P L D 1965 (W (PLP)

FEROZE NANA GHULAMALLY, J.‑

The appellant Sharif Shah son of Muhammad Hanif is aggrieved with his conviction under section 366, P. P. C. by the learned S. D. M., Cantonment, Mr. Ahmadullah, exercising powers under section 30, Cr. P. C., sentencing him to rigorous imprisonment for five years. The appellant was tried with one Abdul Ghani, who was acquitted. The additional charges levelled against both Sharif Shah and Abdul Ghani were under sections 366 and 376, P. P. C.

2. The prosecution case is that Abdul Ghani, who was a co‑accused with the appellant, worked as a salesman in what is known as Vorson Dairy, where the appellant Sharif Shah used to visit him, and Miss Anne Fyfe, the victim in the present case, was an occasional customer for the purchase of butter and choc bars. It is also the prosecution case that in the past, when Anne Fyfe went to make purchases from this dairy, the appellant had cracked jokes and made suggestions to her. This had been objected to by Anne's father, and the appellant had apologised for his misconduct. On the 14th of July 1960, at about 7 p.m. Anne again visited Vorson Dairy to purchase a choc bar. She felt sick on eating it. She asked to be taken home. Instead, at the insistence of the appellant and his companions she partook of some beer, but this aggravated her condition. Thereafter, a taxi was sent for, and Anne was taken by the appellant and his companions to the Taj Hotel. The party partook of alchohol there for a while. From Taj Hotel they drove to Sadar, where one of the companions, viz. Jimmy, dropped out and instead of taking her home, Sharif Shah and Abdul Ghani drove Anne to Hawkes Bay. There Sharif Shah engaged a room in the Hotel Splendid, for both, stating that they were husband and wife. The taxi remained parked outside. The next morning they left the hotel and Anne was taken to a garden belonging to the brother of the appellant in Manghopir. It is alleged that during the time Anne was with the appellant he had asked her to marry him but she refused to do so. Thereafter, the appellant learnt that police was searching for Anne. Ultimately, at Anne's request, she was brought to the house of her friend, Miss Vormica Moscrop in the P. E. C. H. Society to enable her to change her clothes. From there Anne was taken home by her mother.

3. At about 6‑10 p.m. on the 15th of July, 1960, Anne's father, Thomas Fyfe, lodged a complaint at the Cantonment Police Station suspecting that the appellant Sharif Shah, who used to sit at Vorson Dairy, had kidnapped Anne who had been missing since the previous day.

4. In his defence, the appellant denied every circumstance of the prosecution case put to him. No explanation has been offered by him for any one of these circumstances. When finally questioned why the case was instituted against him and the witnesses were deposing as they did, he replied that the case had been engineered by Anne's father on account of enmity, and as he had demanded Rs. 5,000.00 from the appellant. No defence witnesses were examined.

5. The trial Court framed five points for determination, and concluded that the prosecution bad been able to prove that Anne Fyfe was under 16 years of age; that she had been kidnapped by the appellant to Hawkes Bay and other places with the intention of seducing her to sexual intercourse. He held that no rape had been committed on Anne by the present appellant.

6. Mr. Hayat Junejo, for the appellant, has raised four points against the conviction of his client, and these are based on: (i) a defective charge against the appellant framed by the trial Court ; (ii) that the prosecution has been unable to prove lack of consent on the part of the guardians of the victim Anne Fyfe ; (iii) that the ingredients of section 366, P. P. C. have not been satisfied on the basis of the evidence examined ; (iv) that the prosecution had been unable to prove that Anne Fyfe was sixteen or below so as to establish a case under section 366, P. P. C. against the appellant. Lastly, a plea was also made on the point of sentence urging that, in any circumstances, it was excessive.

7. As to the merits of the case, there is no doubt that Anne Fyfe has been proved on the testimony of several witnesses who corroborated her, to have been taken away from her home on the evening of the 14th of July 1960. Anne's own evidence is Exh.

3. Riaz is the taxi driver who drove the appellant and Anne Fyfe from the Taj Hotel to Hotel Splendid at Hawkes Bay, and remained parked with his taxi outside the hotel till the next morning when the pair drove away to Manghopir. Thereafter there is the testimony of Miss Vormica Moscrop, P. W.

5. Muhammad Aslam (P. W. 6) is the Manager of the Hotel Splendid, who identified the appellant and Miss Anne Fyfe and said that they had driven upto his hotel in a car which had been parked outside the hotel both of them occupied a room in the hotel for the night, the appellant stating to him that Miss Anne was his wife. Early next morning the appellant and Anne Fyfe left the Hotel in the same car. He had made entries accordingly in the register of his hotel. In the circumstances it is clear that Anne Fyfe was taken away from her home that night or, in any case, that she accompanied the appellant. The point whether she did so willingly or otherwise will be discussed on the aspect of her age, for it is mainly based on a finding on that issue whether an offence against the appellant under section 366 or on the lesser count under section 363 has been proved.

