' Mudassir Hussain accused/appellant has filed this appeal against the judgment dated 16-6-2003 of the Additional Sessions Judge, Attock, convicting him under section 377, P.P.C. And sentenced to ten years' R.I. With a fine of Rs,20,000 and in default to undergo further three months' S.I. Benefit of section 382-B, Cr.P.C. Was extended. He was acquitted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 relating to the charge of abduction.
' The accused/appellant was further directed to pay Rs,30,000 as compensation to the victim under section 544-A, Cr.P.C.
2. Briefly stated F.I.R. No,49, dated 19-4-2003 Police Station Basal, District Attock was registered at the instance of one Muhammad Ejaz, complainant with allegations that offence of sodomy was committed with his son Tausif Ejaz by the accused/appellant. According to the facts narrated in the F.I.R., victim was a minor aged about 12 years and was proceeding to mosque for his prayers and in the way, he was taken over by the accused/appellant to his house and in the room forcibly removed his Shalwar and committed the act of sodomy.
3. The accused/appellant was charge-sheeted on 23-5-2003 but he did not plead guilty and claimed trial. Further undertook to produce defence evidence if needed. Thereafter, the prosecution evidence was recorded.
4. The occurrence took place on 19th of April, 2003 and promptiA F.I.R. Was recorded on the same day.
5. The victim was medically examined by P.W.3 Dr. Sher Muhammad, who deposed that "the anal and preanal region, there was no specific mark of violence. Anyhow the anus somewhat dilated. On dilating the anal sphincter the inner mucosa is ruptured. The rupture was vertical. On the upper margin of anus Which was 3/4 c.m. In length, there was slight oozing of blood, from ruptured mucosa. The preanal region was almost showing no particular mark of violence, except the above said".
6. Three swa bs from anal and preanal region were taken and sent to the Chemical Examiner for analysis, who prepared a report Exh.P.G. With positive result that "the above swabs are stained with semen". There were three anal swa bs marked 353, 354, 355 and the sperm was found. From this, it is amply demonstrated that the report was positive.
7. The victim Tausif Ejaz, minor aged about 11/12 years appeared as P.W.5 deposed that "on 19-4- 2003, I was proceeding towards Lari Masjid to offer my Zohar prayer. I also recite Qur'an in the said mosque by heart. On the way accused Mudassir Hussain present in the Court came across.
Accused asked me to accompany to his house. I went along with the accused to his house.
Accused took me inside the room. Accused, thereafter, opened the string of my Shalwar and forcibly committed sodomy upon me. I tried to raise alarm . Whereupon the accused put his hand on my mouth threatening me to death. Due to fear of life I kept quiet. Thereafter, instead of going to mosque I came back to my house. I narrated the aforesaid occurrence to my. Mother. My father is presently serving at Islamabad. On the day of occurrence he came back to the house at about 4- 00 p.m. The aforesaid occurrence was narrated to him. My father took me to Basal Police Station and the matter was reported there. Thereafter I was taken to Domail Hospital for medical examination, where a doctor conducted my medical examination. After the medical examination I came back to my house".
' The victim was cross-examined in detail by the defence counsel.
7-A. The accused/appellant was examined under section 342, Cr.P.C. With a plea that he has been falsely involved in the case at the instance of one Ghulam Haider, who was in litigation with his family. The defence plea of the accused is fully incorporated in the judgment of the trial Court.
Documents Exh.D.B. To Exh.D.G. Were also filed by the accused/ appellant in support of his case.
8. Learned counsel for the appellant in support of his plea has raised two-fold arguments, firstly that there is a major contradiction in statement of the victim, therefore, the appellant is entitled to acquittal. Secondly, that the sentence passed in this case is very excessive.
9. After considering the evidence of P.W.3 Dr. Sher Muhammad, it is abundantly clear that the victim was subjected to sodomy. The medical evidence shows the condition of the anus after commission of offence. It is deposed by the doctor that anus was somewhat dilated and on dilating the anal sphincter, the inner moucosa was ruptured, which was vertical. The doctor was cross-examined but nothing could be found in favor of the defence. The statement of the doctor alone is sufficient to hold the commission of the offence.
10. Not only the statement of P.W.3 Dr. Sher Muhammad but swabs were sent to the Chemical Examiner and his report ,was positive. The semens were found in all the three swabs.
11. Considering the evidence of the victim as P.W.5. He has narrated all the events and categorically stated that he was taken by the accused/appellant to his house and in one room he forcibly committed sodomy with him. In the circumstances the statement of the victim/minor aged about 11/12 years is reliable and trustworthy and cannot bell discredited in any manner whatsoever.
