1989 PLP 438 (SCMR)

Date of hearing: 6th August, 1988. NASIM HASAN SHAH, J.‑‑This judgment will govern Criminal Appeal No.7(S) of 1987 and Jail Petition No.22‑R(S) of 1987, as both are directed against the judgment and order of the Federal Shariat Court dated 19‑2‑1987. The relevant facts are that on 1‑10‑1983, the mother of the complainant had gone, to Karbala Gamey Shah and her daughter, Mst. Razia Begum (complainant), after sometime, was proceeding to Karbala Gamey Shah to bring her back, when a young man intercepted her near the wagon stand and started to compel her to accompany him. As she refused to comply with his demands he called her Gushti and gave 2/3 slaps on her face and asked her to sit in the rickshaw. The complainant raised hue and cry whereupon some passersby came to the spot.. This young man introduced himself as a Sipahi giving out his name as Sain and told them that the complainant was a vagabond woman and that he was taking her to the Police Station. He thereafter made her sit down in the rickshaw whose driver was Saeed‑ ur‑Rehman (acquitted accused). However, the said Sipahi (Sain) instead of taking her to the police station took her to a house where he committed Zina forcibly with her. Then he brought her to Rajgarh. On the way they met one Muhammad Naeem (petitioner in Jail Petition No.22 -R(S)/ 1987) who was also made to sit in the rickshaw. They then brought the complainant to the McLeod Road and took her to upper room of the building where one Wasim Gul was present. All the three, namely, Sain (appellant herein), Wasim Gul and Muhammad Naeem committed Zina with Mst. Razia Begum. Driver Saeed‑ur‑Rehman remained standing outside. Thereafter the said Sain asked the rickshaw driver to drop the complainant at her residence but he dropped her at Karbala Gamey Shah. The complainant thereafter informed her parents about the incident. Whereafter, with the consent of the father, the complainant lodged the F.I.R. on 4‑10‑1983. Wasim Gul accused seems to have absconded and has not yet been arrested. The. remaining accused, namely, Noor Ahmad, Muhammad Naeem and Saeed‑ur‑Rehman (rickshaw driver) were tried by the Additional Sessions Judge, Lahore for the offences under Section 10/11 of the Zina (Enforcement of Pudood) Ordinance VII of 1979. The learned trial Court acquitted Saeed‑ur‑Rchman rickshaw driver but Noor Ahmad alias Sain (Constable) and Muhammad Naeem were convicted by him. Noor Ahmad alias Sain was convicted under section 11 of the Ordinance and senteuced to 15 years R.1. with whipping (15 stripes) and a fine of Rs.5,000 or in default further R.I. for one year. He was also convicted under scetion l0(3)of the Ordinaace and sentenced to 15 years` R.1. and whipping (30 stripe). Muhammad Naeem was convicted under Section 100) of the Ordinance and sentenced to 10 years' R.I. and whipping 30 stripes). On appeal, the Federal Shariat Court vide judgment dated 19‑2‑1987 upheld the finding of the learned trial Court that Naor Ahmad alias Sain was guilty of abduction under section 11 of the Ordinance and of committing Zina‑bil Jabr under section 10(3) of the Ordinance and it enhanced the sentence of Noor Ahmad alias Sain under Section 11 from 15 years' R.I, to life imprisonment (as life imprisonment is the mandatory sentence for abduction under Section 11). The conviction and sentence of Muhammad Naeem (petitioner from jail) was, however, kept intact and maintained. Noor Ahmad alias Sain has filed a petition (Criminal Appeal No.7(S) of 1987) while Muhammad Naeem has challenged the said order of the Federal Shariat Court by a petition through jail (Jail Petition No.22‑R/(S) of 1987). Both these matters are being disposed of by this order. We have heard Mr. Aitzaz Ahsan, learned counsel for Noor Ahmad alias Sain, appellant, who has also taken us through the record. Mr.S.D. Oureshi on behalf of the State has also been heard, in reply. We are satisfied that both Noor Ahmad alias Sain (appellant herein) and Muhammad Naeem did commit Zina‑bil‑Jabr upon Mst. Razia Begum and that their conviction under section 10(3) of the Ordinance as also the sentence imposed on them for the said offence, namely, 15 years' R.I. and 10 years' R.I. respectively is fully justified. However, the question arises whether in view of the evidence on the record Noor Ahmad alias Sain can be convicted under section 11 of the Ordinance or if he is guilty of the offence under Section 16 only? Section 11 comes into play where a person kidnaps or abducts any woman with intent that she may be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, while Section 16 is attracted where a person "takes" or "entices" any woman with intent that she may have illicit intercourse with any person. In this case, the prosecution case itself is that when Mst. Razia Begum raised hue and cry at the Wagon Stand Noor Ahmad alias Sain who was compelling her to go with him in the rickshaw told the passersby who came to her rescue that he was a police constable and that as she was a Gushti he was taking her to the Police Station. It is also a fact that Noor Ahmad was a police constable. Accordingly, everybody was satisfied and persuaded to believe that he was taking Mst. Razia to the Police Station for interrogation. In these circumstances, Mst. Razia Begum appears to have been enticed or taken away (within the meaning of the said terms under Section 16 of the Ordinance) rather than "kidnapped" or "abducted" (within the meaning of these terms in Section 11). Consequently, we are of the opinion that the appellant Noor Ahmad alias Sain is guilty of the offence under Section 16 rather than the offence under Section

11. We. would, accordingly, set aside the conviction of Noor Ahmad alias Sain under Section 11 of the Ordinance and finding that he is guilty under Section 16 thereof convict him accordingly and reduce his sentence from life imprisonment to 15 years R.I. The remaining sentence of fine etc. will be maintained. The substantive sentences of imprisonment imposed under Section 10(3) and that under Section 16 are ordered to run concurrently. The appeal of Noor Ahmad alias Sain succeeds to this extent only. The result is that the appeal of Noor Ahmad alias Sain is partly allowed to the extent indicated above) while the Jail Petition of Muhammad Naeem is dismissed. M.I./N‑101/S Order accordingly.