' This Criminal Revision arises from an order passed by the learned Sessions Judge, Mianwali, whereby he on 22-6-1982 while dismissing the appeal against the conviction of Shah Nawaz, petitioner, under section 377, P.P.C., accepted the revision for enhancement of the sentence.
2. Shah Nawaz, petitioner, was tried under section 377, P.P.C. For committing sodomy upon Khan Muhammad P.W.3 on 27-5-1981. On the conclusion of the trial, he was convicted under section 377, P.P.C. And sentenced to three years' R.I. He filed appeal against his conviction and sentence. The complainant party filed revision praying for the enhancement of the sentence. After hearing the parties the learned Additional Sessions Judge, Mianwali, dismissed the appeal against conviction and sentence and enhanced the sentence from three years' R.I. To 7 years' R.I. And also awarded sentence of 20 stripes under section 4(B) of the Whipping Act, 1909. Hence this revision.
2-A. The learned counsel for the petitioner submitted that prosecution had failed to prove its case against the petitioner; that there was a delay of about 12 hours in lodging the F.I.R.; that the eye- witnesses are related to Khan Muhammad victim of the crime; and were inimical towards the petitioner; the sentence has been enhanced without any justification; that no independent witness from the locality was produced. No one has appeared for the State to oppose this petition.
3. I have considered the matter carefully and have examined the evidence on record. I do not feel persuaded to agree with the learned counsel for the petitioner. The F.I.R. Was registered on the same day. In cases of sodomy or rape delay of hours is no delay because the complainant party has to think many times before approaching the police in such like cases. There is nothing in evidence to show that there was any previous enmity between the petitioner/accused and the eye-witnesses. However, their relations became strained after this occurrence which was quite natural. The statements of the eye-witnesses cannot be discarded on the grounds of relationship.
They have successfuly faced the test of cross-examination. 'The medical evidence supports the allegations of sodomy against the petitioner. He has not been able to rebut the prosecution case and the evidence given by the eye-witnesses. No witness in defence was produced. The Courts below have believed the eye-witnesses. I do not see legal infirmity in the statements of the eye- witnesses for these reasons, I feel that not only the petitioner was rightly convicted under section 377, P.P.C. By the trial Court but appeal against his conviction under section 377, P.P.C. Was rightly dismissed.
4. This brings me to the question of the sentence of the petitioner by the learned Additional Sessions Judge under section 439-A, Cr.P.C. I feel that this revision against an order passed by the learned Sessions Judge under section 439-A, Cr.P.C. Is not competent. So this Court in exercise of the revisional powers is not in a position to examine the correctness of the enhanced sentence.
5. Pursuant to the above discussion, the revision is dismissed. The petitioner shall surrender himself before the trial Court within 15 days, failing which the trial Court shall issue warrants for his arrest.
On arrest he will be sent to jail to serve the remaining sentence.