as, section 4 of the Whipping Act (Act No. IV of 1909), reads as follows :--
4. Whoever-- (h)*compels or induces any person by fear of bodily injury to submit to an unnatural offence, as defined in section 377 of the said Code ; may be punished with whipping in lieu of or in addition to any other punishment to which he may for such offence, abetment or attempt be liable under the said Code."
There is no evidence that the victim was compelled or induced by fear of bodily injury before unnatural offence was committed on him. Therefore, the petitioner could not have been awarded the sentence of infliction of stripes. I am supported in this view by a recent judgment of the Supreme Court reported as Atta Muhammad v. The State (1). In this case, a school teacher, had committed carnal intercourse against the order of nature with a minor, student of 4th class in his school. He was convicted and sentenced to receive 15 stripes besides the rigorous imprisonment of two years. The learned Sessions Judge, Mianwali maintained his conviction and sentence of imprisonment, but set aside the sentence of whipping. Against this order, the appellant came in revision to the High Court of West Pakistan. Sm motu notice was issued to him to show cause, as to why, the sentence awarded to him should not be enhanced. After hearing him his sentence was enhanced from two years to four years' rigorous imprisonment and the sentence of whipping was reimposed. Atta Muhammad thereupon filed an appeal in the Supreme Court. It was held, that in view of the provisions of section 4, which. I have repro duced above, the sentence of whipping was not legal. It was set aside. Thus following the aforesaid authority Iset aside the sentence of whipping passed against the appellant. With the above alteration, the petition stands dismissed.
The substantive sentence of four years' rigorous imprisonment inflicted upon the petitioner is maintained. .
(1) PLD 1972 SC 36