For Muhammad Nawaz Awan C/O 

Abdul RasheedSajid Advocate

2011 P Cr. L J 1549

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD YAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 269-B of 2011, decided on 27th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.496-A---Enticing or taking away or detaining with criminal intent a woman---Pre-arrest bail, grant of---Alleged abductee, daughter of complainant, in her two statements made before Magistrate on different dates had not mentioned anything regarding her abduction, whereas in her subsequent statements recorded by the Police and under S.164, Cr.P.C. she had implicated the accused---Mala fides on the part of the complainant for false implication of accused could not be ruled out---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances. 

Malik Muhammad Ghazanfar Ali Khokhar for Petitioner.

Arshad Mahmood, Deputy Prosecutor-General for the State.

Bashir Ahmad Qureshi for the Complainant.

ORDER

MANZOOR AHMAD MALIK, J.---Muhammad Yar, petitioner, seeks bail before arrest in case F.I.R. No.773 of 2010 dated 9-11-2010 offence under section 496-A, P.P.C. registered at Police Station City Depalpur, District Okara. Precisely allegation against the petitioner is that he along with his co-accused enticed away/abducted Mst. Kausar Bibi daughter of the complainant.

2. Learned counsel for the petitioner, in support of this petition, contends that as per F.I.R. Mst. Kausar Bibi daughter of the complainant was enticed away/abducted on 8-11-2010; that as a matter of fact she was not abducted or enticed away by anybody which is clear from the statement which she made before the learned Magistrate on 10-11-2010 wherein she stated that she has been ousted by her husband after giving beating and even her parents have refused to allow her to live with them; that the alleged abductee further stated that she has serious apprehension to life and she wants to live in Darulaman; that in the said statement she did not say anything regarding her alleged abduction; that thereafter she again appeared before the learned Magistrate on 25-11-2010 and stated that she wanted to go to the house of her parents; that in both these statements there is no mention that said Mst. Kausar Bibi was abducted or enticed away by the petitioner or anybody; that the petitioner is owner of a plot in Lohariwala Depalpur which is close to the house of Muhammad Abdullah witness of this F.I:R. who is pressurizing the petitioner to sell that plot in his favour on throwaway price and on his refusal, on the asking of the said Muhammad Abdullah a false case has been registered against the petitioner.

3. On the other hand, learned counsel for the complainant opposes this bail petition on the grounds that the petitioner is nominated in the F.I.R. with the specific allegation of abduction; that Mst. Kausar Bibi victim got recorded her statement under sections 161 and 164 Code of Criminal Procedure wherein she fully implicated the petitioner in the commission of crime; that section 376, P.P.C. has also been added in the F.I.R.; that there is no mala fide on the part of the complainant and there is sufficient incriminating evidence against the petitioner; that the petitioner has been found guilty during the course of investigation and the offence alleged against him falls within the prohibitory clause of section 497, Code of Criminal Procedure.

4. Learned Deputy Prosecutor-General though opposes this bail petition but states that the Police in its investigation has verified the fact that Mst. Kausar Bibi made voluntary statements before the learned Magistrate on two occasions and in fact she has a liaison with the petitioner.

5. I have heard learned counsel for both the sides. It is mentioned in the F.I.R. that on 8-11-2010 Mst. Naila Bibi alias Rani and Jameel Shehnaz came to the house of the complainant and enticed away daughter of the complainant namely Mst. Kausar Bibi, however, later on Muhammad Ramzan and Muhammad Abdullah informed him that Kausar Bibi had been enticed away/abducted by the petitioner and his co-accused. Said Mst. Kausar Bibi appeared before the learned Magistrate on 10-11-2010 i.e. after registration of the F.I.R. and made a statement which is to the effect that her husband has turned her out of his house and even her parents are not allowing her to live with them and she has serious apprehension to her life. She further stated that she wants to live in Darulaman. She was sent to Darulaman. Then she made another statement before the learned Magistrate on 25-11-2010 wherein she stated that now she wants to go to the house of her parents as she has no apprehension to her life. In both these statements she has not mentioned anything regarding her abduction. These circumstances create doubt in the prosecution case. Though no specific mala fide has been alleged by the petitioner and he has stated that witness of the case namely Muhammad Abdullah is pressurizing him to sell his plot in his favour. But mala fide can be inferred from the facts and circumstances of the case. In this case the alleged abductee while appearing before the learned Magistrate on 10-11-2010 and 25-11-2010 has not stated anything regarding her `abduction whereas in her subsequent statements, which were recorded by the police and under section 164, Cr.P.C, she has implicated the petitioner. In the circumstances, mala fide on the part of the complainant for false implication of the petitioner cannot be ruled A out. Therefore, this is a fit case for the grant of bail before arrest. This petition is accordingly allowed and the ad interim pre-arrest bail already allowed to the petitioner vide order dated 11-1-2011 is hereby confirmed subject to his furnishing fresh bail bond in the sum of Rs.1,00,000 (rupees one lac only) with one surety in the like amount to" the satisfaction of learned trial Court.

