MIAN MEHBOOB AHMAD, C.J.---Fahim Khan the appellant, feeling aggrieved of the judgment dated 7-8-1997 delivered by the learned Additional Sessions Judge, Kohat whereby he was convicted under section 377, P.P.C. and sentenced to imprisonment for life and was not allowed the benefit of section 382-B, Cr.P.C. has come up in this appeal before this Court.
2. The facts as gathered from the record are that Junaid a lad of about 7/8 years of age lodged F.I.R. on 29-7-1996 at 12-45 p.m. about an occurrence which took place in the Darsgah of a mosque at 12-15 p.m. According to the contents of the F.I.R. Fahim Khan, the appellant, called the victim Junaid who was playing with his friend and class-fellow Inam Shah in the mosque and when he went to him Fahim gave him Rs,4 and took him to a room in the upper storey where the Darsgah was located, bolted the room from inside, took off his under garments and forcibly committed the unnatural offence with him. After the commission of offence Fahim fled away and the victim came down where his class fellow Inam Slfah was present and both left for their houses. Victim Junaid was suffering with agony of pain and when his elders enquired from him about the reason, he told them of the incident whereupon his maternal uncle Muhammad Waqar took him to the Police Station City Kohat where Junaid lodged the report and claimed for action against ,Fahim appellant.
3. After the registration of the case investigation was conducted by the police and challan was submitted in the Court. The appellant did not plead guilty and claimed trial.
4. The prosecution in support of its case produced seven witnesses. P.W.1 is Muhammad Nawaz Foot Constable, a witness of recovery memo. Exh.P.C. pertaining to a phial containing swabs of semen. P.W.2 is Dr. Gul Bahar who examined Muhammad Junaid, the victim, on 29-7-1996 at 2.00 P.M. He proved his medical report Exh.P.W.2/1 and the injury sheet Exh.P.W.2. He had opined in his report that sexual intercourse was done with the child 'victim. P.W.3, Rashid Gul, is S.H.O. Police Station Usterzai who submitted the challan in the Court.P.W.4 Zahid Ali, Foot Constable took the victim Junaid to the hospital for medical examination. P.W.5 is Muhammad Junaid the victim, who narrated the incident of commission of sodomy with him by Fahim. P.W.6 is Inam Shah, the class- fellow of Junaid who corroborated the testimony of P.W.5 in all essentials, and P.W.7 Rustam Khan, A.I.S. recorded the F.I.R. Exh.P.A. on the statement of Junaid victim, arrested the appellant when his bail was rejected, got him medically examined, whom the doctor found to be capable of performing sexual act.
5. On the conclusion of the prosecution evidence the statement of the accused/appellant was recorded under section 342, Cr.P.C. He denied the allegations against him and stated that he was the monitor of the class of students in the Darsgah attached with the mosque and used to maintain discipline; that on the day of occurrence he had inflicted punishment on Muhammad Junaid with a stick which caused injuries on his hip and that is why he was implicated falsely in this case. The appellant neither opted to produce any evidence nor chose to make a statement on oath under section 340(2), Cr.P.C.
6. The learned trial Court after the appraisal of the record found the appellant guilty of offence of sodomy, convinced him under section 377, P.P.C. and sentenced him to life imprisonment. The charge against the appellant of the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was however, dropped.
7. The learned counsel for the appellant has submitted that he would not question the conviction recorded against the appellant but would only pray for reduction in the sentence as the same on the face of it is highly excessive and harsh. The learned counsel in the same context submitted that the appellant is not a previous convict, that at the time of alleged commission of offence, he was of tender age and if the sentence of life imprisonment is maintained the sufferance of the appellant will be so excessive that there would be no comparison between the same and the alleged offence. It was also urged by the learned counsel for the appellant that the refusal of the benefit of section 382-B, Cr.P.C. by the learned Trial Court was also highly unjustified and that the law laid down on the subject is that the said benefit is an entitlement of the accused unless very special circumstances are brought out to refuse the same to him.
8. The learned counsel for the State very candidly submitted that the sentence awaded to. the appellant and the refusal of the benefit of section 382-B, Cr.P.C. do not appear to be justified in the circumstances of the case and appear to be very harsh and excessive. He submitted that the Court may exercise its discretion in this behalf.
9.We have given anxious consideration to the respective submissions made on behalf of the parties. We are of the view that the sentence of life imprisonment awarded to the appellant and refusal of the, benefit of section 382-B Cr.P.C. in the attendant circumstances of the case especially in view of the age, of the appellant and his being a student is highly uncalled for and need to be reduced reasonably. The principle underlying award of punishment/sentence is not to cause sufferance only but to ensure that the punishment also results in the reformation. The continued long incarceration of a young person would not bring about the desired result and may be counterproductive in that he may become a desperate character and come out of the jail as a hardened criminal who may adopt the life of crime for the rest of his life.
10.On the principle that punishment to a first offender especially to a young person should be minimum keeping in view the gravity of the offence, we, while maintaining the conviction under section 377, P.P.C. reduce the sentence of imprisonment to eight years' R.I. We also find that the sentence of I fine which is mandatory on a conviction under section 377, P.P.C. has been omitted by the Court below and, therefore, in addition to the rigourous imprisonment for eight years, we would sentence the appellant to a fine of Rs,5,000 in default whereof he shall undergo rigorous imprisonment for further six months.
11.Benefit of section 382-B, Cr.P.C. shall also be allowed to the appellant.
12.With the above modification in the sentence this appeal is dismissed.