1984 P Cr (PLP)

Aftab Hussain, C.J.-- Muhammad Ashraf appellant was convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. by the learned Additional Sessions Judge, Chunian on the 14th of April, 1983. For the first offence he was sentenced to 20 years' R.I., five stripes and Rs.2,000 as fine, in default of payment of which he was directed to undergo further rigorous imprison ment for a period of 4 months. For the second offence he was sentenced to 20 years' R.I., and Rs.2,000 as fine, in default of payment of which he had to stiffer further 4 months' R.I. Both the sentences were ordered to run concurrently.

2. The prosecution case is that on the 29th of September. 1981, at about 1-30 p.m. the appellant went to the house of Mst. Haliman Bibi p.W.2 and asked her child Salim, aged 5 years, to accompany him to play with him. Obviously Mst. Haliman Bibi did not raise any objection to this request which was on the face of it quite innocent. After a short while she heard the shrieks of her son and ran towards the house of the appellant and saw him committing carnal intercourse against the order of nature with the child. Bashir Ahmad P.W.3 was also attracted to the spot and he also saw the commission of the offence. Another person, Amin too was attracted to the spot but he was given up as having been won-over. The appellant made good his escape.

3. The first information report of the offence was given at about 10 P.M. because Mst. Haliman Bibi had been waiting for her husband, who had gone to Lahore in connection with his work. The Police Officer sent the child to the Hospital for medical examination and himself visited the spot and recorded the statements of the witnesses including Bashir Ahmad, P.W.3.

4. Doctor Muhammad Ashraf P.W.1 medically examined Salim, aged 5 years, and found as follows: - "Clotted blood was present around the anus. Anus was patulous and painful on examination. Laceration was present at 12.00 o'clock when examined knee elbow position measuring 1 cm x 1/3 cm at muco cutanious junction. Two anal swabs were taken for onward transmission to Chemical Examiner for detection of semen. Injury was caused by penetration and was 12 to 24 hours old."

5. The appellant was also medically examined by the same Doctor for potency. He found nothing which could indicate that he was not potent. On the other hand, he found that he was potent. In cross-examination he denied that the injury could be the result of fall on any hard or pointing, penetrating substance like wood.

6. The prosecution case rests upon the evidence of Mst. Haliman Bibi and Bashir Ahmad P.Ws. 2 and

3. Both of them made straightforward statements which inspire full confidence about their truthfulness. The evidence establishes the case against the appellant beyond any shadow of doubt.

7. The appellant explained in his statement recorded under section 342, Cr.P.C. the reason why the P.Ws had given the evidence against him. He stated as follows: "One Bashir Gujar used to visit the house of Mst. Haliman Bibi and my father had stopped him from visiting her house due to which the P.Ws are inimical. Then I had made a show-case for Mst. Haliman Bibi and she owed me some amount. I went to her house in order to take my money. She made me to sit in a room and bolted the door of the room and then called the Police and got me arrested in this case." This defence is clearly an afterthought. Bashir is an absolutely independent witness with no animus against the appellant and no cause for leaning towards the complainant party. This defence was not at all put to him in cross-examination it was not put to Mst. Haliman Bibi also except to the extent that she owed money to the appellant, which she denied.

8. Two witnesses, Ismail and Muhammad Shafi D.Ws.2, and 3, respectively were produced regarding the version about stopping Bashir from visiting the house of Mst. Haliman Bibi but obviously they are liars. If the defence version is a lie their statements to support the same cannot contain any grain of truth in them.

9. It is therefore, clear from this analysis that there is no reason why Mst. Haliman Bibi, or for the matter of that, Muhammad Bashir should involve the appellant in a false case. The medical examination shows that Salim, aged 5 years had been subjected to carnal intercourse against the order of nature. There is no reason why the appellant should be substituted for the real culprit if he was some other person. The commission of the offence under section 377 by the appellant is fully established. However, it may be pointed out that the sentence for an offence under section 377 is either imprisonment for life or imprisonment of either description which will not be less than two years and more than ten years and the convict shall be liable to fine. Since the learned Additional Sessions Judge has not sentenced the appellant to life imprisonment, but to a fixed sentence the sentence for the offence under section 377 could not exceed 10 years.

