2005 P Cr (PLP)

ZAFAR PASHA CHAUDHARY, J.

This appeal is directed against judgment, dated 20-11-2002 passed by Syed Akhlaq Ahmad, Additional Sessions Judge, Chakwal in case F.I.R. No.124, dated 11-8-2000 registered with Police Station Keller Kahar, wherein Mst. Hajiran Bi, Mst. Safdar Bi, Mushtaq Ahmad and Mst. Shahida Parveen along with Muhammad Jehangir, appellant have faced trial under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). The learned trial Judge after holding the trial acquitted Mst. Hajiran Bi, Mst. Safdar Bi, Mushtaq Ahmad and Mst. Shahida Parveen by holding that no incriminating evidence against them was brought on record by the prosecution.

2. Muhammad Jehangir, appellant was convicted under section 11 of the Ordinance and sentenced to imprisonment for life with a fine of Rs.25,000 in default of payment of fine to further undergo R.I. for six months. He has also been convicted under section 10(3) of the Ordinance and sentenced for an imprisonment of 20 years' R.I. as Tazir. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was allowed.

3. According to prosecution, Muhammad Aslam moved an application before Police Station Keller Kahar, District Chakwal, that his cousin Muhammad Ashraf was a heart patient. His daughter Mst. Nadia Ashraf aged about 13/14 years used to perform the household functions. Muhammad Jehangir, appellant lived in the vicinity. On 8-8-2000 at 10-30 p.m. (mid night) he enticed Mst. Nadia Ashraf and took her away along with him in order to get her married or commit illicit intercourse with her. The occurrence took place on 8-8-2000 whereas the matter was reported on 11-8-2000. It was alleged that apart from Muhammad Jehangir appellant, his mother Mst. Hajiran Bi and sister Mst. Safdar Bi also instigated him to commit the abduction. Mushtaq Ahmad and Mst. Shahida Parveen abetted appellant during course of abduction/kidnapping. As noted above, all the four co-accused were acquitted except the appellant who was convicted and sentenced as detailed above.

4. During investigation all the five accused were found to be involved and were sent up to face trial. Charge was framed under section 109, P.P.C. read with section 11 of the Ordinance. The conviction was however, recorded both under sections 11 and 10(3) of the Ordinance.

5. The prosecution examined nine witnesses. The most important is Mst. Nadia Ashraf, P.W.3 According to her at about 10-00 p.m. (mid night) Mst. Shahida Bi came to her house and asked her to accompany her outside to attend to the call of nature. When she came out, Muhammad Jehangir and Mushtaq Ahmad were present outside the house, both were armed with pistols. They threatened her that in case she made hue and cry she will not be spared. She was taken up to a mosque where Mst. Hajiran Bi and Mst. Safdar Bi were standing. They handed over a hand bag to Muhammad Jehangir and asked him to take her, i.e. Mst. Nadia Ashraf, along with him and not to come back. Muhammad Jehangir and Mushtaq Ahmad, thereafter took her onward. Mushtaq Ahmad, accused/appellant left them, thereafter Muhammad Jehangir brought her in a car to Lahore. Muhammad Jehangir kept her i.e. Mst. Nadia Ashraf, in a room of a hotel for one day and then took her to Multan. At Multan Muhammad Jehangir sold her golden nose ring and car-rings. During their stay at Lahore and Multan Muhammad Jehangir kept on committing Zina-bil-Jabr with her: From Multan she was taken to Haiderabad in the train. Thereafter from the railway station she was taken in a car and when they alighted from the car Muhammad Nazir, her relative met them. Muhammad Nazir was employed in army. Muhammad Jehangir described Mst. Nadia Ashraf as his legally-wedded wife. The army people let him go to produce the document in proof of his marriage with Mst. Nadia Ashraf, failing which she was handed over to women Police Station Haiderabad who lodged her in Dar-ul-Aman of Haiderabad. Mst. Nadia Ashraf's parents and uncle came to Dar-ul-Aman from Chakwal and she was handed over to them. During her stay with Muhammad Jehangir, appellant, her thumb-impressions were obtained by the appellant on various papers. After her arrival in Chakwal she was medically examined.

6. As regards abduction and commission of sexual intercourse, there does not remain any controversy as according to the defence plea taken up by the appellant in his statement under section 342, Cr.P.C. that Mst. Nadia Ashraf herself had taken him to Haiderabad to her maternal- uncle, an army employ. Mst. Nadia Ashraf being adult and major, contracted marriage out of her own free will with him. He denied having abducted Mst. Nadia Ashraf for the purposes of any illicit design or commission of Zina-bil-Jabr. He supported his plea with the averment that the army authorities conducted a detailed inquiry and after they were satisfied he was set free. He further supplemented his plea with the assertion that Muhammad Ashraf, father of Mst. Nadia Ashraf, was initially willing to marry her to him but suspected that he (the appellant), had developed an understanding with her clandestinely, became angry and changed his mind. Mst. Nadia Ashraf therefore, out of her own free will got married to him. According to the appellant, he entered into a valid marriage with Mst. Nadia Ashraf in accordance with Shariah and law of the land.

7. The learned trial Judge did not accept that the appellant contracted a valid marriage with Mst. Nadia Ashraf, he therefore, held him guilty both under sections 11 and 10(3) of the Ordinance and awarded sentence thereunder.