6. Before parting with this order, it is clarified that the observations made in this order are tentative in nature and relevant only for the disposal of this bail petition, which shall not influence the learned trial Court in any manner whatsoever.

                                                                                                                   Pre-arrest bail allowed.

  

freelawservices: For Pir Saqab Ali Chishti Advocate 1997 C LC ...

freelawservices: For   Pir Saqab Ali Chishti Advocate

1997 C LC ...: For   Pir Saqab Ali Chishti Advocate   1997 C L C 657 [Lahore] Before Ausaf Ali Khan, J ABDUL GHAFFAR‑‑‑Appellant ver...

For   Pir Saqab Ali Chishti Advocate  

1997 C L C 657

[Lahore]

Before Ausaf Ali Khan, J

ABDUL GHAFFAR‑‑‑Appellant

versus

PUBLIC IN GENERAL and others‑‑‑Respondents

First Appeal From Order No. 26 of 1993/BWP, decided on 17th October, 1993.

Lunacy Act (IV of 1912)‑‑‑

‑‑‑‑S.62‑‑‑Allegation of lunacy‑‑‑Duty of Court‑‑‑Standard of mental capacity of the alleged lunatic‑‑‑Test‑‑‑Inquisition for purpose of ascertaining whether alleged lunatic was of unsound mind and incapable of managing himself and his affairs‑‑‑Essentials‑‑‑Court was required to form its own independent judgment on the mental state of such person‑‑‑Court must satisfy itself by enquiry and personal interview with alleged lunatic that there was ground for inquisition‑‑‑ Question of mental capacity was one for Court to decide and not for the Doctor‑‑‑Court could not be relieved by medical testimony of its obligation to form its independent opinion‑‑‑Exigency to refer such matter to specialist could arise only after examining lunatic and dependent upon observation of Court that alleged lunatic appeared to be lunatic and incapable of looking after his person and property‑‑‑Court's order which had been passed without examining alleged lunatic and same was based on doctor's opinion that said person was not lunatic was not warranted‑‑‑‑Being eccentric slightly weak in head are subnormal intellect would not amount to unsoundness of mind‑‑‑Court was directed to examine alleged lunatic and refer the matter to specialist of Mental Asylum only if it felt necessity to do so‑‑‑Where, however, alleged lunatic qualified minimum standard of mental health and conception of day to day matters, then Court need not solicit opinion of specialist.

Mst. Jamila Begum v. Awam‑un‑Nass and 15 others PLD 1978 Lah 1376 ref

Muhammad Javed Iqbal Qureshi for Appellant.

Mian Ahmad Naveed Arshad for Respondents. Date of hearing: 17th October, 1993.

JUDGMENT

Muhammad Ashraf, alleged lunatic is living with his brother and nephews, herein the respondents Nos.2 to 6. Abdul Ghaffar, herein the petitioner, also brother of said Muhammad Ashraf filed application under section 62/f1 of the Lunacy Act (IV of 1912) seeking it to be declared by the District Court, Bahawalnagar that Muhammad Ashraf was a lunatic, incapable of looking after his person and property.

2. The respondents opposed the petition and in their joint averment asserted Muhammad Ashraf to be perfectly healthy and normal man capable of managing his affairs.

3. After securing presence of the respondents, the learned Additional District Judge referred the matter to the Medical Superintendent, District Headquarter Hospital, Bahawalnagar who vide his report, dated the 18th of August, 1993 found Muhammad Ashraf answering the questions satisfactorily, fully conscious, well‑oriented in time, person and space with memory intact. The petitioner, however, was not satisfied with the report as it had emanated from officiating Medical Superintendent as the Medical Superintendent was on leave on the date of examination. The petitioner, however, insisted that Muhammad Ashraf should be examined in the Mental Asylum, Lahore by a specialist. This plea earlier raised was not accepted by the learned trial Court and also by virtue of the order, dated the 13th of July, 1993 which is now impugned in appeal.

