' MUHAMMAD BASHIR KHAN JEHANGIRI, J.--The appellant Muzammil Shah was convicted by the learned Additional Sessions Judge, Charsadda, under section 377 of the Pakistan Penal Code, for committing sodomy on Abid Khan, a mentally retarded boy aged about seven years, in village Umarzai, Tehsil and District Charsadda, on 19th November, 1987 at noon and was sentenced to rigorous imprisonment for life and a fine of Rs,5,000 or in default to suffer simple imprisonment for six months.
2. The evidence against him is that Mst. Irshad (P.W.5) upon the bidding of her mother went out in search of her mentally retarded younger brother Abid Khan. She was attracted to a deserted kotha near their house on hearing the alarm raised by the victim and saw him lying on the ground while the appellant was over him with open trousers. On seeing her, the appellant put on his trousers and took to his heels. She then took her brother to the house who was bleeding. Mst. Irshad PW rushed to the workshop of her father Najeem Gul (PW.4) to inform him about the occurrence.
3. Najeem Gul reached home and immediately took the victim to Police Station, Umarzai, where he lodged the report vide F.I.R. Exh.PA. Which was taken down by Badshah Gul A.S.I. (PW.6) on the same day at 1420 hours.
4. Badshah Gul A.S.I. Prepared the injury sheet of the victim and sent him for medical examination. It was perhaps surreptitiously removed from the file and was not traceable, despite magisterial inquiry and search. He then set out for the spot and on reaching there drew out the site-plan Exh.PB. He cut the pieces from the shalwar Exh.P.1 of the victim suspected to be stained with semen.
He also took some pieces from the shirt Exh.P.2 and shalwar Exh.P.3 of the appellant which had been sent by the doctor and sealed them into parcel vide memo Exh.PR/1. He arrested the appellant on 21st November, 1987 and also sent him for medical examination.
5. Dr. Javaid Iqbal (P.W.3) examined Abid Khan the same day at 1445 hours and found (1) a contusion in perianal area with abrasion and (2) ecchymosis around his anus. Anal swabs were taken and sent for chemical analysis and so were the pieces of trousers both of the victim and that of the appellant. The reports Exh.PL/1 and Exh.PL/2 of Chemical Analyst on both the counts are positive.
6. The appellant was examined on 22nd of November, 1987 for fitness to perform sexual act and it was found that he was fit for that purpose. The defence of appellant was of bare denial. He did not examine anyone in defence.
7. In support of the prosecution case reliance has been placed on the following pieces of evidence:-
(i) Eye-witness account of occurrence furnished by Mst. Irshad (P.W.5).
(ii) Corroborative statement of Najeem Gul (P.W.4).
(iii) Medical evidence as regards the examination of Abid Khan victim.
(iv) Appellant was found capable of performing sexual act.
(v) Semen was found on the pieces of shalwars of both the victim and the appellant.
' The learned Additional Sessions Judge, on an appraisal of the evidence in and relevant facts and circumstances of the case, came to the finding that the charge against the appellant was conclusively brought home against him. He, therefore, convicted the appellant under the aforesaid charge and sentenced him as stated above. Hence this appeal.
8. Learned counsel for the appellant has attacked these items of evidence on various grounds. The statement of Mst. Irshad (P.W.5) has been critised on the ground that she is a child witness and as such is untrustworthy and should have been discarded. In support of this contention he maintained that undue weight has been given to her testimony to what is merely a well-tutored lesson.
9. There is no cavil with the broad proposition enunciated in Manni v. Emperor AIR 1930 Oudh 406 that "there is no more dangerous witness than a young child" for the reason that "any mistakes or discrepancies in their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well-taught lesson." The same dilemma by Dr. Kenny in his Treatise The Outlines of Criminal Law was reiterated in Abbas Ali Shah v. Emperor AIR 1933 Lahore
667. While conceding to this general proposition, we find ourselves in agreement with the following observations made in Muhammad Afzal v. The State PLD 1957 (W.P.) Lahore 788 by A.R. Change; J.
