1. ' USMAN Au SHAH, J.-This acquittal appeal filed by the State calls in question the judgment of the Magistrate, First Class, IX I. Khan dated 24-4-1975 by which he acquitted the accused/respondents of the charge under section 377/34, P. P. C.
2. ' Briefly, the prosecution story is that at peshin time on 21-5-1973, complainant Noor Zaman, a boy of 14/15 years of age, resident of village Garah Rahman, Tehsil and District D. I. Khan was grazing a herd of sheep and goats in the limits of Garah Hissam. Accused Attaullah and Amanullah were also grazing their goats there. Meanwhile, the two accused approached him and asked him to submit himself for sodomy, but he refused. Upon this, the accused caught hold of him and forcibly committed sodomy on him. P. W. Abdul Ghaffar who was also grazing goats in that vicinity on hearing noise from that direction went there and saw the accused indulging in committing sodomy on the complainant. Thereafter, the accused decamped and complainant P. W. Noor Zaman narrated the episode to P. W. Abdul Ghaffar. It further transpires from the evidence on record that P. W. Ghulam Qasam, the father of complainant. Noor Zaman, was not available in the village until evening, as he had gone to'village Gomal ; and on his arrival, the complainant informed him of the occurrence. P. W. Ghulam Qasam approached Hayat Khan and Nazar Hussain and on their advice he reported the occurrence at P. S. Saddar, D. I. Khan, vide F. I. R. (Exh. P. A).
3. ' Dr. Muhammad Haleem (P. W. 7) examined complainant Noor Zaman and, inter alia, found marks of violence in and around the anus of the complainant. The shalwar of the complainant was sent to the Chemical Examiner whose report was that the same was found by him to be stained with semen.
4. ' The two accused were examined by Dr. Muhammad Israr (P. W. 8) who found both of them to be capable of performing sexual intercourse. Their lungis were also sent to the Chemical Examiner and he reported that the same were stained with semen.
5. ' In the trial Court, the prosecution produced complainant Noor Zaman (P. W. 2), his father dhulam Qasam (P. W. 4), Abdul Ghaffar (P. W. 3), Muhammad Hayat W. 1), Dr. Muhammad Haleem (P. W. 7), Dr. Muhammad Israr (P. W. 8) and A. S. I. Abdul Manan (P. W. 5). It also relied on the report of Chemical Examiner who found the shalwar of the complainant and the lungis of the two accused to have been stained with semen. As against it, the accused denied the charge against them saying that they are innocent and falsely charged due to enmity.
6. ' The learned counsel for the accused submitted that the charge against his clients would appear to be false in view of the evidence brought on the record of this case, in that there are contradictions appearing in the statements of the witnesses. He referred to Mirro v. Emperor (1) and Emperor v. Sain Das (2) to show that upon the nature of evidence as in the present case, their Lordships disbelieved the prosecution case and acquitted the accused. We have gone through these two cases and have not been able to find out that as concerns evidence, the said two cases are identical with the present one. In the first mentioned case, there neither was any medical evidence to support the allegation that sodomy had been committed upon the complainant nor was it proved that the accused had intended to commit sodomy upon him. In the second mentioned case also, there was no medical evidence to show that the complainant had been subjected to unnatural offence, moreover the occurrence had allegedly taken place in broad daylight in a Public place and thus it was found unbelievable that the accused had attempted to commit sodomy upon the complainant. In the circumstances, his Lordship
(1) AIR 1947 Al 97 (2) AIR 1926 Lah. 375 observed that the evidence in support of a charge under section 377, P. P. C. Has to be very convincing.
7. ' The learned counsel next contended that on the advice of D. W. Nazar Hussain and P. W. Hayat Khan, the complainant had reported the matter, but D. W. Nazar Hussain has stated that P. W.
8. Ghulam Qasam, the father of complainant Noor Zaman, had said that his son had not identified the culprit. He also took exception against the evidence of P. W. Abdul Ghaffar and contended that he had not seen the occurrence, but as he was the relative of the complainant party, he was introduced to falsely depose against the accused.
