' Muhammad Azam accused aged about 12/13 years has been tried under section 377 P.P.C. For voluntarily committing carnal intercourse against the order of nature with Mukhtar PW-4 aged about 7/8 years at about 11.00 a.m. On 4-6-1987 in the garden of Khan Muhathmad Baloch (the father of the accused).
2. The proseceution case as disclosed in the F.I.R. (Exh.PA) is as follows: - "Mukhtar Ahmad PW-4 had gone to the garden of Khan Muhammad Baloch at about 11.00 a.m. On 4-6-1987 where Muhammad Azam accused alias Gunga was present, who, forcibly removed the Shalwar of Mukhtar PW and laid him on the ground with his face downward and committed sodomy with him. In the meantime, Muhammad Sadiq (complainant) PW-2, the father of Mukhtar, Mehboob PW-3 and Muhammad Raziq (PW not produced) were attracted to the spot. They saw the accused committing sodomy with the boy. The accused, on seeing them approaching, ran away from the spot."
3. Mukhtar PW-4 was attended by Muhammad Sadiq PW-2 and was first taken to his house and then to the police station city Lodhran where F.I.R. Exh. PA was recorded by Muhammad Ismail Sub- Inspector PW-7 at 6.30 p.m. On the same. Day. The distance between the house of the complainant and the place of occurrence was about 3 killas while distance from the house of the complainant and the police station was about 4/5 miles.
4. After recording the F.I.R. Muhammad Ismail PW-7 removed the Shalwar P.1 from the person of Mukhtar PW because it was stained with blood. He made the same into sealed parcel and took into possession vide memo Ex.PB. The Sub-Inspector then sent Mukhtar PW-4 to the Tehsil Headquarter, Hospital, Lodhran alongwith Mazhar Hussain H.H.C. PW.8. Dr. Muhammad Saleem Arshad PW-6 medically examined Mukhtar PW and found that there was redness around the anal canal on the prenial region. Mucus membrane on the base and upper part of the rectal canal was found lacerated and the laceration was going deep. The doctor took two anal swabs and made it into a sealed phial for sending the same to' the Chemical Examiner. He then handed over sealed phial and copy of the medico-legal report Ex.PC to Mazhar Hussain Head Constable. Ex.PC/1 is better copy of the medico-legal report. Mazhar Hussain PW-8 delivered the sealed phial as well as sealed envelope to Muhammad Ismail Sub-Inspector PW-7 intact who handed over to Amanullah Moharrir PW-5.
5. Muhammad Ismail Sub-Inspector inspected the spot and prepared sketch Ex.PE of the place of occurrence. He also recorded the statements of the witnesses.
6. Muhammad Azam accused was arrested on 6-6-1987 by the Sub- Inspector Muhammad Ismail PW-7 from the Court premises at Lodhran. The accused was sent to the hospital by the Sub- Inspector vide application Ex.PF in order to know whether the accused was fit to perform sexual intercourse. Dr. Iltaf Ahmad PW-9, after examining the accused, gave his opinion Ex.PF/1 that the accused was fit to perform sexual intercourse and that his sexual organs were fully developed alongwith secondary sex character. The Sub-Inspector then completed the investigation and got the accused challaned.
7. The accused was charged for committing offence of sodomy with Mukhtar PW by this Court. He denied the, charge and claimed to be tried.
8. At the trial, the prosecution examined 10 PWs including Muhammad Ismail, Sub-Inspector PW-7, Doctor Muhammad Saleem Arshad PW-6, Doctor Iltaf Ahmad PW-9, Doctor Saeed Ahmad Malik PW-10, Amanullah PW-5 and Mazhar Hussain H.0 PW-8. Of the remaining PWs, Sadiq complainant PW-2, Mehboob PW-3 and Mukittar victim PW-4 gave the eye-witness account of the incident.
9. The prosecution during the trial applied for medical examination of the accused in order to determine his age, the application was allowed in the interest of justice and Doctor Saeed Ahmad Malik PW-10 who had medically examined and taken the X-ray gave his opinion Exh.PH that the age of the accused was between 12/13 years. Arnanullah Moharrir PW-5 had received a sealed phial and a sealed envelope from Muhammad Ismail Sub-Inspector PW-7 and had delivered the same to Riaz Constable PW-1 intact who had given the same to the Chemical Examiner intact. He was recalled by me on 28-10-1987 who stated that he received a sealed parcel of Shalwar of the victim of this case from Muhammad Ismail Sub-Inspector PW-7 but did not send it to the Chemical Examiner. Mazhar Hussain PW-8 had taken the victim to the hospital for medical examiner and had received the sealed phial as well as the sealed envelope from the Doctor ar.d had delivered the same intact to Amanullah Moharrir PW-5.
