The appellants, Ayaz (20) and Afsarullah (19) were convicted by the learned Additional Sessions Judge, Mardan, under section 377 of the Pakistan Penal Code for committing sodomy on their co- villager Nawas Khan aged about 20/21 years, in the sugar-cane field in Wand Asar Banda, on the 30th May, 1987, at 1500 hours and were sentenced to rigorous imprisonment for two years and a fine of Rs.500 each or in default to suffer further simple imprisonment for 3 months.
2. It was alleged against the appellants that they on 30-5-1987 at 15-00 hours had committed sodomy on Nawas Khan while in field of sugar-cane in Wand Asar Banda when all the three were on their way back from the house of the aunt of the victim in village Chamdheri. The victim raised hue and cry and, therefore, the appellants ran away. The victim went to Police Post, Choora and lodged the report Exh.PA./1 at 16-30 hours which was taken down by Fazale Ilahi, the then A.S.I.
(P.W.5). The Murasila Exh.P.A. Was sent to Police Station Shahbaz Garhi where case was registered against the appellants under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) vide F.I.R. Exh.P.A./1. After the registration of the case, not only the injury-sheet Exh.P.E./1 of the victim was prepared but he was also referred to Rural Health Centre, Shahbaz Garhi where he was examined by Dr. Muhammad Tariq who found redness on the anal region of the victim and detected semen on his clothes. The semen stained portion of his clothes and swa bs taken from his anal region were sent to the Chemical Analyst.
Likewise the appellants after arrest were got medically examined and both were found fit to commit sexual intercourse. Pieces of Shalwars of the appellants on chemical examination were found stained with semen.
3. The appellants pleaded not guilty at the trial and stated that they had been falsely implicated owing to enmity. They declined to produce defence evidence as also to be examined on oath.
4. The trial Court gave credence to the testimony of victim, Nawas Khan (P.W.1) and rejected the plea that the appellants have been falsely implicated. The testimony of the victim was further found to be fully corroborated by the medical examination of victim and that of the appellants coupled with the positive report of the Chemical Analyst. The appellants were accordingly convicted and sentenced as stated above. Hence this appeal.
5. Mr. Khawaja Muhammad Khan, learned counsel for the appellants, has assailed the order of conviction on the grounds formulated in the memorandum of appeal. Malik Hamid Saeed, learned Additional Advocate-General has supported the convictions and sentences awarded to the appellants.
The learned counsel for the appellants laid much stress on his argument that complainant being older in age than the appellants could not be subjected to sodomy in the absence of show or use of force more so when appellant Ayaz being real cousin of the complainant could not possibly conspire with appellant Afsarullah for such a heinous offence. He also took serious exception to the conduct and antecedents of the complainant which, according to him, were not above board. In this respect, he invited my attention to the part of medical evidence wherein the victim has been described to be `seemingly habitual.
6. After examining the record and hearing the learned counsel for the appellants and the learned Additional Advocate-General, I find no justification for my interference in the convictions and sentences awarded to the appellants. On the face of the record, no improbability is discernible to me in the case of the prosecution merely because the complainant happened to be older than the appellants or that the latter were unarmed. Human nature is full of complexities. The possibility that the victim suffered from timidity and weak physique cannot be excluded. On the other hand, the appellants could be strong headed and stubborn. This conclusion of mine is re-in-forced-by the fact that the victim was found to be `seemingly habitual'. The reputation of victim being timid might have prompted the appellants to make immoral overtures towards him culminating in sodomizing him. In consequence, this ground alone would not render the prosecution case doubtful or improbable. The close relationship of one of the appellants with victim is also not sufficient to discard his grievance that he had been subjected to sodomy by both the appellants.
The cases of persons satisfying their sexual lust within the prohibited degrees called `incests' are not lacking.
7. There is not an iota of evidence to suggest any enmity between the parties. Even the victim has not been cross-examined on this point at all. Had there been any animus for the false implication of the appellants and even if the victim had denied it in his cross-examination, the appellants could have very well adduced evidence in defence to prove it. Having not done so, mere assertion of enmity is of no consequence to the appellants. Besides, no self-respecting person would like to disgrace oneself by a false charge of this category.
8. The prosecution version about the commission of the offence of sodomy is proved by the evidence of victim with whom the appellants have not been able to prove any enmity. The charge against the appellants is further substantiated by the medical evidence and positive report of the Chemical Analyst on semen stained pieces of clothes of the parties.
9. For the foregoing reasons, I maintain the convictions and sentences of the appellants herein under section 377, P.P.C. And dismiss this appeal.