FAKHRUDDIN H. SHAIKH, J.--The appellant has filed this appeal from the judgment of Syed Ijaz Hussain Gillani, Additional Sessions Judge, Faisalabad, dated 14-5-1985, whereby the appellant was convicted of offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377/511, P.P.C. Under the first charge the appellant was sentenced to R.I. For 10 years, whipping numbering 20 stripes and to pay a fine of Rs.2,000 or in default of payment of fine to further undergo R.I. For three months. Under the second charge he was sentenced to suffer R.I. For 3 years.
2. The prosecution case is that on 8-12-1982 at 6-30 p. m. Muhammad Mukhtar, aged 16 years, was returning to his home from the workshop of Muhammad Yasin where he used to work. Appellant Muhammad Ayub, Police Constable, Faisalabad met him in the way and told him that he (Muhammad Mukhtar) was a vagabond and he (the appellant) would take him to the police station. The appellant seated Muhammad Mukhtar on the cycle and took him to his house, instead of the police station. He bolted the door of the room and then forced Muhammad Mukhtar to lie down undressed. It is alleged that the appellant committed unnatural carnal intercourse with Muhammad Mukhtar.
3. Muhammad Mukhtar went to his house and informed his father Muhammad Aslam about the incident on the same day. He also told to his father that when the appellant was taking him away, Muhammad Shan had met him on whose enquiry he was informed that he was being taken by the appellant towards police station. He further informed his father that Muhammad Yasin, the owner of the furniture workshop, where Muhammad Mukhtar used to work, had also met on the way after the incident and he was also informed of the incident. In fact Muhammad Yasin had accompanied the victim to his father's house.
4. Muhammad Aslam, his brother Muhammad Akram and one another Akram were also present in the complainant's house at the time when Muhammad Mukhtar had informed his father of the incident. All these persons, instead of going to the police station, immediately went to the house of the appellant, but it was found locked. As the night had fallen by that time, therefore, the above persons went to their houses. On the next day in the evening, complainant Muhammad Aslam took his son Muhammad Mukhtar to District Headquarters Hospital for medical examination without any reference from the police Dr. Imtiaz Ahmad Gill had examined the boy and also taken anal swabs and sealed them in two bottles. According to the report of the doctor there were two injuries on the anus of the victim suggesting that attempt had been made to commit sodomy over him. However, the report of the Chemical Examiner is in the negative.
5. The complainant did not lodge the report even after the medical examination of his son Muhammad Mukhtar on 9-12-1982 and had not gone to the police station even on the next day. On 11-12-1982 the complainant met Mr. Muhammad Sarfaz Khan, S.I. In Chak No. 279 within the area of Police Post Ghulam Muhammad Abad, which was attached to Faisalabad Police Station. The complainant narrated the incident to him. Mr. Sarfraz Khan then recorded a complaint on 11-12-1982 at 1 p.m. And sent it to Saddar Police Station where formal F.I.R. Was registered. The investigation was conducted by Mr. Sarfraz Khan. He arrested the appellant on 2-1-1983 i.e. After about 20 days of the registration of the case. It has not been explained as to why so much time had been taken to arrest the appellant when he was a police constable posted in the same Police Post of which Mr. Sarfraz Khan was incharge.
6. Mr. Sarfraz Khan recorded the statements of the witnesses and after completing the investigation sent up the case for trial.
7. The appellant has pleaded not guilty to the charges and alleged that he had been involved in this case due to Muhammad Din councillor against whom the appellant had lodged a report under section 109, Cr.P.C. In the report Muhammad Mukhtar and one Rehmat also shown as accused persons. According to the appellant the case has been fabricated by Muhammad Sarfraz Khan at the instance of the above persons in order to take revenge.