10. The other question is whether the appellant in fact committed an offence under section

12. The offence under that section would be complete only if the case is of kidnapping or abduction. Kidnapping consists, under section 361, P.P.C. if removal of a minor from the legal guardianship without the consent of the guardian. Abduction under section 362 means taking away a person by force or fraud. Since the child was only 5 years of age, the relevant definition would be that of kidnapping.

11. It was urged by the defence counsel that in the present case the child was taken away with consent of the mother who, although not the legal guardian, but had a right to the custody of the child and as such the case did not fall within the definition of section 361.

12. The learned counsel for the State, however, referred to section 90 which defines consent, as consent not caused under fear of injury or by misconception of facts: He argued that since the real intention of the appellant was to take away the child for commission of an offence, the consent given by the mother was a consent given under misconception of facts as she was misled by the representation of the appellant that he was taking the child to play with him. He referred in this connection to I L R 36 Mad. 4S3, which was also a case of consent given by the guardian under misrepresentation of fact. See also Russel on Crimes, 11th Edition, pages 754 and 755.

13. We agree with the argument of the learned counsel for the State that the consent given by Mst. Haliman Bibi could not be deemed to be a consent under section 90, once it is held that the child was taken by the appellant to his house with the primary intention to commit the offence. The intention can be gathered from the fact that Mst. Haliman Bibi heard the shrieks of the child only a short while after. This argument of the learned counsel for the appellant is not, therefore, of any substance.

14. The question, however, is whether it is established that the appellant had removed the child from the legal guardianship of his father by taking him to his own house.

15. The learned counsel for the State relied upon 1973 S C M R 188 in support of this proposition. In that case it was held that a girl while she was engaged in playing remained in the lawful custody of her father which was terminated as soon as she was made to accompany the accused towards the deserted house for no other purpose than to satisfy his animal lust. The case is an authority for the proposition arising in that particular case. But what exactly is meant from the removal from guardianship. This was considered by their Lordships of the Supreme Court in more detail, in Muhammad Razzaq and Munir Ahmad v. The State P L D 1967 S C

363. In that case a boy who was a catamite was taken from one park to another where he was often seen, in the same town and was ultimately taken to the Bus Stand in the evening for taking him outside the town. It was held that a minor is deemed always to be under lawful guardianship, within the freedoms which are allowed to him, e.g. such as he can be shown to be accustomed to practice. In the movement from one park to another, one is unable to find the necessary ingredients for holding that the boy was not a free person. Thus, for instance, if he had been left by the others in a certain park it would not be possible to say that the persons responsible for taking him to that part were guilty of kidnapping him from lawful guardianship, since it would have been possible for the boy to return home the same evening. But when he was taken from the park to the bus-stand, that being a place from which movement was possible to a number of places outside and since eventually he was taken outside the town an action may be seen on which the result was likely to be and eventually was, that the boy would not be allowed to return home the same evening. At that stage it would be possible to say that the boy was taken out of the lawful guardianship of his father.

15. The reason why this authority and not the later authority of the Supreme Court provides the criterion for judging in the present case whether it was kidnapping from lawful guardianship or not, is that in the present case the child was taken, though on misrepresentation, from the house of the complainant to his own house, where obviously it was customary for the child to go and where appellant took the child with him to play. If it had not been so the mother would have taken an objection that the appellant had never before taken the child for the purpose of playing, there was no reason why he should make the offer, that day. In view of this it cannot be said that the intention of the appellant was to take away the child from the lawful guardianship of his father. There is nothing on the record that it was not his intention to send the child back to his own house in the neighbourhood.

16. We are therefore, of the view that a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not made out. We accept the appeal of the appellant to the extent that we set aside his conviction and sentence under section 12 of the Ordinance.

17. As regards the sentence under section 377, the learned counsel for the appellant relied upon section 7 of the Ordinance and submitted that at the time of the offence the appellant was less than 18 years and he was entitled to the benefit of that section. This argument has not impressed us since according to the evidence of the Doctor, he was potent and should therefore be treated as adult.

18. We would however, like to take into consideration the age of the boy for the purpose of passing the sentence. In our view, the ends of justice would be met if the sentence is reduced to 5 years' rigorous imprisonment and a fine of Rs.5,000 in default of payment of which he will undergo further R.I. for one year. While passing the sentence we have taken into consideration the provisions of section 382-B and the sentence is not likely to be reduced on that ground. The fine if recovered shall be paid to the legal guardian of the child for the benefit of the child (Salim). M.Y.H Sentence reduced