KAMAL MUSTAFA BOKHARY, J.-- Tariq son of Sher Bahadur, Abdul Khaliq son of Haji Afzal and Abdul Hamwd son of Jang Bahadur residents of District Attock have filed this appeal from the order, dated 30-5--1988, passed by Mr. Azad Muhammad Awan, Additional Sessions Judge, Attock, whereby on conviction under section 377, P.P.C. Each of them was sentenced to undergo R.I. For six years and to pay a fine of Rs.4,000 or in default of its payment to further suffer R.I. For six months each. They were also ordered to pay Rs.5,000 each to P.W. Ahmad Nawaz victim as compensation under section 544--A, Cr.P.C. Failing which they were to undergo R.I. For six months. They were given benefit under section 382-B, Cr.P.C. The victim Ahmad Nawaz has filed Criminal Revision No. 21/I of 1988 against acquittal of the appellants under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and for enhancement of their sentences under section 377, P.P.C. This judgment wilt dispose of both the appeal and the revision.
2. The facts disclosed in the F.I.R. Registered on 14-1-1987 at 9-10 p.m. At Police Station Hassan Abdal, District Attock, on the statement of Ahmad Nawaz are that he was a cultivator in village Bohigar. His father had gone to Gujranwala. On 13-1-1987 at 10 p.m. (Khuftanwela) he went to the hotel of Mahmood in the village where he found Tariq appellant who asked him to accompany him to his Dera in order to give food to his dog. Ahmad Nawaz accompanied him for tile purpose and Tariq gave Roti to the dog and on his asking he sat with him in his Dera on a Charpas. Meanwhile, Abdul Hameed and Abdul Khaliq, appellants, reached there and on their arrival he got up to leave the room but Abdul Hameed appellant held him and threw him on a Charpai which was covered with a bed. Abdul Khaliq and Tariq held him by the legs and arms while Tariq removed his Shalwar.
When he resisted Abdul Khaliq gave him blows and also caused injury on his right hand. He was threatened to keep quiet. Thereafter, all of them subjected him to carnal intercourse against nature. After they were free he got up raising alarm but all the three appellants forcibly detained him and repeated the act of sodomy on him. It was in the morning time that he was allowed to leave for easing himself which provided him an opportunity to slip away. On way he came across Muhammad Nawaz P.W. Whom he narrated the occurrence. On arrival home he told his mother that the appellants had subjected him to sodomy who detailed him to Rawalpindi to see his maternal-uncle, a retried major, named, Muhammad Sardar Khan, who directed him to report the matter at police station. After returning from Rawalpindi he met Ishtiaq Ahmad, A.S.I., who recorded his statement on which formal F.I.R. Was registered. After investigation police challaned appellants in Court.
3. Dr. Samee Tariq (P.W.1) medically examined the appellants, on 17-1--1987, and found them fit to perform sexual intercourse.
The same doctor also medically examined the victim Ahmad Nawaz, P.W., aged about 18/19 years, on 14-1-1987 at 9-30 p.m. He observed that anus of the victim was conical in shape. There was no broken hair found. The anus was soiled with faeces. There were two tears at 11 O' Clock and 1 O'clock position of the anal area. The doctor also observed injury No.2 and described it as a light brown seabed abrasion 1/2" x 1/4" on the back of right hand near base of the thumb. He took three anal swa bs for analysis by the Chemical Examiner. He also took into possession Shalwar of Ahmad Nawaz and sealed it for analysis by the Chemical Examiner. According to the doctor the injury was simple in nature. On receiving report of the Chemical Examiner the doctor was of the opinion that Ahmad Nawaz was subjected to carnal intercourse within 24 hours of the examination.
4. At the trial prosecution examined eight witnesses in all. Dr. Samee Tariq proved his medico-legal reports on the appellants and the victim. Irshad Hussain Shah (P.W.2), Foot constable, had taken sealed parcels and delivered it to the Chemical Examiner. Sajjad Hussain Shah (P.W.3), A.S.I.
