This appeal filed by (1) Muqarab Khan son of Noor Khan, resident of Bakhari Khurd, District Chakwal and (2) Muhammad Imran son of Mehr Khan, resident of Dhoke Jabi Dakhli Thaneel Kamal, Police Station Nila, District Chakwal is directed against the judgment dated 30-10-1995 passed by learned Additional Sessions Judge, Chakwal whereby he has convicted the appellants/accused under section 377/511, P.P.C. Read with section 34, P.P.C. For making an attempt to commit sodomy with Shaukat Mehmood, victim and sentenced them to two years' R.I. Each. He has further convicted both the appellants under section 337-A.I), P.P.C. Read with section 34, P P.C. For causing injury to Shaukat Mehmood and sentenced each of them to one year R.I. And has also directed them to pay Daman amounting to Rs.5,000 each to the victim. In default of payment of Daman further imprisonment of four months has been ordered. Both the appellants/accused have also been convicted under section 337-F(ii), P.P.C. Read with section 34, P.P.C. And sentenced to six months' R.I.
And payment of Rs.2,000 each as Daman to the victim In default of payment of Daman further two months' imprisonment each has been ordered.
2. Briefly stated the case of prosecution as recorded Exh.PL in written application submitted by Ghulam Mustafa, father of Shaukat Mehmood, victim is that his son Shaukat Mehmood aged ten years who had gone to graze cattle in a jungle was forcibly taken by the appellants in a maize field where they forcibly took off his clothes and asked him for sexual intercourse and on his denial tried to cut his throat with the Chhuri and sickle possessed by them. The hue and cry made by the said Shaukat Mehmood attracted Muhammad Azad and Ghulam Muhammad who saw Shaukat Mehmood lying on the ground in naked condition and the appellants also with their Shalwars taken off. On seeing them they took their clothes and made good their escape in the nearby jungle. Both the P.Ws. Wrapped Shaukat Mehmood in their Chaddar and took him to his house. The application was incorporated into formal F.I.R. The appellants/accused were arrested on 17-9-1994 and after necessary investigation challaned to face the trial.
3. At the trial the prosecution examined nine witnesses in all. P.W.1 is Dr. Munir Ahmad Langah who on 5-9-1994 medically examined the victim Shaukat Mehmood and observed as under:--- "(1) An incised wound 3 c.m. x 1-1/2 c.m. x skin deep on right side of neck 5 c.m. Below right ear lobule.
(2) An incised wound 3 c. m. x 1 c. m. x skin deep just below injury No. l
(3) An incised wound 3 c.m. x 1/2 c.m. x skin deep on front of neck just below chin.
(4) A lacerated wound 3 c.m. x 1/2 c.m. x skin deep on front of neck.
(5) An incised wound 1-1/2 c.m. x 1/2 c.m. x muscle deep on outer side of left thigh.
(6) Reddish contusion with swelling 4 c.m. x 4 c.m. Around left eye.
P.W.2 is Dr. Muhammad Haleem Danish who examined Muqarab Khan and Muhammad Imran on 18-9-1994 and found them potent. He also examined the victim Shaukat Mehmood on 21-9-1994 at 2-30 p.m. And observed as under:--- "There is no external mark of violence around the anal orifice. On internal examination of anal canal there is no tear of redness. Two anal swabs one external and one internal were taken and sealed in a glass bottle and sent to the Chemical Examiner, Rawalpindi for detection of semen or otherwise.
According to my opinion the act of sodomy was not done on this boy. However final report will be given after the receipt of chemical report."
P.W.3 is Atta Muhammad, Constable. On 22-9-1994 Muhammad Duraiz, H.C. P.W.4 handed over to him a sealed phial containing swa bs and sealed envelope for onward transmission to the Office of Chemical Examiner which he delivered there on the same day intact. P.W.4 is Muhammad Duraiz, H.C. Who had kept the sealed parcels in Malkhana on 21-9-1994 and handed over to P.W.3 on 22-9- 1994 P.W.5 is Muhammad Azad. He is an eye-witness who while grazing his cattle on the western side of the village alongwith Ghulam Muhammad heard the voice of victim Shaukat Mehmood and rushed towards him. He saw that Muqarab Khan and Imran Khan were in naked position and they had also got Shaukat Mehmood naked and were dragging him towards Koindar and had given him injuries with sickles. On seeing them both the accused fled away leaving Shaukat Mehmood bleeding by his neck. He wrapped Shaukat Mehmood with his Puma and brought him to his house.
He produced blood-stained Puma P3 before police at Police Station Nila in the presence of Ghulam Muhammad P.W. Which Puma was taken into possession by the police vide recovery memo. Exh.PK attested by him as well as his father Ghulam Muhammad. P.W.6 is Ghulam Muhammad. He also saw the occurrence. He fully supported the version made by P. W .5, his son, P. W.7 is Shaukat Mehmood. He made a statement in the following words:----- "On 5-9-1994 I was grazing the cattle in the jungle outside the village. At about 3-00 p.m. Imran and Muqarab accused present in the Court were cutting the fodder for their cattle in a nearby field.