4. Section 62 of the Lunacy Act relates to power of the District Courts to institute inquisition as to person alleged to be lunatic by providing:‑‑

"Where any person is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs."

5. It need not be over‑emphasised that jurisdiction of the District Courts to take further action for custody of person or protection of property is dependent upon finding that a person is of unsound mind and incapable of managing himself or his affairs. When an application is for directing an inquisition the first thing which has to be done by the trial Court is to ascertain, either with notice to the lunatic or without notice, if the case is one which calls for an order directing an inquisition. It is in fact for the Court to form its own independent judgment on the point. The learned trial Court has to satisfy itself by enquiry and personal interview with the alleged lunatic that there is ground for inquisition. This Court had laid down guidelines in Mst. Jamila Begum v. Awam‑un‑Nass and 15 others (PLD 1978 Lahore 1376) that the Court should summon the alleged lunatic and put up homely questions keeping in view the feable‑mindedness and weak intellect of the person alleged to be a lunatic. He could be examined on dietary habits as well as on other points, how was he treated by his relatives with whom he was living, how much land he had, who cultivated it and such like questions.

6. In the instant case learned trial Court had not examined the alleged lunatic. In fact question of mental capacity is one for Court to decide and not for Doctor and the Court cannot be relieved by medical testimony of its obligation to form an independent opinion. It need not be gainsaid that being eccentric, slightly weak in head, or subnormal in intellect does not amount to unsoundness of mind. Of course after examining the alleged lunatic, the Court could refer to matter to the Doctor. Here the officiating Medical Superintendent had examined the alleged lunatic and found him to be normal man. Opinion of the Doctor is relevant and worthy of consideration in view of provisions of section 18 read with section 3 (7) of the Lunacy Act. No doubt the opinion of the Medical Superintendent, Government Mental Hospital, Lahore, being specialist on the subject could furnish better evidence but the learned District Court did not have resort to this course because it was too inconvenient for the concerned, besides being expensive and time consuming. The exigency to refer the matter to the specialist could arise in this case only after examining the lunatic and dependant upon observation of the Court that the alleged lunatic appeared to be lunatic and incapable of looking after his person and property.

7. In view of what stated above, I partly accept the appeal and modify the impugned order with the direction to the learned Additional District Judge to examine the alleged lunatic and refer the matter to the specialist of Mental Asylum only if he feels the necessity to do so. If the lunatic qualified the minimum standard of mental health and conception of day to day matters, then the Court need not solicit opinion of the specialist as the opinion of the local Doctor is already there on the subject and he can very well further proceed with the case. The parties are left to bear their own costs.

                                                                                        Appeal partly allowed

freelawservices: Trile 489-F ppcFrom Accused for Acquittal2013 P Cr...

freelawservices: Trile 489-F ppcFrom Accused for Acquittal2013 P Cr...: Trile 489-F ppc From Accused for Acquittal 2013 P Cr. L J 175 [Balochistan] Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal,...

Trile 489-F ppc

From Accused for Acquittal

2013 P Cr. L J 175

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

NASEEB GUL---Appellant

Versus

AMIR JAN and another---Respondents

Criminal Acquittal Appeal No.216 of 2010, decided on 3rd September, 2012.

(a) Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Prerequisites---Dishonesty on part of the payer---Scope---To constitute an offence under S.489-F, P.P.C., dishonesty on part of the payer was a condition precedent in issuance of a cheque towards repayment of a loan or fulfilment of an obligation---Mere issuance of a cheque and same being dishonoured, by itself was not an offence, unless and until dishonesty on part of the payer was proved.

(b) Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---"Dishonesty", meaning of---"Dishonesty" meant a fraudulent act or intent to defraud others, especially creditors and lien holders.

(c) Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---"Dishonour", meaning of---Word "dishonour" used in S.489-F, P.P.C meant failing to honour a cheque, with an intent to defraud and befool a payee towards repayment of a loan or fulfilment of an obligation, just to disgrace or put him in a state of shame.