As his Lordship then was:-- "In my opinion no general rule of universal application can be laid down that in no case the evidence of a child witness should be believed. Each case would depend upon its particular facts and circumstances. However, the evidence of a child witness before it is acted upon should of course be subjected to a close and careful scrutiny."
' Testimonial concept of a child is determined by the law relating to different countries. In our country under section 118 of the Evidence Act, correspondiNg to Article 3 of Qanun-e-Shahadat, 1984, a child is competent to testify, if it can understand the questions put to it, and give rational answers thereto. (See Ram Hazoor Pandey v. The State AIR 1959 Allahabad 409.
10. We have gone through the evidence of Mst. Irshad (P.W.5) with care. Before recording her statement the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. Besides, she has been subjected to fairly lengthy cross-examination which she had withstood to an astonishing degree. A persual of her statement shows that she made the statement in a frank and straightforward manner. Curiously there was no suggestion to her in her cross-examination that she did not know the appellant. Then there are no circumstances to indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim .With his trousers loosened. She was intelligent enough to understand as to what had been done to her brother and neither she nor her father had any motive to falsely implicate him. We see no reason whatsoever why the statement of such a child witness should not be believed though a suggestion was made to Najeem Gul (P.W.4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr.P.C.
Did not take up this plea. We have not been able to discover any valid reason to reject the testimony of Mst. Irshad (PW.5).
11. But if the corroboration is needed, material corroboration of her statement is to be found in the various categories of evidence enumerated above. Najeem Gul (P.W.4), father of the victim Abid Khan and star witness of the present case, namely, Mst. Irshad fully supports her statement in material particulars. The criticism qua his evidence is that while he had asserted in his statement that Mst. Irshad PW accompanied him to Police Station, she had contradicted him on this score.
This is hardly a serious contradiction so as to discard him on all scores. It was also urged that both Mst. Irshad and Najeem Gul were highly interested witnesses due to their close relationship inter se and with the victim. This argument is simply untenable. There is no doubt that both the witnesses are closely related inter se as well as to the victim but this relationship by itself cannot militate against their credibility. As stated earlier, there is no indication on the record that there was any previous enmity between the parties or that the witnesses had any aninus to falsely implicate the appellant for an offence involving exposure of their brother and son respectively to reproach and disgrace.
12. The medical evidence furnished by Dr. _laved Iqbal (PW.3) and Dr. Mubarik Hussain (PW.8) is further corroborative of the prosecution allegations that the victim was subjected to carnal intercourse and that it was the appellant who was responsible for that act. It is further reinforced by the reports Exh.PL/1 and Exh.PL/2 of the Chemical Analyst placed on the file.
13. For the foregoing reasons it will be seen that the appellant is clearly guilty of the offence with which he was charged and had, therefore, been rightly convicted.
14. Now the last question which requires determination is as to whether the sentence of the appellant was harsh as his learned counsel had maintained by way of his last leg of argument. No doubt the appellant had acted in a very cruel manner by committing sodomy on a boy of hardly seven years who was mentally deranged also and, therefore, a deterrent sentence is called for.
Nonetheless, the imprisonment for life appears to be a bit harsh. We are, therefore, inclined to reduce it to rigorous imprisonment for eight years. The sentence of fine of Rs,5,000 or in default to suffer six months' S.I. Is maintained. The learned Additional Sessions Judge had awarded no compensation to the victim or his heirs as required under section 544-A, Cr.P.C. Which was mandatory. We hereby order that in addition to a fine of Rs,5,000 and a simple imprisonment for six months in default thereof the appellant shall also pay Rs,5,000 by way of compensation to the heirs of the victim or in default he shall suffer six months' further simple imprisonment. With these modifications in sentence, the appeal is dismissed. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.
15. We have dismissed this appeal in the above terms by our short order, dated 8th of April, 1991.
Above are the reasons for so doing. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.