Muqarab accused called me but I refused to accompany him. Then he forcibly took me and thereafter both the accused put off my clothes and they also put off their Shalwars. First Muqarab accused committed sodomy with me while Imran accused caught hold off my neck. Thereafter Imran accused committed sodomy with me. Muqarab gave sickle below on my thigh and thereafter both the accused gave sickles blows on my neck. Azad and Ghulam Muhammad P.Ws.
Attracted on my noise. On seeing them both the accused fled away. Both the P.Ws. Wrapped me in Puma and brought me in my house. My father took me to the hospital at Chakwal where I was medically examined. I remained admitted in the hospital for eight days. I was also medically examined at R.H.C., Monday after 11/12 days of my first medical examination."
P.W.8 is Ghulam Mustafa. He is the complainant who reiterated his statement as mentioned hereinabove. P.W.9 is Muhammad Ayub, S.1. He received written application Exh.PL alongwith medical certificate from Ghulam Mustafa, complainant and on the basis of this application he formally recorded F.I.R. Exh.PL/l. He also took into possession blood-stained Puma P3. He arrested the accused on 17-9-1994. After completion of investigation he challaned the accused to face the trial. Report of Chemical Examination Exh. PH reveals that the swabs were stained with semen.
4. Both the appellants/accused made statements under section 342 Cr.P.C. Wherein they denied the allegation and pleaded innocence. Both the appellants made statements that the P.Ws. Are closely related to the complainant and the victim and they had deposed falsely on the asking of complainant who was inimical to them. They declined to produce evidence in defence. They also declined to appear on oath in disproof of allegation levelled against them as provided under section 340(2), Cr.P.C.
5. I have heard the learned counsel for the parties and have perused the reword with their assistance. Learned counsel for the appellant made submission regarding delay in lodging F.I.R. He contended that there is no allegation of act of sodomy against the appellant and also did not mention the name of appellant No.2. He further submitted that the M.L.R. Conducted on the same day by Dr. Munir Ahmad Langa P.W.1 did not disclose that any act of sodomy or an attempt to commit sodomy have been done on the victim and it was only on 21-9-1994 that the allegation of sodomy was introduced. He further submitted that there was no corroboration to the commission of the offence of sodomy. He also submitted that the injuries on the person of victim contradicts the opinion of Dr. Munir Ahmad P.W.1.
6. I have thoroughly and anxiously appraised the available record in the light of submissions made by the learned counsel for the appellants. It transpires from the record that the application dated 8-9-1994 contains the names of accused as Muqarab Khan son of Noor Khan and Qasim son of Mehr Khan. However, it is to be noted that the complainant had got the application Exh.PL drafted by a clerk of an Advocate and as volunteered by him in the cross--examination, he inadvertently got written the name of Qasim instead of his brother Imran but he got corrected it later on in his supplementary statement. The reason for mixing up the name of Qasim with Imran was due to the fact that both are sons of Mehr Khan and brothers inter se. The statements of P.W.5, P.W.6 and P.W.7 are consistent as far as the name of Imran is concerned. Even otherwise it is not the case of Muhammad Imran, appellant/accused that instead of his brother he was falsely substituted by the prosecution.
6. Though P.W.7 has alleged that the appellants/accused had committed sodomy with him, the necessary corroboration to this effect is lacking on the record. P.W.1 Dr. Munir Ahmad Langah who examined him soon after the occurrence on the same day has not mentioned anything about the commission of sodomy upon Shaukat Mehmood. It appears that he was not reported to about the commission of unnatural intercourse with the boy, therefore, he examined him only in respect of injuries caused on his neck, thigh and eye. As such he restricted his observation only to the extent of wounds. Later on P.W.2 Dr. Muhammad Haleem Danish examined him on 21-9-1994 who opined that according to his opinion the act of sodomy had not been done on him. In these circumstances the allegation of commission of sodomy remains doubtful. Though the Chemical Examiner's report Exh.PH is positive, in the circumstances it alone cannot be made a safe base for conviction of the appellants for the offence of commission of sodomy. However, the depositions made by P.W.5, P.W.6 and P.W.7 are consistent that the appellants/accused had taken off Shalwar of the victim and had removed their Shalwars also. To this extent commission of offence under the provision of section 377, P.P.C. Read with section 511/34, P.P.C. Is clearly made out. So far as the injuries on the person of Shaukat Mehmood are concerned they are very much clear from the evidence of P.W.1 Dr. Munir Ahmed Langah who examined him on 5-9-1994 at 8-30 p.m. The discrepancy about the infliction of wounds by a sickle or any other sharp-edged weapon is not material as according to the statement of P.W.7 and as observed by P.Ws. May not be fully correct. There is nothing on record to substantiate the plea of enmity taken by the appellants/accused. They have neither produced any evidence in defence nor examined themselves on oath in rebuttal of the charges levelled against them. In this view of the matter I find that the prosecution has established its case against the appellants/accused beyond any shadow of reasonable doubt.
7. Therefore, for the reasons stated above, I maintain the conviction and sentences of the appellants and dismiss their appeal. The sentences awarded to the appellants shall, however, run concurrently and the benefit of section 382 B, Cr.P.C. Shall also be extended to them.