1998 PLP 1126 (SCMR)

MUHAMMAD TAQI USMANI, J.

The appellant is held guilty by the two Courts below of kidnapping Mst. Nazrana Kausar and committing rape on her. For kidnapping he was sentenced under section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 (Hereinafter referred to in this judgment as the Ordinance) and was sentenced to life imprisonment, thirty stripes and a fine of Rs.10,000 (Rupees ten thousand) or one year R.I. in default. For committing rape he was convicted under section 10(3) of the Ordinance and was sentenced to 25 years' R.I. and thirty stripes. The Federal Shariat Court vide its judgment dated 9-12-1991 upheld his conviction and sentence. Leave was granted to him by this Court vide its order dated 16-8-1992 to consider whether the conviction of the appellant can be converted from sections 11 to 16 and from 10(3) to 10(2) of the Ordinance for holding the victim Nazrana Kausar the consenting party to the act. Since leave was granted on this limited question only we need not go into the details of the case. We have only two issues before us to determine: firstly, whether or not Mst. Nazrana Kausar eloped with the appellant and let him commit sexual intercourse with her with free will and secondly, whether she was competent to give consent keeping in view her age which was around 15 (fifteen) years at the time of occurrence, So far as the first question is concerned there is enough material on the record to show that she was a consenting party to elope with the appellant. When examined as P.W.3 she stated as follows:-- "On 3-3-1990, accused came outside of my school and told me that I should see him on the following day i.e., 4-3-1990 outside the Gulyana Village on 4-3-1990, the accused came at 10-00 a.m. outside the Gulyana Village near Banni Pond where I had come there from my school on the pretext of sickness." This admission of the girl goes a long way to prove that she went with him with her free will. It is also on the record that she remained with the appellant from 4-3-1990 to 13-3-1990 during which period the appellant took her at several places but she did not try to escape from his clutches. In these circumstances the possibility cannot be ruled out that the appellant did not force her to accompany him. The pertinent question, therefore, is whether her consent could be treated as a legal consent to exonerate the appellant from the liability of section 11 or section 10(3) of the Ordinance. So far as section 11 is concerned it reads as follows:-- "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes and shall also be liable to fine." It covers not only the abduction for which the use of force is a necessary ingredient but it also covers kidnapping. Kidnapping is defined in section 361 of P.P.C. as follows:-- "Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." By virtue of section 2(e) of the Ordinance which makes the definitions of P.P.C. applicable to the Ordinance, this definition of kidnapping will be applied to section 11 of the Ordinance. This definition of kidnapping does not take into account whether the girl is pubert or not; rather it provides that whoever takes or entices any minor female under the age of sixteen years shall be guilty of kidnapping from lawful guardianship. Therefore, the question of puberty of Mst. Nazrana Kausar becomes irrelevant in so far as the conviction of the appellant under section 11 is concerned. According to the lady Doctor Rahat Batool P.W.10, who examined her, she was about 14-1/2 years of age. Therefore, being under sixteen years of age her taking away will certainly fall under the definition of kidnapping as contemplated in section 11 of the Ordinance. In the light of the above discussion, conviction of the appellant under section 11 cannot be converted to section 16 of the Ordinance, however, the admission of the girl as quoted hereinbefore can be taken as a mitigating circumstance for giving him a lesser punishment under that section. It has already been held by this Court in the case of Hashim Khan v. The State, PLD 1991 SC 567 that even in section 11, the Court has the discretion to give a lesser punishment than the life imprisonment keeping in view the circumstances of the case. It is also held in the case of Yousuf Masih v. The State 1994 SCMR 2102 2108 that the consent of the girl even if she is less than sixteen years can be C taken into consideration for awarding a lesser punishment under section 11 of the Ordinance. The position in the case of 'Zina-bil-Jabr' is a little different. We did not find anything on the record to show that Mst. Nazrana Kausar had let the accused commit sexual intercourse with her wilfully. Her statement in this regard is as follows:-- "It was a village. He detained me there for 5/6 days. He had been committing Zina-bil-Jabr with me there. I used to raise alarm. The people of the village came to know this state of affair when the accused due to fear of the villagers brought me out from the village during night time." Here, the girl has specifically mentioned that the sexual intercourse committed upon her was against her will for which she used to raise alarm which made the villagers know about this wrongful act. The mere fact that she had accompanied the accused with her free will after making an excuse of sickness in her school does not itself prove that she was also a consenting party to the illegal sexual intercourse. Therefore, even if the question of her age or puberty is kept aside for a moment, she cannot be held nor suspected to be a consenting party to Zina. Hence, the conviction of the appellant under section -10(3) of the Ordinance needs no alteration. For the reasons given above, we maintain the conviction of the appellant under section 11 of the Ordinance, however, reduce his sentence thereunder from life imprisonment to ten years' R.I. However, his conviction and sentence under section 10(3) of the Ordinance is maintained. Both sentences of imprisonment shall run concurrently and the benefit under section 382(b), Cr.P.C. shall be given to him. With this modification in sentence under section 11 only, this appeal is partly allowed. N.H.Q./M-121/S Order accordingly.