8. In my view, there is no substance in the contention that the charge framed against the appellant was defective. The charge that was framed by the trial Court, reads as follows:‑‑- "I, Ahmadullah, Magistrate First Class exercising powers under section 30, Cr. P. C., Karachi, hereby charge you Sharif Shah son of Hanif Shah: That you, on or about the 14th day of July 1960 at 8 p.m. at Wellington Street, Sadar, Karachi, kidnapped or abducted Miss Anne Fyfe with intent to force her to illicit intercourse and thereby committed an offence punishable under section 366 of Indian (sic) Penal Code, and within my cognizance; And I hereby direct that you be tried by the said Court (or me) on the said charge." The object of a charge is to indicate to the accused the exact nature of the offence against him. Reading the above charge against the appellant there is no doubt that in substance it was an explicit indication of the case he had to meet. The appellant understood the nature of the charge levelled against him and the case he had to meet. In his section 342, Cr. P. C. statement every single circumstance had been put to him, but without offering any explanation for any of them, he merely denied them. His only defence appeared to be that he had been falsely implicated that Anne's father had demanded a sum of Rs. 5,000.00 from him which he had refused to pay. Besides, it is quite clear that no prejudice has been caused to the appellant in the course of the trial, or that he has been misguided in any way.

9. I would then pass on to the next point, i.e. whether, on the evidence examined, the prosecution were not able to prove lack of consent on the part of the guardians of Anne. The guardians are her father and mother. Advantage was sought to be taken of the admissions by Thomas Fyfe and his wife Mrs. Ruby Fyfe in their evidence that at the time of the incident, Thomas Fyfe, Anne's father lived in Mansfield Street, Sadar, whilst Mrs. Ruby Fyfe, his wife and their children lived in 112, P. E. C. H. Society. On the basis of the medical evidence given in respect of the state of the private parts of Anne Fyfe, Mr. Hayat Junejo has argued that this was a case in which the girl was used to sexual intercourse, and if her father and mother lived apart, it indicated that it was to facilitate her mother, living on the earnings of her daughter". This, to say the least, is a very far‑fetched contention to make. Both the father and the mother of Anne Fyfe (Exhs. 1 and 4) have explained that they were living in two different places as the condition of their house in the Mansfield St., Sadar was dangerous and the house was likely to fall down ; therefore, for purposes of safety, the family had shifted temporarily to an accommodation in the P. E. C. H. Society. The evidence of the parents of Anne Fyfe, conclusively proves that they were not a willing party to Anne's elopement with the appellant. Although there has been a delay of about 24 hours in the lodging of the first information, it is explained by the fact that as both father and mother were living far apart, and when their child did not return home, each parent believed that she was at home with the other, when they discovered that she had disappeared they must have made enquiries before lodging a report with the police. The report states that Thomas Fyfe did so on the basis of some information given by some urchins who had seen the appellant and Anne together in a car. The report further shows the suspicions of the parents that the appellant, in view of his past conduct, had kidnapped Anne. If the parents were a consenting party, as the defence urges, they certainly would not have lodged this report. I am in no doubt that the prosecution have proved that neither Anne's father nor her mother was a consenting or willing party to her elopement with the appellant.

10. The third point of Mr. Hayat was that the ingredients of section 366 have not been established on the prosecution evidence examined ; i.e. that there is no evidence to establish that Anne, even if she had been kidnapped, was forced to illicit intercourse. Section 366 of the Pakistan Penal Code reads as follows: "

366. 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 of either description for a term which may extend to ten years, and shall also be liable to fine ; and whoever, by means of criminal intimidation as defined in this 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." The ingredients necessary for proof are that such kidnapping or abducting must be: (a) 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 (b) (and this is relevant in this case) 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. In this connection, reference has been made to Shahebali v. Emperor (A I R 1933 Cal. 718), where their Lordships had observed that the expression "seduced to illicit intercourse" is not limited to inducing a girl to surrender her chastity for the first time; there must be proof of the girl's life being pure from sexual intercourse at the time of kidnapping, and this is necessary, and that the mere fact of her previous unlawful intercourse is immaterial as she may have resumed purity at the time. It was held that the expression "seduced to illicit intercourse" in section 366 seems to have been used deliberately to indicate a distinction between `seduction' in the popular, usual or ordinarys ense and that which section 366 was intended to cover. "Illicit intercourse" seems to be intended to be synonymous with "unlawful sexual intercourse", and it follows from the definitions given that "seduced to illicit inter course" means "induced to surrender or abandon a condition of purity from unlawful sexual intercourse". It was, therefore, held that an accused person cannot be convicted of an offence under this section unless it is proved that the girl was leading a pure life from unlawful sexual intercourse at the time when the kidnapping took place. In Baijnath v. Emperor (A I R 1932 All. 409) it was observed that: "The very phrase `seduced to illicit intercourse' implies two distinct stages in the acts of the accused, the seduction and the illicit intercourse. These must be two distinct acts, though they follow in immediate sequence. Sometimes the word `seduction' is used by itself to include comprehensively the `seducing' and the `intercourse', but where both words are used `seduced to' can only refer the preliminary act of persuasion. The term `seduction' can only properly be held applicable to the first act of illicit intercourse, unless there be proof of a return to chastity on the part of the girl meanwhile, or unless possibly there is an intention on the accused's part that the girl should be seduced by some different man."

