1991 P Cr (PLP)

IBADAT YAR KHAN, J.

By his judgment dated 23-11-1989 Mr. Sajjad Hussain Shah, learned Additional Sessions Judge, Karachi East, convicted Sher Afzal son of Said Gul, Mukhtar Ahmad son of Muhammad Ishaque and Muhammad Lateef son of Muhammad Abbas under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). All the three have been sentenced to suffer imprisonment for life, fifteen stripes and fine of Rs.2,000 each or in default to further undergo R.I. for one year each. Sher Afzal and appellant Mukhtar Ahmad were further convicted and sentenced under section 10(3) of the Ordinance, to R.I. for five years and whipping numbering ten stripes each. In case of latter two accused the substantive sentences were ordered to run concurrently. Accused Sher Afzal has not filed any appeal against his conviction. Appellants Mukhtar Ahmad and Muhammad Lateef have filed their separate appeals, which have been numbered as Criminal Appeal No.100/K of 1989 and Criminal Appeal No.106/K of 1989 respectively.

2. In support of the prosecution case six witnesses have been examined. P.W.2 Mst. Sheereen, aged 13 years, is the victim girl. P.W.1 Abdul Hafiz is her father and P.W.3 is her mother. P.W.4 Abdul Hakeem is a Mashir of recovery of the girl from the house of Mukhtar Ahmad appellant in Criminal Appeal No.100/K of 1989. P.W.5 Dr. Qaiser Rasool is Medical Superintendent, Sindh Government Hospital. He has examined the girl to determine her age and as a result has declared her to be aged 13 years. P.W.6 Abdul Hafiz Qadri is S.H.O. and Investigating Officer.

3. On 5-10-1982 P.W.1 Abdul Hafiz lodged an F.I.R. in Police Station Jamshed Quarters stating therein that he is a petty shopkeeper running a Pan cigarettes shop at Teen Hati Chowk. That a person named Sher Afzal used to park his Suzuki in the street opposite to his house. That this man occasionally used to visit the house of the complainant. On 3-10-1982 at about 11-00 p.m. when the complainant returned to his house from his shop he was informed by his wife Mst. Shahnaz Bibi that their daughter Mst. Sheereen had gone to see T.V. in a house in the neighbourhood, at about 8-00 p.m. but had not returned. That the girl had been kidnapped by Sher Afzal and till the time of the filing of the report had not been traced. Sher Afzal had also disappeared and was not to be seen in his house. On this report the police of the area came into motion. After completing investigation the three accused were sent up for trial.

4. On 5-10-1982 the girl was recovered from the house of appellant Mukhtar Ahmad: She was medically examined for determination of her age. Her clothes and bed-sheet were also seized by the police at the time of recovery and were examined by the Chemical Examiner. The report is Exh.40.

5. All the three accused were charge-sheeted by the learned trial Judge under section 11 of the Ordinance. Sher Afzal and Mukhtar Ahmad, appellant, were additionally charged under section 10(3) of the Ordinance also.

6. The prosecution examined the witnesses mentioned in the preceding paragraph above.

7. P.W.1 Abdul Hafiz reproduced the contents of the F.I.R. in his statement and added that on the 3rd day of kidnapping his daughter was recovered by the police from the house of appellant Mukhtar Ahmad, situated in Bhawani Chali. Accused Sher Afzal was also arrested from the house of Mukhtar Ahmad. He has also stated that the police has secured blood-stained clothes of his daughter and also a bed sheet from there, which were sent to the Chemical Examiner.