Registered formal F.I.R. At the Police Station Jehangir Khan (P.W.4), Foot Constable, escorted Ahmad Nawaz for medical examination, Musthaq Ahmad (P.W.8) A.S.I., investigated this case. Ahmad Nawaz (P.W.6), victim, narrated facts stated by him in the F.I.R. He deposed that he was twice subjected to sodomy by all the three appellants after he was taken away from the hotel of Mahmood by Tariq appellant to his Dera on the pretext of throwing food before his dog. He also deposed that he was forcibly detained till the morning when he could slip away on the pretext of easing himself on the morning of the night on which he was made a victim of assault. Muhammad Tahir (P.W.5) deposed that he saw the victim going with Tariq appellant and on his enquiry he was told that they were going to throw food before the dog of Tariq at his Dera. Muhammad Nawaz (P.W.7) deposed that when he went to ease himself in the field on the morning of the night of occurrence he saw the appellant running towards his house who told him that the appellants had forcibly detained him at the Dera of Tariq appellant and each of them had twice subjected him to sodomy.
5. The appellants did not plead guilty to the charges and denied allegations against them. They stated that they had been implicated due to enmity with the complainant and the prosecution witnesses had stated against them because they were related to each other. Abdul Khaliq stated that he had been implicated due to his relationship with Tariq appellant. All the three appellants appeared as their own witnesses and pleaded innocence as well as stated that they had been falsely involved due to enmity and inter se relationship of the prosecution witnesses. They did not lead any evidence in their defence.
6. It was argued before us that convictions of appellants could not be maintained because the ocular evidence comprised of the solitary statement of Ahmad Nawaz victim. It was submitted that name of Muhammad Tahir did not appear in the F.I.R. Due to which it could not be said that he ever saw the victim with Tariq appellant going to his Dera. It was also submitted that the testimony of Muhammad Nawaz whom the victim narrated occurrence was of his collateral who had no business to go to ditches where he claims to have met the victim at a distance of 300 to 400 yards from his house on the pretext of easing himself as well as for the reason that the witness did not disclose the occurrence to any one. It was submitted that none of the appellants is stated to have carried any weapon. The testimony of Ahmad Nawaz was in conflict with the medical evidence which did not show any injury on his body and damage to his anus is minor as against six attacks.
He had made dishonest improvements. It was also submitted that the F.I.R. Was registered with a delay of 27 hours which time was availed for deliberations and the explanation for delay was not satisfactory.
6. We were taken through the evidence in this case and have perused it with the assistance of the learned counsel for the appellants, for the State and for the petitioner in revision.
7. According to the prosecution version Ahmad Nawaz was taken by Tariq appellant to his Dera where Abdul Khaliq and Abdul Hameed appellants reached and joined. The victim was forcibly detained and sub to sodomy by all of them twice until in the morning when he succeeded in escaping from that Dera. On instruction from his mother he went to Rawalpindi where his maternal-uncle advised him to get a case registered at the Police Station Hassan Abdal. We are satisfied with the explanation for delay. Ahmad Nawaz consistently deposed that the appellants committed sodomy with him. The medical evidence supported his testimony. The positive report of Chemical Examiner corroborated it. Muhammad Nawaz (P.W.) met him after his release from the clutches of appellants whom Ahmad Nawaz narrated the occurrence in which he was subjected to sodomy by the appellants. The discrepancies pointed out in the ocular evidence are not on any material point. The ocular evidence is natural and confidence inspiring. It is corroborated by the report of Chemical Examiner. The defence plea before us was that although subjected to sodomy Ahmad Nawaz has substituted the appellants for the real culprits. We have not come across any serious enmity between Ahmad Nawaz and the appellants on record which could prompt him to falsely involve the appellants for the real culprits. We are satisfied that the prosecution has established guilt of the appellants beyond doubt and the trial Court was justified in convicting the appellants of the charge under section 377, P.P.C.
8. It was argued for the respondents in the revision that Tariq appellant is alleged to have taken away the victim to his Dera which was situated close by. There was no intention to abduct Ahmad Nawaz and according to the allegations he was taken there to be subjected to sodomy. We find that in similar circumstances the Courts have held that no offence under section 12 of the Ordinance was constituted in law.
9. It was then argued before us that the three appellants were first offenders and young persons between the ages of 19 and 22. Their learned counsel cited authorities in support of his submission that it was a fit case for reduction of their sentences. In the circumstances of present case we are persuaded to reduce the sentences of the appellants.