IJAZ NISAR, J.--Muhammad Akram alias Akoo son of Muhammad Rafique (45) has been convicted under section 377 P.P.C, by Mr .Tassawar Hussain Qureshi, Abdi. Sessions Judge, Sialkot vide judgment dated 14.6.1989 and sentenced to undergo R.I. For a period of 10 years with a fine of Rs.5000/- or in default to undergo further R.I. For one year. Half of the fine, if realised, was ordered to be paid to Khadim Hussain victim as compensation. He has appealed.
2. The prosecution case in brief is that on the night between 28/29-12- 1988 Khadim Hussain PW.5 was asleep in a hotel. The appellant forcibly untied the string of his Shalwar and tried to have carnal intercourse with him. Due to resistance put up by Khadim Hussain he could not succeed.
Khadim Hussain tried to run outside and met a police constable who took him to the police station where he lodged the FIR Exh.PA. Khadim Hussain was medically examined and a contusion 1 cm x 1 cm was found on the lower part of his left lower eye-lid. The anal area was blackish in colour and no blood or stain were found there. The anal swabs were found to be stained with semen by the Chemical Examiner vide his report Exh.PH. On the basis of the said report the doctor opined that sodomy had been committed on Khadim Hussain.
3. The prosecution examined eight P.Ws in support of its case. Khadim Hussain appeared as PW.5, Sain Ahmad PW.6 and Muhammad Hafiz constable PW.7 were examined as wajtakar witness. Sain Ahmad PW was declared hostile. Muhammad Hafiz Pw.7 stated that on the night between 28/29- 12-1988 he was on patrol duty near Jug Hotel and on the alarm he saw Khadim Hussain P.W coming out of the Hotel while holding his Shalwar. Khadim Hussain told him that the appellant had committed carnal intercourse with him. Muhammad Akram appellant ran away on seeing him.
Abdul Manaf A.S.I. PW.8 investigated the case.
4. At the trial, the appellant denied the prosecution allegations. According to him he had been falsely involved on account of enmity. He stated that he had been falsely implicated by the owner of the hotel due to enmity and in fact no such occurrence had taken place. He examined Abdul Hameed Lambardar DW.I, Qaisar Begum DW.2 and Kh. Ehsan Ullah But DW.3. According to them the appellant had been falsely involved by the owner of the hotel for running a rehri in front of his hotel.
5. Relying on the prosecution evidence the learned trial Court convicted and sentenced the appellant as described above.
6. It is contended that the Trail Court has misread the evidence and that there is a serious contradiction in the FIR and the statement of Khadim Hussain made at the trial. In the FIR he stated that only an attempt of sodomy had been made on him whereas at the trial he stated that sodomy was actually committed on him. In the cross-examination Khadim Hussain PW.5 admitted that he had stated in the FIR that an attempt had been made to commit sodomy on him and that he did not state about the actual commission of carnal intercourse due to fear of police. It is not understandable what fear he was having from the police that he could, not tell them about the actual commission of sodomy on him. The medical evidence also does not support him about the actual commission of sodomy because no mark of injury was found in the anal region. The necessity of this improvement was felt on the receipt of report of the Chemical Examiner.
According to it the anal swa bs were found to be stained with semen. In the absence of any corroboratory evidence the conviction could not have been based solely on the report of the Chemical Examiner which is usually favourable to the prosecution. The anal swabs were taken on 29.12.1988 at 2.00 P.M. But were sent to the Chemical Examiner on 5.1.1989. There is no reason for the late despatch of the swa bs to the Chemical Examiner. Except for Khadim Hussain PW.5 there is no other evidence of the commission of sodomy with him. Sain Ahmad PW.6 a wajtakar witness did not support the prosecution. Muhammad Hafiz PW.7 did not say anything about the actual commission of sodomy.
7. Khadim Hussain's own version before the police in the FIR was that merely an attempt to commit sodomy had been made on him by the appellant. According to the medical evidence no injury was found on the person of Khadim Hussain. Although Khadim Hussain had quateron made improvement upon the case set up by him in the FIR but I do not consider it safe to rely on his uncorroborated testimony. It was a case of attempt to commit sodomy and not of actual commission of sodomy. Accordingly, I convict him under section 377/511 P.P.C instead of section 377 P.P.C. As he has already undergone sufficient period of imprisonment I think that the ends of justice will be met if he is sentenced to the period of imprisonment already undergone by him. I order accordingly. In addition to the sentence of imprisonment already undergone by him he shall pay a fine of Rs.5000/- or in default to undergo one year's R.I. The fine, if recovered, shall be paid to Khadim Hussain PW as compensation.
With the above modification in the sentence the appeal is otherwise dismissed.