8. P.W.2 Mst. Sheereen is the victim. In her statement on oath she has stated that on 3-10-1982, which happened to be a Sunday, at about 8-00 p.m. hoe had gone to the house of Manzoor just opposite to her house to see T.V. At about 8-30 p.m. while she was returning to her house she met the three accused, namely Sher Afzal, Mukhtar Ahmad and Muhammad Lateef standing there. There was a Suzuki parked nearby. Accused Mukhtar Ahmad and Lateef caught hold of her and forcibly took her into the Suzuki and she was made to sit on the front seat alongwith the seat of the driver. Accused Mukhtar and Lateef then occupied rear seats in the Suzuki and Sher Afzal, who was on the driving wheel, drove away the Suzuki. They took her to the house of Mukhtar Ahmad, situated in Bhawani Chali. On reaching the house she was put up in an open room where wife of accused Mukhtar Ahmad prepared a bed for her and Sher Afzal. Accused Sher Afzal then committed Zina-bil-jabr with her. On account of sexual violence committed upon her the bleeding occurred and she felt giddy. The next day, it is so alleged, accused Mukhtar Ahmad committed rape with her. Then on the third day Sher Afzal again committed Zina-bil-jabr with her. On the third day the police raided the house and arrested Sher Afzal. The police also took into possession the clothes and the bed-sheet. These were sent for chemical examination. She was also produced before a Magistrate where her statement was recorded by the Magistrate.

9. P.W.3 Mst. Shahnaz Bibi is mother of the victim girl and wife of Abdul Hafiz. She has stated that on 3-10-1982 at about 8-00 p.m. her daughter had gone to a quarter of their neighbour to see T.V. programme. As she did not return she made inquiries and was told by tae neighbour that she had come but had gone back. She further proceeds on to state that when her husband returned she narrated the whole incident to him, who after search and failure to recover the daughter lodged an F.I.R. in the Police Station. A day or so later accused Lateef came to her husband and informed him about the whereabouts of the daughter. On the information of Lateef a raiding party was arranged and the police raided the house of Mukhtar Ahmad and Mst. Sheereen was recovered.

10. P.W.4 Abdul Hakeem is fruit-seller and resides at Teen Hati. The complainant party was known to him. He knew that daughter of Abdul Hafiz had been kidnapped. He had accompanied the police and the father of the girl to Bhawani Chali and from the house of appellant Mukhtar Ahmad Mst. Sheereen was recovered in his presence. The police had prepared a Mashirnama (Exh.16) and on this Mashirnama he had put down his thumb mark. He had also thumb marked Mashirnama (Exh.17) under which wearing clothes and Chaddar recovered from the house of Mukhtar Ahmad were secured. In Court he has identified the clothes and also thumb marks on the Mashirnamas.

11. P.W.5 Dr. Qaiser Rasool has appeared in Court and supported his opinion that on the basis of the clinical examination as well as the X-ray of the girl the age of the girl was 13 years.

12. The last witness is P.W.6 Abdul Hafiz Qadri, who has investigated the case on the basis of F.I.R. (Exh.9) and after recording the statements of the witnesses challaned the case. He has produced the Chemical Examiner's report (Exh.40) and Mashirnama of recovery of the girl (Exh.16) and Mashirnama of arrest of Abdul Lateef (Exh.35). It is pertinent to note that he arrested accused Sher Afzal and Mukhtar Ahmad on 7-10-1982 and accused Lateef on 9-10-1982.

13. After the prosecution evidence was over, the learned trial Court examined the three accused under section 342, Cr.P.C. All of them denied the charge and pleaded not guilty. Accused Sher Afzal made the following statement:- "I am innocent and falsely implicated in this case by the complainant as I had dispute with complainant over payment of money as complainant had taken from me a loan of Rs.10,000 out of which Rs.3,000 were returned to me and remaining amount of Rs.7,000 is still due from him. I demanded my remaining loan amount, but he did not pay the same and falsely got me involved in this concocted case. I pray for justice and I have not committed any offence." As he has not filed any appeal we need not go into the depth of the plea taken by him in answer to question No.4. Suffice it to say that when questioned whether he would examine himself in his defence on oath or produce any evidence in his defence his reply was "no sir". Neither appellant Mukhtar Ahmad nor appellant Lateef have produced any defence nor examined themselves on oath under section 340(2), Cr.P.C. They have, however, denied any involvement in the crime and have pleaded not guilty. Both of them have stated that they have been falsely implicated due to enmity with the police.