11. The circumstances in the present case are that the trial Court disbelieved Anne on the point of being raped by the appellant. The appellant was, therefore, acquitted in respect of that charge. It was held and I feel, quite rightly that the entire conduct of Anne Fyfe was indicative of her consent to eloping with the appellant, and that, indeed, her evidence in regard to being forced to go with the appellant, and being threatened at the various stages and even before the actual acts of sexual intercourse took place during the night in the Hotel Splendid, have been rightly disbelieved. Besides, there is the very telling evidence of Major Hasan (P. W. 7), who examined Anne on the 16th of July, 1960 testified not only as to her age but also that Anne was used to sexual intercourse and that her vagina cavity was spacious. There were marks of three tears on her hymen, and those were certainly more than a month old. In the circumstances, it would appear that the contention of the defence must be upheld, i.e., that the prosecution have been unable to establish that Anne was forced to illicit intercourse by the appellant. This is so in view of the medical evidence and the presumptions that arise out of her past sexual conduct. As to the effect of this finding I shall advert in my discussion on the next issue, viz. that of the age of Anne at the time.

12. In arriving at the conclusion that Anne was below 16 years of age, the trial Court has referred to the statement of her father, Thomas Fyfe, her mother Ruby Fyfe supported by the baptism certificate of Anne which is Exh. 1/2 and is an extract from the Parochial Register of the Church of St. Annis, Mazagon, Bombay‑10, and is dated the 24th of October, 1944. A transfer certificate, which is an extract from a school register was not relied upon; nor was a certificate of the Birth Registry from the Greater Bombay Municipal Corporation, dated the 22nd of December, 1960. Both the parents of Anne have asserted in most definite terms that her date of birth at Bombay was the 3rd of September, 1944. Mr. Hayat Junejo has attacked the baptism certificate as being inadmissible in evidence. I do not agree with this contention. This certificate, which is dated the 24th of October, 1944 was, as Mrs. Ruby Fyfe has stated, recovered, from her possession by the police. She has stated that her husband and she were naturally present when the baptism ceremony took place, which was on the 16th of September, 1944. She has also stated that the certificate was prepared in her presence on the basis of the information given by her, that the date of birth of Anne in this certificate was written in her presence and that the certificate was also signed by the writer in her presence. She identified his signature. The trial Court has rejected Exh. 1/4, which is the certificate of the Birth Registry of Anne from the Public Health Department of the Greater Bombay Municipal Corporation. This is by itself an original document duly certified by the Health Officer of the Greater Bombay Municipal Corporation, but it has been objected to on the ground that the entries in this certificate must have been taken from the register referring to the date of the birth of Anne. However, in my view, the testimony of Anne's parents read with this baptism certificate, which is clearly admissible in evidence and was rightly exhibited in the, course of the trial, establishes beyond doubt that Anne was born on the 3rd of September, 1944. The medical evidence through Major A. Hasan as to the approximate birth of Anne is that according to the average of the Bengal standard of age and English standard of age, Anne would be 151 to 18 years of age, but medical examination based on radiological tests in the point of age cannot be exact. In the present case, however, there is, conclusive documentary evidence supporting the testimony of the parents that Anne was born on an exact date, that is, the 3rd of September, 19

4. For these reasons, the trial Court was justified in concluding as to the date of birth of Anne and, consequently, that on the day of the incident, she was less than sixteen years of age.

13. For the reasons I have given in the discussion on the point of the prosecution having failed to show that Anne was c forced to illicit intercourse I feel that a case under section 363, P. P. C. had been made out against the appellant. I, therefore, confirm the conviction of the appellant but under section 363, P. P. C. and alter the sentence of imprisonment to one of 12 months and a fine of Rs. 500 in default further rigorous imprisonment for 3 months. The appellant is on bail. His bail bond is cancelled, and he is remanded to custody to serve out the un expired portion of his sentence. Appellant to surrender to his bail. K.B.A. Appeal partly accepted.