8. Learned Public Prosecutor gave up Muhammad Raziq PW as unnecessary and tendered in evidence report of the Chemical Examiner Ex.PD according to which the anal swabs were stained with semen.
9. As observed above, the eye-witness account of the incident was furnished by the testimoney of Sadiq PW-2, Mehboob PW-3 and Mukhtar PW-4. The substance of evidence of Sadiq complainant PW-2 is as follows; "The complainant Sadiq as well as Mehboob PW-3 the nephew of Muhammad Sadiq and Muhammad Raziq PW (not produced) were coming from Mauza Matree and were going to their residence at Chah Ganwarwala in Mauza Kundi Tehsil Lodhran. When they were passing from near the garden of Khan Muhammad Baloch (father of the accused) in the area of Mauza Kundi, they heard cries from inside the garden. They were attracted to the spot and saw Mukhtar PW-4 lying on the ground with his face towards the ground. His Shalwar had been removed and the accused, while lying from him, was committing sodomy, on seeing them the accused ran away from the spot. Nlukhtar PW was bleeding from the rectum and his Shalwar was also stained with blood. He was crying with pain and therefore he was lifted from the spot by his father Muhammad Sadiq PW- 2 and was taken to his house and thereafter taken to the police station city Lodhran where F.I.R Ex.PA was recorded on his statement. The Sub-Inspector then removed the Shalwar of the boy P.1 and made it into a sealed parcel as it was blood stained. The sealed parcel vide memo Ex.PB which was attested by the witness. Mukhtar PW was sent to the Civil Hospital where he was medically examined."
10. Sadiq PW admitted that Raziq PW (not produced) and Ashiq was his real brother. He denied that Mukhtar PW was the son of Ashiq and was not his son. He denied that his brother Ashiq was of the opinion that it was a false case. He admitted that about 8 days after the occurrence a Panchayat was held at Lodhran where Pathanay Khan Baloch, Nasir-ud-Din Shah, M.P.A. As well as Ghulam Muhammad Dahir were present alongwith the father of the accused but he denied that he had admitted before the Panchayat that the present case was false. He had volunteered that the members of the Panchayat had put pressure upon him to effect a compromise by making offers of compensation and that they had obtained his thumb-impressions overt" some papers under threats. He categorically stated that father of the accused had obtained my thumb-impression on some affidavit telling me that they wanted to get the accused release on bail and that the contents of the affidavit were not read out to me. He categorically denied the contents of affidavit Ex.DD.
11. He denied the suggestion that Khan Muhammad father of the accused had lodged any report against him prior to the occurrence.
12. Mehboob PW-3 also supported the prosecution case and stated that he as well as Sadiq PW-2 and Raziq PW (not produced) were attracted to the spot on hearing the cries from the garden and had seen the accused lying over Mukhtar NV. The accused had run away from the spot on arrival of the PWs. Mukhtar PW who was bleeding from the rectum and was suffering from pain, was lifted from the spot and taken to his house by his father Sadiq PW.2. He denied the suggestion that he was making the false statement.
13. Mukhtar PW-4, who is the victim of this offence of aged 7/8 years was put certain questions by me to test his intelligence in order to satisfy myself whether he was competent to make statement.
On being satisfied from the replies and from his demeanour that he was intelligent enough to understand that he was wanted to depose, his evidence was recorded. He also fully supported the prosecution case and stated that he had gone to pluck raw mangoes from the garden where Muhammad Azam alias Gunga accused was present. The accused laid him on the ground with his back towards the sky, removed the Shalwar and laid over him and committed sodomy with him. He cried due to pains as a result of which his father Sadiq PW-2, Mehboob PW-3 and Raziq PW (not prduced) were attracted to the spot. He also stated that he was taken to the police station where his Shalwar was removed from his person and that he was medically examined.
14. The report of the Chemical Examiner has been tendered in evidence according to which anal swa bs of Mukhtar PW were stained with semen.
15. In the statement under section 342 Cr.P.0 the accused denied having committed sodomy with Mukhtar PW. He admitted that he was medically examined by Dr.Iltaf Ahmad PW-9 in order to find out whether he was fir to perform sexual intercourse, but stated that the report of the doctor was incorrect. He also admitted that he was X-rayed by Dr. Saleem Ahmad Malik and admitted that his age was given by the doctor as 12/1.3 years. He stated that he had been falsely involved due to enmity, as there was party faction in the village. He produced copy of the F.I.R. Ex.DA showing that a case under section 307/34 PPC has been registered against Allah Ditta, the cousin of Sadiq complainant as well as one Sahib Yar for injuring his father Khan Muhammad Baloch on 19-10-1983.