(d) Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Cheque not issued wilfully and intentionally---Dishonest intention not proved---Transaction forming liability for payment not disclosed---Accused (respondent) was alleged to have issued a cheque to the complainant (appellant) which was dishonoured on presentation---Trial Court convicted and sentenced the accused but he was acquitted of the charge by the First Appellate Court---Validity---Complainant had admitted catching hold of the accused for repayment of loan to which the accused replied that he had no amount to repay the loan---Despite such circumstances, accused was forced to issue the cheque in question, therefore, it was not voluntary rather the complainant used force and compelled the accused to issue the cheque---Facts proved that accused did not issue the cheque wilfully and intentionally---Bank representative, appearing as prosecution witness, admitted in his cross-examination that complainant had a signed blank cheque book pertaining to the account of the accused and complainant separated one leaf from the said cheque book, filled it and presented it to the bank---Bank representative had informed the complainant that there was no amount in the account of the accused, but despite such fact complainant opted to produce same, which showed that he wanted to trap the accused---Complainant did not produce a single witness to prove the dishonest intention of the accused---Complainant alleged that accused owed him an amount but did not disclose the terms and conditions of the transaction between them or its mode of payment---Complainant used the cheque according to his own whims and wishes, therefore, in the event of same being dishonoured, accused could not be held responsible for the same---Appeal against acquittal was dismissed in circumstances.

            Rizwan Ejaz and Adnan Ejaz for Appellant.

            Date of hearing: 24th July, 2012.

ORDER

            JAMAL KHAN MANDOKHAIL, J.---Briefly stated facts of the case are that the appellant registered an F.I.R. No.160 of 2009, under section 489-F, P.P.C. against the private respondent. It is alleged that the respondent issued a Cheque bearing No.285057 dated 20th May, 2009 amounting to Rs.10,12,000, which was dishonoured. After completion of the investigation, the challan was submitted before the Court of the Judicial Magistrate, Loralai. The prosecution, in support of its case, produced four witnesses along with copy of the cheque and a certificate issued by the bank. In reply, the respondent was examined under section 342, Cr.P.C. After conclusion of the case, the trial Court convicted and sentenced the respondent by mean of the judgment dated 21st July, 2010. Feeling aggrieved, he preferred an appeal before the Court of the Sessions Judge, Loralai, which was allowed and the respondent was acquitted of the charge vide order dated 13th August, 2010, hence this appeal.

2.         Learned counsel for the appellant stated that the Sessions Judge, Loralai, while allowing the appeal, has failed to follow the relevant provisions of law and has come to a wrong conclusion. He stated that the issuance of the cheque and the fact that it was dishonoured has been successfully proved by the appellant through the reliable witnesses, therefore, there was no option for the appellate Court, except to believe the evidence, but the Sessions Judge by mis-exercise of the jurisdiction has come to a wrong conclusion, therefore, the order impugned amounts to mis­appreciation and non-appreciation of the evidence, which is an illegality  and  irregularity,  on  the  basis  of  which,  the  same  is liable to be set aside.

3.         We have heard the learned counsel for the appellant and have gone through the record. It is the case of the appellant that since the cheque has been dishonoured, therefore, the private respondent was liable to be sentenced. Before dilating upon the merits of the case, it would be appropriate to reproduce section 489-F, P.P.C. as under:--

            "489-F Dishonestly issuing a cheque:---Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured  and  that  the  bank  was  at  fault  in  not  honouring the cheque.

            To constitute an offence under this section, dishonesty on the part of the payer is a condition precedent in issuance of a cheque towards re-payment of loan or fulfilment of an obligation. Thus, it is for the Court to consider that under which circumstances, the cheque was issued and what was the intention of a person, issuing it. The words "whoever dishonestly issues a cheque" used in this section shows the intention of the legislature that to constitute an offence, it must be proved that the cheque has been issued dishonestly. Dishonesty means a fraudulent act or intent to defraud others, especially creditors and lien holders. Similarly, the word "dishonour", used in this section means fail to honour a cheque,  with  an  intent  to  defraud and  befool  a   payee  towards re-payment of a loan or fulfilment of an obligation just to disgrace or put him in a state of shame. Hence, mere issuance of a cheque and it being dishonoured by itself is not an offence, unless and until dishonesty on the part of a payer is proved.

            On the touchstone of the above analysis, it is to be considered as to whether the cheque was issued by the respondent No.1 to the appellant dishonestly, which was dishonoured?