8. The learned counsel for the appellant in support of the appeal has very persistently argued that it is a case of two counter-versions. According to the prosecution, the victim was kidnapped and enticed away to accompany the appellant and subsequently, subjected her to his illicit lust. Against that, the defence plea raised by the appellant is to the effect that Mst. Nadia Ashraf had not been abducted against her will and she voluntarily accompanied the appellant and thereafter contracted marriage with him. According to him, the appellant as such has not committed any offence.

9. After hearing the learned counsel for the respective parties and going through the evidence, we find, that undoubtedly the instant case comprises of two counter-versions. According to law and the relevant principles for appreciation of evidence, it has to be determined that prosecution has discharged its onus beyond doubt.

10. Keeping this principle in view, the prosecution version that Mst. Nadia Ashraf had been abducted forcibly, is falsified rather nullified by the relevant attending circumstances. It does not appeal to reason that Mst. Nadia Ashraf would have been taken out to the fields at odd hours of night and she did not suspect any foul, play. No resistance or even hesitation was shown by her. Thereafter she met the appellant along with Mushtaq Ahmad who forcibly took her to accompany him but no resistance or any other effort was made to frustrate or defeat their design. She was taken from place to place in cars and railway train and also kept in the hotel etc. but during all that period in spite of opportunities she neither resisted nor raised any hue and cry in order to save herself from clutches of the appellant. The appellant admittedly was not carrying weapon with him all the time in front of public eyes. The victim herself stated that she was made to thumb-mark various papers and documents, even at that time she did not demonstrate her unwillingness or helplessness. So much so, she was taken away by the army personnel, even before them she did not even indicate that she had been forcibly abducted and being subjected to Zina-bil-Jabr. What to speak of any resistance she rather expressed her acquiescence and behaved in a way that Muhammad Jehangir, appellant was let off by the army people. Her conduct and behaviour throughout the course of incident show that she remained the willing partner. Apart from these circumstances, she has not come forward with the whole truth. According to her, the appellant was associated at different stages and in different manners by his four accomplices. Her version to the extent of involvement of the four co- accused of appellant has not been found to be true even by the learned trial Court. She, therefore, is a witness whose statement and evidence has to be accepted with great care and circumspection.

11. The next question deserve consideration, is the age of the victim. According to her, she was 13/14 years of age at the time of her abduction. The doctor has also described her age as 14 years but the medical evidence leave no doubt to infer that she has attained puberty. According to the learned counsel, as per definition under section 2-A of the Ordinance, she would be treated as adult.

12. The learned counsel for the State has not been able to controvert this part of the defence plea. May be she was adult or not, the fact however, remains that Mst. Nadia Ashraf was quite gown up girl and was not such a young or minor who would be unable td contribute to the commission of the offence. After appraising the prosecution evidence and also taking into consideration the relevant ambient circumstances, Mst. Nadia Ashraf appears not to have been abducted forcibly but she being a young girl was not mature enough to understand the consequences of her, act. The element of enticing her away by the appellant, therefore, cannot be held to be non-existent. Mst. Nadia Ashraf has definitely been enticed away by the appellant who is a grown up person and was aged about 40 years. As against that Mst. Nadia Ashraf was young girl in her early teens. The appellant was not only the neighbour of Mst. Nadia Ashraf but is stated to be her relation as well and as such had dominant influence. He therefore, enticed away Mst. Nadia Ashraf obviously with intent to have illicit intercourse with her. The offence committed by the appellant is more appropriately covered by section 16 rather that section 11 of the Ordinance. His conviction is accordingly altered to under section 16 instead of section 11 of the Ordinance.

13. According to the clinical examination of Mst. Nadia Ashraf, she had been subjected to sexual intercourse. This fact even otherwise impliedly admitted by the appellant by pleading that Mst. Nadia Ashraf is his wife and he got married to her. The appellant has raised a specific plea of valid marriage but he has not brought on record any document or other reliable evidence to establish the same. Mere verbal assertion in absence of necessary supporting document the plea cannot be accepted. The prosecution version that the appellant was subject to Zina-bil-Jabr is anyhow belied in view of the above circumstances. It transpires from the facts and the evidence on record that Mst. Nadia Ashraf was a consenting party; therefore, safe administration of justice demands that the conviction may be recorded under section 10(2) and not under section 10(3) of the Ordinance. Accordingly the appellant's conviction is altered from section 10(3) to section 10(2) of the Ordinance.

14. Coming to the quantum of sentence, by assessing and taking stock of entire facts and circumstances, we think that the sentence of five years' R.I. will commensurate with the gravity of the offence under section 16 of the Ordinance and sentence of 7 years' R.I. will be just and proper under section 10(2) of the Ordinance.

15. In nutshell the appellant is sentenced to suffer five years' R.I. under section 16 of the Ordinance and 7 years' R.I. under section 10(2) of the Ordinance with a fine of Rs.10,000 in default thereof to undergo further three months' S.I. The benefit of section 382-B, Cr.P.C. already allowed will remain in tact. 15-A. The appeal is dismissed subject to the above alteration in the conviction and reduction of the sentence. H.B.T./56/FSC Order accordingly.