Nemat Ali alias, Tuli, appellant, aged 23 years, resident of Chak No. 27/2. L., Tahsil Okara, District Sahiwal, was con--victed under section 377, P. P. C. And sentenced to five years' rigorous imprisonment with a fine of Rs. 50.00 or in default to further undergo rigorous imprisonment for six months for having carnal intercourse, against the order of nature, with a by aged nine years by a Magistrate 1st Class with section 30 powers, Okara. The appellant, against his conviction and sentence, has preferred this appeal. When this appeal came up for hearing I issued notice to the appellant (Criminal Revision No. 1423 of 1967) to show cause why his sentence should not be enhanced. Now both the appeal and the revision will be disposed of together by this order.
2. The facts of the case briefly stated are that on 10th June 1:965, at about 1 p.m., Nazir (P. W. 1), aged about nine years, resident of Chak No. 27/2-L., went to the tube--well of Ibrahim to take bath, and saw his classm ates, Muhammad Azim (P. W. 5) and Sabir (P. W. 6), sitting under a Shisham tree nearby. The said tubewell is about four killas away from the village. The tubewell was not working at that time, but there was enough water in the tank (hauz). All these three boys started taking bath in that tank. The appellant, whose dhari is close by, came there and asked the boys as to why they had passed through his cotton field. He, thereafter, caught hold of them and took them towards the dhari. On reaching there he took Nazir P. W. Inside his dhari, while Sabir and Azim P. Ws. Remained outside. The appellant expres--sed his desire to commit sodomy with Nazir P. W., who raised an alarm, but the appellant forcibly removed his kachha and made him bend down on his knees and thereafter placed his penis on his anus and started pushing it inside. Nazir P. W., who felt great pain, started raising an alarm. It appear` that the appellant was finding some difficulty in penetrating his penis into the anus of Nazir P.W. Thereupon he pulled his penis out and after applying spit again pushed it inside the anus. Nazir P. W. Tried his level Mgt to secure his release but was unsuccessful.
Muhammad Azim and Sabrr P. Ws. On hearing the alarm raised by Nazir P. W., ran back to his house and informed his mother, Mst. Kaki (P W. 7) about the occurrence. The appellant went on committing sodomy for a considerable period. Mst. Kaki P. W. Then came to the dhari of the appellant, accompanied by Sabir and Muhammad Azim P. Ws. And Aziz and Sher Khan (not examined) Muhammad Azim and Sabir P. Ws. Ran away on account of fear. Mst. Kaki P. W. Pushed open the door of the dhari and saw the appellant committing unnatural offence with her son, who was lying on the ground with his face downward The appellant on seeing her, got up and after pushing her aside, managed to run away. Mst. Kaki P. W. Then brought Nazir P. W. To her house. Her husband, Buta (P. W. 2), happened to be away to Okara where he was being treated for T. B. He did not return to his village on that night. This matter was reported to Lambardar Munshi Khan (P, W. 3) by Nazir P. W. The appellant and his father went to the Lambardar and asked him for forgiveness.
The Lambardar replied that the father of Nazir P. W. Was away from the village and that they should meet him on his return. On the next day Buta P. W, returned to the village and learnt about the occurrence. He also learnt that the appellant and his father were asking for forgiveness. On the following day, i.e 12th June 1965 at the instance of the Lambardar, Buta P. W. Took his son Nazir P. W.
To Police Station Okara, where they reached at about I-30 p.m. And Nazir P. W. Lodged first information report Exh. P. A., which was record--ed at his dictation by Moharrir Head Constable lnayat Ullah (P. N' 8). The Moharrir Head Constable then prepared the injury statement of Nazir P. W.
And sent him to the hospital for medical examination. Assistant Sub-Inspector Muhammad Ahmad (P. W. 4) investigated the case. He arrested the appel--lant on 13th June 1965 and also sent him for medical examination. Doctor Mumtaz Ahmad (P. W. 11) on 12th June 1965, at 7-15 p.m. Examined Nazir P. W. And found the following injuries on his person: -
(1) A laceration at 12 o'clock, outside anus 3/4' x. 1/10".
(2) A laceration at 12 o'clock, inside the anus, 3/4' x 1/10".
Nazis P. W. Complained of pain while walking easing him--self. He also felt pain, while he was being examined by the doctor, who took two swabs from inside his anus and sent them to the Chemical Examiner, who vide his report Exh. P. E. Reported that the swabs were stained with semen and blood.
The doctor also examined the appellant on 13th June 1965 and found him capable of having sexual intercourse and that injuries Nos. 1 and 2 had been caused to Nazir P. W. As a result thereof.
3. The appellant denied his guilt and examined Khushi Muhammad and Muhammad Shafi in his defence, Khushi Muhammad (D. W. 1) stated that his elder brother, who was a Lambardar, had gone to Daska for eyes treatment, that while he and Shafi (D. W. 2) were standing in the chowkKaki P. W. Came there and informed them that one Yousaf son of Aziz had committed sodomy with her son.Khushi Muhammad D. W. Asked her to report the matter to Munshi Khan Lambardar and she replied that the Lambardar was not available and that is why she had come to him. He then asked her to go and bring the result of the medical examination and then he would go with her to the police. He further stated that thereafter Mst. Kaki did not come to him again Muhammad Shafi (D.
W. 2) broadly endorsed the statement of Khushi Muhammad D. W.
4. The prosecution case against the appellant rests on the testimony of Nazir, Sabir, Muhammad Azim and Mst. Kaki P.Ws. Coupled with the statement of Munshi Khan P. W. Before whom the appellant had appeared along with his father and had asked him for forgiveness. There is nothing on the record to show that any of aforementioned witnesses had any reason to falsely implicate the appellant. Their evidence also stands corroborated by the medical evidence as well as by the Chemical Examiner. The defence evidence cannot report be relied upon because there is no reason for the P. Ws. To have substituted the appellant in place of Yousaf son of Aziz. In the result an satisfied that the prosecution has successfully brought home the guilt to the appellant.
5. Now the question which requires determination is as to whether the sentence of the appellant should be enhanced.
He acted in a very cruel manner by committing sodomy with a by, who was only nine years old and, therefore, a different sentence is called for. According to clauses (a), (h) of section 4 of the Whipping Act whoever compels, or induces party person by fear of' bodily injury, to submit to an unnatural offence as defined in section 371 of the said Code may be punished with whipping in lieu or in addition to any other punishment for such offence, abetment or attempt be liable under the said Code. The punishment of whipping is subject to the limits mentioned in section 393 of the Code of Criminal procedure, which reads as follows: ---- No sentence of whipping shall be executed by instalments, and none of the following persons shall be punishable with whipping namely
(a) females;
(b) males sentenced to death or to transportation, to impri--sonment for more than five years;
(c) males whom the Court considers to be more than forty-- five years of age."
In the present case the appellant is 23 years of age and has no been sentenced to imprisonment for more than five years and therefore the sentence of whipping in addition to the sentence already awarded to the appellant can be imposed. I, accordingly while maintaining the conviction and sentence of the appellant direct that he should also be given five stripes. The appeal an the revision are disposed of accordingly.