14. We have heard the arguments of the learned counsel for the parties and also closely examined the evidence before us.

15. Taking up first the case of Muhammad Lateef, appellant, we have given our anxious thought and come to the conclusion that no significant role is assigned to this appellant. His name has not been mentioned in the F.I.R. Surely he had not stayed in the house of appellant Mukhtar Ahmad. On the contrary it is he who had revealed the information of presence of the victim girl in the house of appellant Mukhtar Ahmad and facilitated the recovery of the girl from the house's of Mukhtar Ahmad. There is no allegation of any kind against him by anyone, except a suggestion by the victim girl to the effect that at the time of her escape from the house of the neighbour, appellant Lateef also helped in putting the girl in the Suzuki. It is also not clear why Lateef having no motive either of sexual involvement or otherwise had participated in the affair. It is not on the record that he was previously known to the girl and the possibility of the girl making a mistake in naming this appellant cannot be ruled out. It is also debatable whether this grown up girl willingly accompanied the principal accused or she was physically overpowered by two healthy young men and put in the Suzuki against her will.

16. We would, therefore, giving him benefit of doubt allow his appeal, set aside his conviction and sentences and acquit him of the charge. He shall be released forthwith if not wanted in any other case.

17. So far as appellant Mukhtar Ahmad is concerned, the prosecution has succeeded in making out a case under section 11 of the Ordinance against him but not under section 10(3) of the Ordinance. If the statement of the victim girl coupled with the recovery of the girl from the house of this appellant are read together his role in the crime is fully established. So far as the allegation of Zina -bil-jabr is concerned, it has no corroboration either from any witness or any circumstance. It is pertinent to note that in the report of Chemical Examiner (Exh.40) 14 items have been subjected to test. Among them are blue coloured shirt and Shalwar of appellant Mukhtar Ahmad listed as items Nos.13 and

14. No marks of blood or semen are detected on these wearing apparels. In sharp contract to this, the shirt and Shalwar of accused Sher Afzal were found to be stained with human blood. The allegation of Zina against him appears to be a fiction not a reality. Moreover, it is to be noted that wife of this accused was residing in the house and it would rather be a very unusual conduct on her part to allow appellant Mukhtar Ahmad to steep with another woman. The proverbial jealousy would not allow her to permit her husband to sleep with another woman. We would, therefore, give benefit of doubt to appellant Mukhtar Ahmad on the charge of Zina-bil-jabr under section 10(3) of the Ordinance and set aside his conviction and sentences on this count. His role in kidnapping of the girl from her house and concealing her in his house thus facilitating the commission of Zina with her by co-accused Sher Afzal is fully established. We would affirm his conviction on this count.

18. Now the question of life imprisonment awarded to him under section 11 of the Ordinance remains to be considered. To us the sentence appears to be rather harsh and disproportionate to the role assigned to him. Initially we were hesitant to reduce the term of imprisonment in view of the language of section 11 of the Ordinance, which is as follows:- "Kidnapping, abducting or inducing women to compel for marriage etc. 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; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." But the rule laid down in the case of Hasham Khan v. The State (Criminal Appeal No.46(S) of 1988), decided by the Shariat Appellate Bench of the Supreme Court makes it possible for us to do so. It would be profitable to quote hereunder the relevant part of the judgment of the Shariat Appellate Bench:-- "As regards punishment, the appellant stands sentenced under section 11 of the Ordinance to life imprisonment, with whipping (30 stripes) and to a fine of Rs.5,000 and in case of default in its payment to further R.I. for 2 years. It is submitted that the sentence of life imprisonment has been imposed on the appellant because under section 11 of the Ordinance any person found guilty thereunder "shall be punished with imprisonment for life", although any person found guilty even for the much more heinous offence of Zina-bil-jabr under section 10(3) of the Ordinance is liable to punishment to a term extending to lifer imprisonment and in fact the appellant herein, despite being found guilty under section 10(3), was awarded imprisonment of 10 years only.