He also produced the school leaving certificate Ex.DB.
16.. The accused made statement on oath under section 340(2). Cr.P.C. And stated that he had been involved due to enmity as described by him in his statement under section 342 Cr.P.C. The accused examined DW-1 Muhammad Aslam Khan Advocate, Oath Commissioner, Lodhran, DW-2 Rana Fayyaz Hussain Advocate Lodhran as well as DW-3 Abdul Lateef r/o Mauza Matree in his defence. DW.1 Muhammad Aslam Khan Advocate, Oath Commissioner, stated that he had attested affidavit marked 'A' of Muhammad Sadiq son of Muhammad Sharif. Muhammad Sadiq deponent has been identified before him by Abdul Lateef and since Abdul Lateef was not known to him he was ' therefore further identified by Muhammad Asghar Shah Advocate Lodhran. He stated that affidavit was read over to the deponent and he had attested the same. He also stated that the photograph of the deponent had been affixed on the affidavit as well as in the register kept by him.
He produced a copy of the register Ex.DB. He admitted that he did not know as to who had written the affidavit. He also admitted that no endorsement was made by him on the affidavit showing that it was read over to the deponent. He admitted that the name of the scriber was not written on the affidavit. He also admitted that in his register the entries from No,1262 to entry No,1311 relating to the period from 9-9-1987 to 26-10-1987 did not contain any copy of the identity card or photograph of the deponent and that about 50 affidavits had been entered in the entries without any copy of the identity card or photographs.
17. The substance giver. By Rana Fayyaz Hussain, Advocate DW-2 Lodhran is that he had written affidavits of Muhammad Sadiq and Muhammad Raziq Ex.DD and Ex.DE on the identification of Abdul Lateef. He admitted that he was aware that the affidavits were to be produced in the Court of Resident Magistrate, Lodhran in connection with the bail of Muhammad Azam accused. He also admitted that he had been engaged as counsel on behalf of Muhammad Azam accused before he wrote the affidavits Ex.DD and Ex.DE. He also admitted that Nasir-ud-Din Shah M.P. A ., Member of District Council was present at that time with him. He admitted that having been engaged counsel for the accused it was not proper to draft affidavits Ex.DD and Ex.DE on his part. He denied the suggestion that the accused party had brought the blank paper having thumb-impressions and he drafted the affidavits.
18. DW-3 Abdul Lateef stated in his examination-in-chief that he never identified Muhammad Sadiq and Muhammad Raziq before anybody in connection of their affidavits. At this learned defence counsel prayed to declare the witness hostile. Request was alldwed. He admitted the suggestion of the learned defence counsel that he identified before Rana Fayyaz Hussain Advocate at the time of the execution of the affidavits. He admitted that Kh.An Muhammad told him that Sadiq PW and Raziq had affixed their thumb-impressions on the blank papers. He also admitted the suggestion that Khan Muhammad had told Rana Fayyaz Hussain DW that'Sadiq and Raziq had agreed to the compromise and therefore he should write the affidavits. He also admitted that Khan Muhammad produced photographs of the deponents before the Oath Commissioner.
19. I have heard the arguments addressed by the learned defence counsel as well as by the learned Public Prosecutor and have also gone through the evidence in detail.
20. Dr. Muhammad Saleem Arshad PW-6 had stated in his statement that Mukhtar PW was subjected to sodomy. His statement is corroborated by the report Ex.PD of the Chemical Examiner according to which the anal 'swa bs were stained with semen. It is, therefore, proved that sodomy had been committed with Mukhtar PW-4.
21. In order to prove that Muhammad Azam had committed sodomy, the prosecution had produced, as already mentioned, Muhammad Sadiq PW-2, Mehboob PW-3 and Mukhtar Ahmad PW-4.
22. The evidence of Muhammad Sadiq PW-2 and Mehboob PW-3 is quite consistent. They have supported the prosecution case in detail. Their evidence is confidence inspiring and there seem no reason for them to falsely implicate the accused. According to them they were coming from Mauza Matree to Chah Ganwarwala when they heard cries from the garden of the father of the accused and saw the occurrence. Abdul Lateef DW-3 'had admitted that while going from Mauza Matree to Chah Ganwarwala, the garden of the father of the accused falls in the way. Their presence at the spot therefore appears quite plausible.