12. Learned counsel for the appellant argues that after the commission of the offence the victim proceeded to the mosque whereas in his examination-in-chief he was stated to have gone to his house. From this, the learned counsel wants to quash the whole proceedings. I am not impressed by the plea of the learned counsel. The victim was subjected to very cruel behaviour and because of the act of sodomy by the accused/appellant, the victim was suffering mentally and psychologically.
13. Even if there is a contradiction, the statement of the doctor as well as the positive report of the Chemical Examiner, it is abundantly proved that the offence has been committed and the contradiction pointed out by the learned counsel for the appellant would not make the whole case unbelievable.
14. The learned trial Court while dealing with the issue of contradiction observed that the small boy was subjected to cross-examination at length by the learned defence counsel and because of his minority certain lapses have come on record. I am in agreement with the view of the learned trial Court and I am of the firm view that the accused/appellant has committed the offence of sodomy with the victim.
15. I am, therefore, in complete agreement with the learned trial Court that this contradiction on part of the victim cannot change the whole complexion of the case and the fact of the matter is that the victim/minor was subjected to sodomy by the accused/ appellant.
16. The defence plea of the accused is always very important in the trial. Court for the purposes of decision and this has to be viewed in the present case. It has been pleaded that the accused was falsely implicated at the instance of one Ghulam Haider with whom the accused/appellant was in litigation. Apart from the statement of the accused/appellant, he has placed on record documents Exh.D.B. To Exh.D.G.
17. Exh.D.B. Is a copy of the application dated 14-10-2002 by one Muhammad Ameen for the demarcation of Khasra numbers. Exh.D.C. Is the copy of application, dated 13-11-2000 of the civil suit filed by Ghulam Haider against Ghulam Murtaza and others for the determination of the right of way. Exh.D.D. Is a copy of the plaint dated 1-11-2002 filed by Ghulam Haider against Ghulam Murtaza under section 12(2) read with section 151, C.P.C. For cancellation of the judgment, dated 23- 9-2002. Exh.D.E. Is a copy of Kalandra by Ghulam Haider against Fida Hussain and others. Exh.D.F. Is the copy of Kalandra by Niaz Hussain against Ghulam Haider. Exh.D.G. Is the copy of F.I.R. Dated 18- 1-2003 under section 379/447, P.P.C. Filed by one Niaz Hussain.
' The entire documentary evidence has been examined by me and this does not show that this is relatable to the facts of the present case or that the accused/appellant had been involved because of this litigation. I agree with the finding of the trial. Court in para.11 of the judgment that in all the documents Exh.D.B, to Exh.D.G. The complainant does not figure anywhere or he was concerned with the litigation so stated in these documents, therefore, this documentary evidence is not at all helpful the accused/appellant. The positive defence plea of the accused/appellant has not been proved showing that he committed the offence. In these circumstances the case of the prosecution was proved beyond any shadow of doubt.
18. After carefully examining the statement of the victim I feel that the same is trustworthy, reliable and confidence inspiring. It is held by the Honourable Supreme Court in Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412; Rana Shahbaz Ahmad and 2 others v. The State 2002 SCM R 303 that in such circumstances the conviction can be based on solitary statement of the victim, which is the case here.
19. The accused was also medically examined and found to be sexually potent. His aged is 19 years while that of the victim is 11 years.
20. It is correct that there is no grouping test but the accused/ appellant never claimed that the same should be conducted. However, this can be a lapse on the part of the police. In Shahzad alias Shaddu and others v. The State 2002 SCM R 1009 the Honourable Supreme Court held that if there is other evidence to hold accused guilty then the grouping test cannot effect the prosecution case: I agree with the finding of the learned trial Court that no enmity has been shown between the parties and the prosecution has proved its case beyond any shadow of doubt.
21. The accused/appellant is 19 years old and not a previous convict but is a menace to the society.
It is expected that he would reform himself mentally. On the facts and circumstances of the' case, the conviction of the accused/appellant is maintained but the sentence is reduced from ten years'
R.I. To eight years' R.I. With fine of Rs,20,000 and in default to undergo further three months' S.I. In addition to this the appellant will pay, as ordered by the trial Court, a sum of Rs,30,000 to the victim by way of compensation.
22. With modification as above, the appeal is dismissed.
23. Office to immediately inform the learned counsel for the parties as to the decision of this case.
Sentence reduced.