            In this behalf, the statement of the appellant is of a great importance, relevant portion whereof is as under:--

            The appellant himself stated that he caught hold of the respondent No.1 and asked him to pay the loan, to which the respondent replied that he has no amount to pay. Despite such fact, the respondent was forced to issue the cheque, which he did, as such, it was not voluntary, rather the appellant by use of force, compelled the respondent to issue it. This fact proves that the respondent did not issue the cheque wilfully and intentionally. Similarly, the P.W.2 who is representative of the Bank, admitted in a cross-examination that the appellant had a blank cheque book, pertaining to the account of the respondent, signed by him. Out of the said cheque book, the appellant separated one leaf, filled it and presented it to him. The witness informed the appellant that there was no amount in the account of the respondent, so why he was presenting the cheque, but despite such fact, the appellant opted to produce it, which shows that he wanted to trap the respondent. The appellant did not produce a single evidence to prove the dishonest intention of the respondent, nor did the appellant utter a single word to show his disgrace or feeling of shame due to dishonour of the cheque, The appellant alleged that the amount was due against the respondent No.l, which he had to pay. Considering such contention, the appellant did not disclose as to what were the terms and conditions of the transaction, if any? And what was the mode/date(s) of payment. The statement of the P.W. proves that the appellant had a complete cheque book of the respondent No.1, but it is not known as to under which circumstances, the appellant was able to obtain it. The appellant used the cheque according to his own whims and wishes, therefore, in case the cheque  is  bounced  by  the  respondent  No.1  cannot  be  held responsible for it. The evidence and the material available on record do not constitute an offence under section 489-F, P.P.C., rather the statements of the appellant and his witnesses absolve the respondent No.1 from the allegation.

5.         Even otherwise, after the acquittal, the respondent No.1 earned a double presumption of innocence in his favour, therefore, to disturb such findings, strong and cogent evidence is required, which is lacking in the present case. The learned counsel for the appellant has failed to point out any illegality or irregularity, therefore, we are not inclined to interfere into a well-reasoned order of acquittal passed by the learned Sessions Judge, Loralai.

        Thus, in view of what has been stated and discussed hereinabove, the appeal is accordingly dismissed in limine.

                                                                                           Appeal Dismissed.

freelawservices: Trile 377 PPCFrom : Complenent2013 P Cr. L J 800 [...

freelawservices: Trile 377 PPCFrom : Complenent2013 P Cr. L J 800 [...: Trile 377 PPC From : Complenent 2013 P Cr. L J 800  [ Peshawar ] Before Assadullah Khan Chamkani, J  HAZRAT BILAL---Appellant ...

Trile 377 PPC

From : Complenent

2013 P Cr. L J 800

 [Peshawar]

Before Assadullah Khan Chamkani, J

 HAZRAT BILAL---Appellant

 Versus

 The STATE and another---Respondents

 Criminal Appeal No.56 of 2012, decided on 15th October, 2012.

 (a) Penal Code (XLV of 1860)---

 ----S.  377--- Juvenile  Justice  System  Ordinance  (XXII  of  2000), S.11(a)---Unnatural offence (sodomy)---Appreciation of evidence---Sodomy committed in a mosque---Heinous and gruesome act---Release of juvenile on probation---Scope---Accused (juvenile) was alleged to have committed sodomy with his victim in a mosque---Trial Court convicted the accused under S.377, P.P.C. and sentenced him to seven years' R.I.---Validity---Four hours delay in lodging of report had been reasonably explained by the complainant (victim), who stated in his report that on arrival to his house, he narrated the incident to his mother, who in turn informed his uncle, therefore, delay in lodging F.I.R. was not exceptional---Fact that victim, who was a boy aged about 7 to 8 years, could make out a false case to involve the accused or  he could substitute the accused for someone else, was not believable---Victim did not carry any ill-will, grudge or malice against the accused to falsely implicate him in the case---Complainant (victim) had fully implicated the accused for commission of the unnatural offence---Version of complainant (victim) was further corroborated by medical evidence---Doctor had noted bleeding from the anus of the victim and confirmed that he was sodomized---Doctor had also testified that accused was able to perform sexual acts---Although under S.11(a) of Juvenile Justice System Ordinance, 2000, court had discretion to release a juvenile  on probation but in the present case accused-juvenile had committed sodomy in a mosque, which was heinous, scandalous, gruesome and brutal and release of accused on probation would give the public an impression that there was no law to restrain people from commission of such like offences---Conviction and sentence of accused under S.377, P.P.C.  was  maintained,  however  fine  of  Rs. 5,000 was also imposed on him along with the direction to send him to a borstal institution until he attained the age of eighteen or for the period of imprisonment, whichever was earlier---Appeal was dismissed accordingly.