8. In order to properly appreciate the defence of the appellant it would be useful to reproduce the reply of the complainant, which he had given in cross-examination to the suggestion made to him by the defence counsel in this behalf. The reply is as under:- "It is incorrect that about 15/18 days prior to this occurrence, my son was apprehended under section 109, Cr.P.C. And was brought at Police Post. It is incorrect that the accused had apprehended the victim and thereafter detained him at Police Post. It is also incorrect that the accused had made a complaint against me, Rehmat, Barkhurdar, Ikram F.Cs. And Sarfraz Khan S.I.
That they had released the victim who was detained under section 109, Cr.P.C. It is incorrect that I and Sarfraz Khan, S.I. Had threatened the accused for detaining the victim. I did not know the accused previously. It is incorrect that no such occurrence took place and the entire case has been fabricated with the connivance of Muhammad Din, Councillor as well as Sarfraz Khan, S.I."
9. In support of the prosecution case the main witnesses are the victim Muhammad Mukhtar (P.W.
7), Complainant Muhammad Aslam (P.W. 6), Muhammad Shafi (P.W. 8), Muhammad Yasin (P.W. 9), Muhammad Akram (P.W. 10), and Mr. Sarfraz Khan, Investigating Officer (P.W. 11). Besides the above evidence there is also the evidence of Dr. Imtiaz Ahmad Gill (P.W. 1). The appellant has not produced any witness in his defence.
10. So far as the charge of kidnapping is concerned, the trial Judge has held that the victim was a minor boy and that tire appellant had taken him to his house under the threat of police prosecution and, therefore, his act amounted to kidnapping. This finding has been given by the learned Judge without referring to the definition of minor as laid down in section 361, P.P.C. Section 12 of the said Ordinance does not define kidnapping or abduction. Hence these terms are to be understood in the sense in which they have been used in the Penal Code. Since there is no charge of abduction, hence we have to see whether a body aged 16 years could have been kidnapped by the appellant, section 361, P.P.C. Says:- "Who takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
It would, therefore, appear that a male who is more than 19 years of age cannot be kidnapped. He can be abducted by show of force or under threat, but there is no charge of abduction against the appellant. The simple allegation is that the appellant had kidnapped a minor boy. This allegation is not made out from the record of the case,, because even according to complainant Muhammad Aslam, the father of the victim, the latter was aged 16 years at the time of the incident.
11. Moreover, the conduct of the victim shows that no force or threat was used in order to take him away from the way. He was seated by the appellant on the back seat of his cycle and was taken to the house of the, appellant. Had there been any threat, he would not have sat on the cycle. Nothing prevented him from jumping down from the cycle. Moreover, he had met Muhammad Shafi in the way whose help could have been invoked, but he did not ask Muhammad Shafi even to convey a message to his father that he was being taken away to the police station by the appellant. It would, therefore, appear that the victim had voluntarily accompanied the appellant to his house or wherever the appellant wanted to take him. Even the learned counsel for the State has conceded that, from the conduct of the victim, the offence of kidnapping punishable under section 12 of the said Ordinance has not been proved For the reasons stated above we hold that the charge under section 12 of the said Ordinance is not made out and he appellant stands acquitted of the same.
12. So far as the attempt to commit sodomy is concerned, the only evidence is the word of the victim, who has been examined as P.W. 7 and has clearly stated that the appellant after having taken him to his house had undressed him and subjected him to sodomy. However, the', medical evidence does not suggest that there was any penetration although there were two injuries on the anus. The anal swa bs were not found stained with blood or semen by the Chemical Examiner, Even the Shalwar of the victim which, according to P.W. Muhammad Akram was stained with blood and semen, was not produced before the police. Hence we find that the learned trial Court had rightly concluded, that the appellant had at the most attempted to commit sodomy upon the victim. The appellant was, therefore, rightly convicted under section 377 read with section 511, P.P.C.
13. For the above offence the appellant has been sentenced to R.I. For three years. According to the record we find that the appellant has already suffered detention of two years and ten months. We, therefore, reduce the sentence of the appellant to the period already undergone. The appellant shall be released forthwith if not required in any other case. The appeal stand partly allowed to the extent indicated above.