1. Raqiaz Khan and Iqrar Khan being charged for committing carnal intercourse with complainant Sakhi Zaman, a student of 6th Class, vide F.I.R.. No,277 registered on 23-10-1986 in the Police Station Ghoriwala, District Bannu, were tried as Criminal Case No,157/Cr. of 1987/1994 and on finding them guilty, convicted and sentenced them under section 377,. P.P.C. to 7 years R.I. with a fine of Rs,5,000 each or in default to undergo a further imprisonment of 3 months S.I. The fine money was ordered to be paid to the complainant if recovered.
2. 2.The prosecution case as set up in the trial Court in brief is, that Sakhi Zaman coxhplainant, a student of Class 6th, on 23-10-1986 submitted an application Exh.PA/1 to the Headmaster of the School where he was admitted as student, complaining therein that yesterday after relieving from School at 3.00 O'Clock, he went to Village Ismail Khel to inform Shaghar Khan about the marriage ceremony. On way back to home when he reached near Khon graveyard Iqrar and Raqiaz appellants who were already present there, cought hold of him. They dragged him to the nearby field and committed sodomy with him. The said application was endorsed and forwarded to the S.H.O Police Station, Ghoriwala for necessary action. The said application was incorporated in F.I.R. referred to above.
3. 3.The complainant was sent for medical examination to the Medical Officer, Civil Hospital Bannu, where he was examined the same day i,e, 23-10-1988 at 2-15-p.m. and the following report marked as Exh.PW-2/1 was drafted:- "There is no stain on the clothes or on the buttocks but the child has been brought after 24 hours.
4. However, there is slight laceration on both the anterior and posterior borders of the anus, i,e, 6.00 O'clock and 12.00 O'clock position. In my opinion the child has been raped."
5. 4.The Investigating Officer prepared the site plan Exh.PC at the pointation of complainant. The place where the complainant was subjected to unnatural lust is marked "4" situated in maize crop field. On the said point the Investigating Officer noticed that it was empty from maize and marks were present. The houses of appellants were searched but they were found not present. Both the accused/appellants were proceeded under sections 87 and 204, Cr.P.C. Raqiaz appellant was arrested on 14-1-1987 and sent for medical examination to ascertain whether he was capable of sexual intercourse. The Doctor after examining him submitted his report Exh.P.M. in the following words:- "Secondary sexual organs well-developed, capable of doing the intercourse."
6. Ghulam Iqrar alias Iqrary was arrested on 12-3-1987 and was referred for medical examination. The medical officer after holding the required examination opined as "there is nothing to suggest that the man is impotent".
7. 5.At the commencement of the trial charge was framed against both the appellants to which they did not plead guilty and claimed trial.
8. 6.The prosecution produced 8 witnesses in all to prove the guilt of the accused/appellants, including Sakhi Zaman complainant, Ajab Khan Head Master, the search witness, the Medical Officers who had examined the victim and accused and the Investigating Officer. Both the convict/appellants were examined separately under section 342, Cr.P.C. In their said statements they claimed innocence and falsely charged in a concocted case. The P.W., were blamed to be interested. However, they refused to give statement on Oath or produce any defence. At the conclusion, the trial Court passed the impugned order and judgment.
9. 7.The learned counsel for the petitioner objected to the jurisdiction of S.D.M. who had recorded statements of some of the witnesses on the ground that he was not empowered under section 30 of the Cr.P.C. and was not competent to take cognizance of a case where punishment provided is transportation for life. Schedule-II appended with Cr.P.C. provides that offence punishable under section 377, P.P.C. would be triable by the M.I.C. The record reveals that case was put in Court on 2- 6-1987 in the Court of M.I.C. For want of jurisdiction the case was transferred to the S.D.M. by the Sessions Judge Bannu vide Order dated 14-9-1987 where statements of P.Ws. were recorded on different dates, but nothing was shown at the Bar that the S.D.M. was not empowered to proceed with the case. On the transfer of S.D.M. and arrival of new incumbent the case was again transferred to E.A.C-V empowered under section 30, Cr.P.C. by the Sessions Judge Bannu of 19-6- 1991. Due to separation of judiciary from executive, the case remained pending in the Court of Judicial Magistrate/M.I.C. when on 17-11-1996 on the objection of Defence counsel the case was sent to the Sessions Judge for entrustment to a court empowered under section 30, Cr.P.C. The needful was done and the case was transferred to the Senior Civil Judge empowered under section 30, Cr.P.C. vide order date 30-11-1996 who recorded the remaining evidence and passed the impugned judgment and order.
