2007 PLP 452 (SCMR)

JUSTICE SARDAR MUHAMMAD RAZA KHAN (MEMBER).

Amir Muhammad through this jail petition seeks leave to appeal from the judgment dated 25-11-2003 of Federal Shariat Court, whereby he stood convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to imprisonment for life with fine of Rs.20,

000. He was also convicted under section 10(3) of the Ordinance and sentenced to ten years' rigorous imprisonment with a fine of Rs.20,

000. Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended.

2. On the night between 1st and 2nd of April, 1999 the complainant, Muhammad Akhtar along with his family members was asleep in his house. In the morning when he got up he found his minor daughter aged 13-1/2 years missing. He searched here and there and it was-informed by Sardar Muhammad and Wali Muhammad P.Ws. that on the fateful night at about 11-00 p.m. they saw Amir Muhammad appellant taking away Mst. Sumera in a car towards Nawan Kot. On hue and cry of the victim they tried to stop the car but the accused-sped away along with Mst. Sumera.

3. The occurrence seems to have taken place on the night between 1st and 2nd of April, 1999. On the very night at 11-00 p.m. Sardar Muhammad and Wali Muhammad had seen the accused forcibly taking away Mst. Sumera. The criminal intent is sufficiently apparent from the above said narration yet the father did not lodge a report till 6th of April. While in the witness-box Mst. Sumera gave a detailed story about the arrival of Amir Muhammad accused (taxi driver) to their house when all the family members were present in the house. She added that she prepared tea on the request of the accused and while she had gone out to fetch milk, the accused put some intoxicant whereby all family members became unconscious except the girl who retained all the details of occurrence in her memory. According to witnesses, Mst. Sumera was seen in the company of the accused at 11-00 p.m. in the night but according to her, she had gone to fetch milk when it was morning. Had it been a true story, the father would have lodged the report immediately the next morning and to that effect.

4. The girl was taken first to Mianwali then to Faisalabad and also to various other cities where the accused had been committing Zina with her. According to her she was recovered from Mianwali but in the second breath she stated to have been recovered from Chak No.47 which was only 3/4 Chaks away from their own Chak. All this journey to which the couple resorted, has been a long way to go. They must have lived at different places and must have come across hundred of people but Mst. Sumera did not raise hue and cry. This is a strong indication of the fact that the accused never abducted her. The whole cock and bull story seems to have been concocted in order only to bring the offence within the mischief of section 11 of Ordinance VII of 1979. From her medico-legal report it becomes abundantly clear that she was not at all innocent as the prosecution claimed. Her age on the medico-legal report seems to have been tampered with because while in the witness-box the lady doctor failed to make an absolute conclusion. It shows the attempt of prosecution to conceal the real age of the girt, which seems to have been sixteen or above. All these state of affairs clearly indicate that she was a consenting party to the act of sexual intercourse. We therefore, are fully convinced, in the light of evidence on record, that the offence committed in the instant case did not fall under section 10(3) of Ordinance VII of 1979 but it fell under section 10(2) thereof.

5. Furthermore, the accused has taken away a woman with intent that he may have illicit intercourse with her. He had concealed and detained her for the purposes of intercourse, which is sufficiently proved. The offence in that behalf falls under section 16 and not under section 11 of the Ordinance. She was kept by petitioner for more than thirty days during which he exploited his flesh.

6. As a result of foresaid discussion, the instant petition is converted into appeal and partially accepted with modification as under: (a) Offence under section 11 is modified to section 16 of Ordinance VII, 1979 and his imprisonment for life is converted into rigorous imprisonment for seven years. (b) The conviction under section 10(3) is converted into one under section 10(2) of Ordinance-VII, 1979 with rigorous imprisonment that shall extend to ten years along with fine of Rs.20,

000. The sentences shall run concurrently with benefit of section 382-B, Cr.P.C. M.H./A-90/SC Order accordingly.