 (b) Criminal trial---

 ----Delay in lodging of report/F.I.R.---Conviction---Effect---Delay in lodging report was not fatal to the prosecution, especially when identity of accused was not doubted and other sufficient evidence on record established guilt of accused.

 (c) Penal Code (XLV of 1860)---

 ----S. 377---Unnatural offence---Solitary statement of victim---Conviction--- Scope--- Conviction  could  be  based  on  solitary statement  of  victim provided  same  was  capable  of  being  relied upon and was corroborated by medical as well as circumstantial evidence.

            Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 and  Rana  Shabaz  Ahmad  and  2  others  v.  The  State  2002  SCMR 303 rel.

Fayaz Muhammad Qazi for Appellant.

 Akhtar Munir Khan for the Complainant.

            Ikram Ullah Khan A.A.-G. for the State.

            Date of hearing: 15th October, 2012.

 JUDGMENT

            ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 16-3-2012 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Matta, whereby Hazrat Bilal , the appellant, involved in case F.I.R. No.131 dated 22-6-2011 under section 377, P.P.C. read with section 12 of the Offences of Zina (Enforcement of Hadood) Ordinance, 1979 registered at Police Station Kalakot Matta, was  convicted  under  section  377,  P.P.C.  and  sentenced  to  undergo seven  years,  however,  benefit  of  section  382-B,  Cr.P.C. was extended to him.

 2.        Facts  of  the  case  are  that  complainant  Daud  aged  about eight (8) years lodged a report that on 22-6-2011 he had gone to Madrasa of "Masjid Sadiq" on that day Qari Sajid Ullah was not present, therefore, Monitor Bilal son of Muhammad Basheer at 1600 hours permitted the other boys to go back, however, he was directed to stay here. When the other boys got out from the Madrasa, Hazrat Bilal forcibly took off his trousers and committed sodomy upon him. After the commission of offence, the accused directed him not to disclose the event to anyone. Thereafter, he came to his house and narrated the occurrence to his mother and she informed his uncle. The report of complainant was reduced into writing in shape of F.I.R. Exh.PA, which the complainant signed as token of its correctness while Muhammad Usman, the uncle of complainant, signed the same as its rider.

 3.        After completion of the investigation, challan was submitted in the Court for trial. Since, the accused was declared as Juvenile Offender, therefore, his case was tried by the Judge, Juvenile Court, constituted under the Juvenile Justice System Ordinance, 2000. Learned trial Court, after conclusion of the trial and hearing the arguments of parties, convicted the present appellant as stated above.

            Learned counsel for the appellant­-convict argued that the judgment of learned trial Court is against law and facts which is the result of misappreciation of evidence on record. He argued that there is four hours delay in lodging of report, therefore, the question of deliberation and consultation cannot be ruled out. He argued that the evidence furnished by the complainant as P.W.2 is not in consonance with the other P.Ws. and is full of contradictions. He argued that the trial Court has totally ignored the factum of age of the appellant and also the provisions of Juvenile Justice System Ordinance, 2000 as in case of conviction it was required for the trial Court to have sent the appellant to Borstal House or otherwise to release him on probation. He argued that the prosecution has miserably failed to prove its case against the appellant-convict, therefore, the sentence is liable to be set aside and the appellant/convict deserves acquittal.

            Learned A.A.-G. appearing on behalf of the State and learned counsel for complainant argued that the appellant is directly charged by the complainant-cum-victim in the F.I.R. for committing sodomy upon him. He argued that the victim is aged about 7/8 years and his statement is cogent, consistent and convincing and in spite of lengthy cross-examination it could not be shattered, therefore, his statement alone is sufficient for conviction of the accused. He contended that the prosecution evidence is fully corroborated by the statement of doctor and the report of Chemical Examiner. He finally submitted that the accused committed sodomy with the victim in sanctified place, i.e., mosque and the defence failed to prove any enmity between the accused and the complainant, therefore, the sentence awarded to the accused by the trial Court may be maintained.