23. The victim Mukhtar PW-4 has categorically stated that the accused had committed sodomy with him. There is no reason for him to let of the real culprit and involve the accused falsely.
24. The version of the accused that he had been involved due to enmity as his father had lodged FIR Ex. DA in 1983 against Allah Ditta (a cousin of Sadiq) is falsified by the accused himself as hel stated that his father and the said Allah Ditta had entered into compromise and the relations had become normal for the last two years (much before the present occurrence).
25. Learned counsel for the accused argued that there is delay in lodging the F.I.R. Which makes the whole case doubtful. I do no agree with this contention. The complainant Muhammad Sadiq clearly stated that he took his son Mukhtar to his house on foot from where he went to the police station which was about 5/6 miles away and according to him it had taken 3(1/2) hours to reach the police station from the hospital. Under these circumstances no delay has been found in lodging the F.I.R.
26. Learned counsel for the accused has further argued that Sadiq had given affidavit Ex.DD before PW-2 stating therein that culprit were not known to them and police had obtained his thumb- impression on blank paper and therefore according to the learned defence counsel, the accused should be acquitted.
27. It is settled law that if any previous statement allegedly made by a witness is denied by him, and he is duly confronted with the same, that statement does not become the substantive evidence and if it is proved that the witness had made that statement, it will only shake the credit of the witness.
28. In this ease the evidence of defence witnesses, if carefully gone through makes it highly doubtful if Sadiq PW had executed' affidavit Ex.DD. He has very frankly stated in his statemnet that the members of the Panchayat pressurised him to effect the compromise and his thumb- impression was obtained on some paper. His version Inds support from the statement of Abdul Lateef DW-3. Muhammad sadiq PW has very frankly add straightforwardly deposed that the Contents of the affidavit Ex. DD were not written at his instance. I s also a matter of common knowledge that the affidavits are go attested from the Oath Commissioner without producing the deponents. The instant affidavit was written by Rana Fayyaz Hussain, Advocate W-2 who, according to his own statement, had also been engaged a Counsel for the accused in this case for getting him released on bail.
29. Moreover, the prosecution case does not solely depend upon :he statement of Muhammad Sadiq PW. Mukhtar Ahmad PW-4, who is :he victim of this offence has clearly implicated the accused and I lave no reason to disbelieve him. He is also fully supported by Mehboob (PW-3).
30. It has been argued that Mehboob PW-3 is the nephew of the Complainant Muhammad Sadiq PW-2 and therefore he is an interested witness. The contention of the learned defence counsel is without force. It is true that Mehboob Ahrnad PW-3 is' nephew of the complainant but that does not make him the interested witness. The interested witness would be that who has any animus against the accused. The fitness has no enmity with the accused. Mere relationship of th E tness with the complainant therefore, is not enough to brush asid its statement. The statement of this witness is quite consistent and I Lave no reason to disbelieve him. The version of the accused that h Lad been involved due to enmity does not find support from any quarter.
31. The learned counsel has pointed out a few contradictions in he statements of the complainant as well as the victim Mukhtar PW. He contradictions pointed out are not so material as to make the evidence doubtful. The prosecution has, therefore; proved its ,case beyond reasonable doubt against the accused. The version of the reused on the other hand is not such which could reasonably be rue. I, therefore, convict Azam accused under section 377 P.P.C. Or committing carnal intercourse against the order of nature with Mukhtar PW.
32. I have also given my anxious consideration as to what should e the sentence in this case.
33. The prosecution, as already stated, had got the accused medically examined to ascertain his age and according to the evidence Dr. Saeed Ahmad Malik PW-10 the age of the accused is 12/13 ears. I have given a note while recording the statement under action 342 Cr.P.C. That he looked to be about 14 years of age, yet view of the opinion of the radiologist I have no reason to disagree with his opinion.
34. Since Muhammad Azam accused is a raw youth of impressionable ,e, he is, therefore, sentenced to 4 years' R.I., and a fine of ;.1,000 or in default of payment of fine to undergo further R.I. r 3 months. The accused is also ordered to pay Rs,5,000 as compensation under section 544-A Cr.P.
C. To the complainant Muhammad Sadiq (the father of the victim) for causing injury and mental anguish to the victim as well as his father due to the offence committed by him. He shall further undergo R.I. For six months in default of the payment of the compensation. The accused is on bail.
He ,be taken into custody and sent to Jail to serve out the remaining sentence passed against him.
The accused shall, however, be given benefit of section 382(b) Cr.P. C. While computing the period of sentence.
35. Exhibited articles in this case shall be destroyed, after the decision of appeal, if any. Accused convicted.