9. ' We have carefully gone through the evidence on record, but have not been able to agree with the learned counsel. In view of the medical evidence, it is clear that the complainant was subjected to unnatural offence. It may be observed that once it is found as a fact that the victim was subjected to unnatural offence, it would be idle to contend that he has falsely substituted an innocent person for the real culprit. 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 accused are the co- villagers of the complainant and thus there would be no question of mistaken identity. D. W. Nazar Hussain, who was abandoned in the trial Court and was produced as D. W., seems to have been won over by the accused party. But P. W. Hayat Khan has contradicted him in what he had deposed. Now P. W. Hayat Khan is a disinterested person. He is not related to the complainant party nor has he any enmity with the accused party and thus his evidence inspires confidence in the circumstances of the case. As regards P. W. Abdul Ghaffar, even if no notice is taken of his evidence, in a case of this nature the evidence of complainant, his father P. W. Ghulam Qasam and P. W. Hayat 'Khan coupled with the medical evidence would be sufficient to hold the accused guilty of the crime.
10. ' The learned counsel for the accused further contended that even if the accused are found to have committed the crime, they would be guilty under section 342, P. P. C., for according to the medical evidence "Intercourse was done with the victim but the penis had not been fully introduced into the anal canal but discharged superficially around the anal margins". In support of his contention, the learned counsel relied upon Maazullah v. The State (1). In that case the accused was charged under section 377/511, P. P. C. The victim was medically examined and the result of the examination was that only mucous membrane of the surface of his anus was found red and congested and inside the anal canal there was a laceration of 1" in degree. The learned trial Magistrate found him guilty of the offence and sentenced him to five years' R. I. On appeal, a learned Single Judge of this Court found the accused guilty of an offence under section 342/323, P. P. C. And sentenced him to one year's R. I. Under each of the sections with direction that the two sentences would run concurrently. In this respect, the only reason which weighed with his Lordship was that accused deliberately abstained from proceeding to the stage of penetration and thus cannot be said to have attempted the offence under section 377, P. P. C. With respect, we have not been able to subscribe to this authority. Section 342 deals with illegal confinement only and it does not go beyond that as to cover a case in which the accused is found to have committed sodomy. While section 323, P. P. C. Deals with voluntary hurt and we do not agree that it would refer to a case of unnatural offence. Let us illustrate the
(1) PLD 1961 Pesh. 7 scheme of section 323, P. P. C. A is in possession of some sort of weapon and with it he has, without any rhyme or reason, attacked B as a result of which sustains injuries. In a case of this nature, A can be charged under section 323, P. P. C. For causing voluntary hurt to B. Sections 342 and 323, P. P. C.; therefore, cannot take the place of section 377, P. P. C. Unless it is proved that as a matter of fact neither the accused had committed nor intended to commit sodomy upon the victim. Section 377, P. P. C. May better be reproduced :- "Unnatural offence.-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
11. ' A look at this provision will show that there would be no occasion for the Court to look for another provision of the Penal Code if an accused is found to have been indulging in carnal intercourse against the order of nature with any man, woman or animal. In the present case, the two accused were pointedly charged for an unnatural offence with the complainant and having found them guilty, they will have to be convicted under section 377, P. P. C. Even the explanation to this section would not absolve the two accused of the offence, in that it says that :- "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
12. ' It will be seen that what this section conveys is that penetration is sufficient even if there would be no discharge in the course of sexual intercourse. There can be no two opinions about the words "sufficient" employed in this Explanation. In other words, whether penetration would be full or otherwise, it will serve the purpose of this Explanation. The dictionary meaning of the word "sufficient" would also appear to support this conclusion. This word has been defined to me in, 'adequate', 'enough', `as much as may be necessary to answer the purpose intended'. It would thus be clear that once in a case of this nature it is proved that sodomy was committed upon the victim, the Court will have no option but to hold that the accused had implemented his intention and would not go into the question as to which degree he has committed the sodomy upon the victim. In other words, if it is proved that he has committed sodomy, he would be guilty under section 377, P. P. C. Even if he is found to have not fully enjoyed his sexual lust.
13. ' Upon the evidence brought on the record of this case, the two accused were not only to have introduced their penis into the anus of the complainant, but they were found to have discharged in the course of sexual intercourse with him. We, therefore, allow this appeal. Consequently, the two accused are convicted under section 377, P. P. C. And sentenced each one of them to three years' R.
14. I. And a fine of Rs, 500 or in default further R. I. For six months.
15. Appeal allowed