9. The submission of the learned counsel for the appellant is that the language employed by the draftsman under section 11 is inartistic and does not express the true intention of the law-maker. According to him, the real intention of the law-maker was to make a person guilty under section 11 to be punishable for an imprisonment extending to life as is the case in section 10(3) of the Ordinance and the word "extending" has been inadvertently omitted in the provision. To us also this appears to be the case and we also feel that the real intention of the law-maker is not reflected in the actual text of the provision. But the question is whether we can supply this omission?

10. The Supreme Court in exercise of its ordinary jurisdiction has had occasion to deal with this question on more than occasion and has ruled that even though the Court cannot normally give any meaning to a provision other than that which the words used therein by the draftsman carry (however, drastic or inconvenient the result may be) but the Court nevertheless in order to avoid injustice can give effect to the true and patent intention of the law-maker by supplying an omission (see Muhammad Amir Khan v. Controller of Estate Duty P L D 1961 SC 119 and Muhammad Ismail v. The State P L D 1969 SC

241. And in our opinion, the jurisdiction of a Shariat Court in the matter of Tazir punishment is even more extensive.

11. Accordingly, in order to avoid injustice and to give effect to the true intention of the law-maker we would supply the inadvertent omission in section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with a view to bring it in conformity with the true intention of the law-maker." The Court then substituted the words "which may extend to life" for the words "for life" in the body of section 11 of the Ordinance as quoted above.

19. Respectfully following the above dictum we would reduce the sentence from life imprisonment to a term of five years. The punishment of fifteen stripes and fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for one year is maintained. With this modification in the sentence the appeal of appellant Mukhtar Ahmad is dismissed. ABDUL RAZZAK A. THAHIM, J.

Sher Afzal Khan has also been convicted under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He has not filed appeal. He has been sentenced under, section 10(3) of the Ordinance to suffer R.I. for five years and under section 11 of the Ordinance he has been awarded imprisonment of life, fifteen stripes and fine of Rs.2,000, in default to further suffer R.I. for one year. We have reduced- the sentence of co-accused, Mukhtar Ahmad from life imprisonment to five years but maintained the punishment of stripes and fine. In case of Zamir Hussain and others v. The State, reported in P L D 1949 Lah. 179, it has been held that conviction of accused who had not filed appeal can be set aside by High Court in Revision. In case of Khair Muhammad v. The State, reported in 1969, P Cr. L J 446, two accused were challaned and convicted. High Court on appeal by one of the accused reduced the sentence. The sentence of co-accused not filing appeal was also reduced in exercise of revisional jurisdiction. In case of Sadiq v. The State, reported in PLD 1967 SC 356, the Supreme Court hearing the appeal of one accused found doubt over the conviction of another accused as well. The directions were given by the Supreme Court that co-accused be instructed to submit similar petition from jail for special leave to appeal. In view of the above legal position, we reduce the sentence of Sher Afzal recorded under section 11 of the Ordinance from imprisonment of life to five years' R.I. but we maintain the punishment of stripes and fine as we have done in Mukhtar Ahmad's case. Consequently, Sher Afzal is to undergo R.I. for five years with ten stripes under section 10(3) of the Ordinance and five years' R.I. with fifteen stripes and fine of Rs. two thousand, in default to suffer R.I. for one year more under section 11 of the Ordinance. The trial Court while convicting the accused in addition to the imprisonment awarded ten stripes. It has been observed that accused in this case upon conviction under section 10(3) of the Zina Ordinance has been awarded ten stripes when according to section 10(3) of the Ordinance, the sentence of thirty stripes is mandatory. Sher Afzal Khan did not file appeal and we on suo motu examined his case and reduced the sentence. The notice for enhancement of sentence of stripes was not given, therefore, at this stage we do not feel proper to award thirty stripes without hearing the convicts but observe that in future trial Court should be vigilant in awarding proper sentence according to law. MA.K./M/618/FSC Order accordingly.