10. 8.The learned counsel further contended that there is inordinate and unexplained delay in lodging the report. The application of accusation was presented to the Head Master of the School instead of lodging report in the Police Station which was hardly 6/7 K.Ms. from the spot. The witness has explained in his deposition before the Court that the appellants after committing sodomy with him under the shadow of dagger they threatened him of dire consequence' if the occurrence is disclosed to anybody. He has also explained that at the time of occurrence his father and brother were in the City who were called and on the following day he reported the matter. As regards submissions of application to the Head Master, it appears that, since the victim was a student of 6th Class and belongs to a poor family, he was dragged to the nearby field and subjected to carnal intercourse after the school hours. His father might have taken him to the Head Master for seeking his help whereon the application of complainant the matter was referred to the local Police Station by the Head Master. The Head Master while examined in Court has corroborated the narration of occurrence by the complainant, and his endorsement on the application Exh. P. A/1 .
11. 9.The learned counsel further contended that the story given in Exh. P.A/1 and his deposition in Court are altogether different and the witness has made improvements in his statement before the Court. The witness being a child witness may have been tutored by persons inimical to the convict/appellants. The story put forward by the complainant in Exh.P.A/1 and in Court statement is the same in all material aspects. The contents of the F.I.R. need not contain much details. The quest of accusation, the time and place is the same. No question/suggestion was put to the witness that he was deposing against the appellants at the instigation of others. It was observed in case "The State v. Amanullah and another" (PLD 1978 Peshawar 102 relevant at Page 104) as follows:- "It would be idle to contend that he has falsely substituted the innocent person for the real culprit.
12. To commit sodomy upon a boy is the type of disgrace of high magnitude and in a case of this nature the complainant would surely charge the real culprit and would never choose to exempt him and level false charge against an innocent person. The two co-accused are co-villagers of the complainant, and thus, there would be no question of mistaken identity."
13. 10.The learned counsel also referred to certain case-law but in criminal cases facts differ from case to case and need not to be discussed.
14. 11.The learned State counsel while refuting the contentions raised by the learned counsel for the appellants, submitted that the convict/appellants have played a high-handedness and a small boy, a student of 6th Class, was subjected to sodomy; that the version of the complainant has got corroboration of medical evidence, and their abscondance for sufficient long time immediately after the occurrence, and the challan against them was submitted under section 512, Cr.P.C. He maintained that the appellants have rightly been held guilty and convicted by the trial Court.
15. 12.I heard the learned counsel for the parties and perused the record with their valuable assistance. The prosecution.
16. 13.The prosecution has successfully brought home the guilt of the appellants. The minor discrepancies in the statement of the complainant are ignorable and cannot help the appellants.
17. Though the medical report of Ghulam Iqrar appellant was not exhibited but the same is part of the record and nothing adverse to the medical report dated 12-3-1987 was agitated before me.
18. Similarly, the appellants were not posed with the question of their deliberate absconsion while examining them under section 342, Cr.P.C. but the same omission also does not adversely effect the prosecution case. The appellants have nothing to offer any explanation regarding their wilful hiding since registration of case till their arrest. P.W. Appil Khan has proved warrant of arrest Exh.P.K. against Raqiaz appellant and Exh.P.K/1 against Iqrar Khan. The witness has also proved proclamations Exh.P.K/2 and Exh.P.K/3 against both the appellants.
19. 14.The version of complainant has got support from the site plan where the Investigating Officer noticed that the point where complainant was subjected to inhuman treatment was empty from maize crop and there were marks as well. The ocular account of the victim is also corroborated by the medical report Exh. P. W-2/1 .
20. 15.From the aforesaid elaborated discussion it cannot be held that the trial Court has wrongly or illegally convicted the appellants. However, as regards the quantum of sentence, the Trial Court has awarded them severe punishment because the appellants have already suffered the long agony of trial for about ten and a half years. Therefore, awarding them five years imprisonment with a fine of Rs,5,000 each would meet the ends of justice.
21. 16.I, therefore, partially amend the impugned order by reducing the imprisonment of 7 years to 5 years R.I. Rest of the order shall remain intact. The appellants are also granted the benefit of section 382-B of the Cr.P.C. The time spent by them as under trial prisoners shall be counted