 4.        Arguments of learned counsel for the parties were heard and record of the case perused.

 5.        No doubt, there is delay in lodging of the report for about four hours but the same has reasonably been explained. The complainant stated in his report that on arrival to his house, he narrated the happening to his mother, thereafter, his mother informed his uncle, therefore, delay, if any, in lodging of F.I.R. is not exceptional in our society as the people  avoid  the  glare  of  undesired publicity  and  the  parents  in such  like  cases  feel their  disgrace  and  humiliation  to  which  they were  put  to  by  the accused,  therefore,  delay  of  four hours  in making  the  F.I.R.  is  not fatal  to  the  prosecution case  in  such like cases  specially  when the  identity  of appellant-convict is not doubted and other sufficient evidence on the record which established the guilt of convict-appellant.

 6.        The charge levelled against the appellant is of very grave in nature as the complainant-victim, a boy of 7/8 years caught hold by him and committed sodomy upon him in and that too, in the place of worship. A careful examination of the statement of victim Muhammad Dawood shows that he has narrated the occurrence in detail. It is consistent and rational and it is unbelievable that a boy of 7/8 years could make out a false case to involve the appellant or that he could substitute the accused for someone else. The complainant has fully implicated the accused for commission of unnatural offence with him. The version of complainant has further been corroborated by the medical evidence. Dr. Hadayat Ullah when appeared as P.W.7 fully supported the version of the complainant and confirmed his report marked as Exh.P.W.7/1. He stated that he examined the victim minor Dawood aged about eight (8) years brought to him by Constable Zahid Ullah. He further noted bleeding from anus of the victim and confirmed that the victim was sodomized. P.W.1  Dr. Manzoor has testified that accused is adult and able for sexual act.

 7.        It is undisputed that the victim of the occurrence namely Muhammad Dawood at the time of occurrence was aged about 7/8 years, who did not carry any ill-will, grudge or malice against the appellant to falsely implicate him in the case. The accused has committed sodomy upon the minor in the mosque. The medical Officer admittedly was an independent person has no reason to give false statement favouring the victim. Penetration has been proved as the Medical Officer found bleeding from the anus of the victim at the time of examination. The complainant (P.W.2) and the Medical Officer (7) were subjected to lengthy cross-examination by the learned defence counsel but nothing damaging aspect was extracted from their mouth. The statement of the victim is reliable and trustworthy arid cannot be discredited in any manner whatsoever while the contradictions pointed out by the learned counsel for the appellant would not make the whole case unbelievable rather it could very easily be ignored.

 8.        The contradictions referred to by the learned counsel for the appellant are not fatal to the case of the prosecution being minor on all the important issues and facts, particularly, when no enmity was shown between the parties and the statement of complainant was fully supported by the evidence of Medical Officers, Investigating Officer and positive report of FSL. In such like cases, conviction could be based on the solitary statement of the victim provided the same is capable to reliance and is corroborated by medical as well as circumstantial evidence. Reliance in this regard is placed, on the cases of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 412 and Rana Shabaz Ahmad and 2 others v. The State 2002 SCMR 303 wherein it has been held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence.

 9.        So far as the argument of learned counsel for non-releasing the appellant on probation by the trial Court is concerned, no doubt, under section 11(a) of the Juvenile Justice System Ordinance the Court has discretionary powers to release on probation a child found to have committed the offence but his request is not convincing one because as per evidence the accused has committed sodomy in the holy place. Malakand Division is special area and the people over there always strive hard for implemtation of Sharia laws. The appellant has committed the offence in the holy mosque which is heinous, scandalous gruesome, brutal and the punishment is one of the modes to give an impression of deterrence to the public at large and release of appellant on probation in such like cases would certainly give an impression that no law is there to restrain people from the commission of such like offences. We have to curb such like offences otherwise it would definitely affect the whole society. However, it is ordered that the appellant-convict be sent to a Borstal institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier.

 10.      As a sequel to above discussion, I am of the firm view that the impugned judgment does not warrant any interference, which is maintained. The punishment provided for section 377, P.P.C. shall be imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years and shall also be liable to fine. Since, the trial Court has only convicted and sentenced the appellant under section 377, P.P.C. for seven years imprisonment and not imposed fine, which is mandatory, therefore, the accused  is  also  fine  to  Rs.5,000,  which  shall  be  paid  to  the  victim and in case of non-payment of fine he shall further undergo SI for six months.

                                                                       This appeal is dismissed