Javed Iqbal, J.--This appeal, with leave of the Court, is directed against the judgment dated 1.2.2001 whereby the appeal preferred on behalf of appellant has been dismissed by learned Single Judge in chambers of the Federal Shariat Court of Pakistan, Bench at Lahore, and conviction and sentence awarded by means of judgment dated 30.9.2000 of learned Additional Sessions Judge-II, Bahawalnagar, under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) has been set aside while conviction under Section 10(3) of the said Ordinance has been maintained but sentence of seven years R.I. has been reduced to R.I. for six years.
2. The facts of the case have been duly noted in the judgment impugned and therefore, need not to be reproduced in extenso.
3. Leave was granted by this Court vide order dated 16.8.2001 which is reproduced herein below for ready reference: The two Courts below did not consider the effect of Ex.D.A. i,e, the case of dissolution of marriage by Samina Bibi against the petitioner which is an admission of Samina Bibi of the existence of marriage between her and the petitioner. Since the petitioner claims that the original name of the victim is Samina Bibi, the thumb-impression of the victim should have been verified by an expert. In the absence of such a verification the petitioner was entitled to the benefit of doubt. It is necessary to examine this aspect of the case. Leave is therefore granted."
4. Heard Mr. Arshad Ali Chaudhry, learned ASC on behalf of appellant who mainly contended that the provisions as contained in Section 16 of the said Ordinance could not be made applicable in the case and therefore, the conviction and sentence awarded is liable to be set aside on this score alone. The said contention seems to have been made in oblivion of the judgment impugned wherein it has been mentioned categorically that the conviction and sentence awarded under Section 16 of the said Ordinance has been set aside. We invited the attention of learned ASC on behalf of appellant to the relevant para of the judgment impugned, whereafter he conceded frankly that the said contention was agitated on account of inadvertent omission. It is also contended that in fact Mst. Surraiya (abductee) is Mst. Samina Bibi who had married with appellant, which aspect of the matter has not been taken into consideration by the Courts below.
5. We have carefully examined the contention as mentioned hereinabove in the light of relevant provisions of the said Ordinance and record of the case. We have scanned the entire evidence with the eminent assistance of learned ASC and perused the judgment of learned trial Court as well as the judgment impugned. After having gone through the entire evidence we are of the considered view that the prosecution has established the accusation by producing worthy of credence and concrete evidence. At this juncture it is worth mentioning that conviction and sentence awarded under Section 10(3) of the said Ordinance was never challenged before the learned Federal Shariat Court but on the contrary it was argued that in view of the marriage of appellant with Mst. Surraiya Bibi, no case is made out. A careful scrutiny of the statement of Muhammad Ahmad (P.W.
1/complainant) would reveal that he has fully supported the contents as enumerated in the FIR (Ex.PA) and narrated the details of the incident. He has pointed out in a categoric manner that Mst.
Surraiya (abductee) was married with Muhammad Saeed and also brought on record the Nikahnama (Ex.PB) to that effect. He also clarified that Mst. Surraiya (abductee) was never known as Mst. Samina Bibi. Muhammad Ahmad (P.W. 1/complainant) was subjected to lengthy cross- examination but nothing advantageous could be elicited. He has no rancour or animosity against the appellant, hence the question of his false involvement does not arise. Khan Muhammad (P.W.
2) has supported the version of Muhammad Ahmad (P.W. 1) on all material particulars. He expressed his unawareness as to whether any suit for dissolution of marriage was 'filed by Mst.
Surraiya (abductee). No enmity whatsoever has been alleged against him. He stood firm to the test of cross-examination and nothing beneficial could be extracted. Mst. Surraiya (P.W.5/abductee) has highlighted the details of incident and stated in an unequivocal and an unambiguous manner that she was married with one Muhammad Saeed. She was also subjected to lengthy cross- examination but nothing advantageous rendering any assistance to the case of appellant was extracted. She has denied in a categoric manner that in fact she was Mst. Samina Bibi and in support of denial she produced her identity card Bearing No, 351-75-448279. The eye account is fully supported by medical evidence. In this regard the statement of Dr. Perveen Amin Chohan (P.W.
3) has rightly been considered and relied upon by the Courts below, who opined as under: "Ex.P.C. is the correct carbon copy of my medico legal report which is in my hand and bears my signatures, where Ex.PC/1 is the application seeking permission for medical examination of Mst.
Surriya.
I produce report of the Chemical Examiner Ex.P.D. (Bearing No, 2233/S dated 7.12.1993) according to which the said swa bs were found stained with semen.
From the above findings and according to the Chemical Examiner's report in my opinion the examinee was subjected to sexual intercourse."
6. A bare perusal of the opinion tendered by Dr. Perveen Amin Chohan (P.W. 1) would reveal that Mst. Surraiya (abductee) was subjected to sexual intercourse.
7. We have also adverted to the prime contention of Mr. Arshad Ali Chaudhry, learned ASC on behalf of appellant that Mst. Surraiya (abductee) had come out from her house at her own which is demonstrative of her willingness and no evidence is available substantiating the factum of enticement. A careful evaluation of the prosecution evidence would reveal that Mst. Surraiya (abductee) had not come out from house at her own but rather she was brought from her house by one (late) Mst. Maqsoodan Bibi. The above contention also seems to be oblivion of the provisions as envisaged under Section 16 of the said Ordinance which provides, inter-alia, that "whoever takes or entices away any woman with intent that she may have illicit intercourse with any person or conceals or detains with that intent shall be punished under the section". It is worth mentioning that the word `taking' as used in the said section is not equated to that of word 'enticing'. The element of force cannot be inferred by incorporating the word 'taking' which does not mean 'taking by force'. It is to be kept in view that the provisions of Section 16 of the said Ordinance is analogical deduction of Section 498 PPC which has been interpreted on various occasions. The judicial consensus seems to be that "all that is necessary is that if any person `takes away' any woman with the intention that she may have illicit intercourse with him, then the offence is completed. Taking away implies that there must be some influence operating on the woman, or co-operating with her inclination at the time the final step was taken which caused a severance of the woman from her husband, for the purpose of causing such step to be taken." (AIR 1950 Mad. 13, AIR 1953 Mad. 333, AIR 1947 Mad. 368). The word 'take' as used in Section 16 of the said Ordinance would mean to cause to go, to escort or to get into possession and accordingly the 'taking' does not mean physical taking from under the roof of the guardian, it also includes constructive taking such as meeting at the appointed place outside and this would constitute constructive taking from the constructive possession of the guardian. In this regard we are fortified by the dictum laid down in case titled Ansar Hussain v. The State (PLD 1963 (W.P.) Karachi 130. No doubt that Mst. Surraiya (abductee) was taken by (late) Mst Maqsoodan Bibi and handed over to the appellant who took her to various places and ultimately apprehended by police and recovery of Mst. Surraiya (abductee) was effected.
8. The plea of appellant that Mst. Surraiya (abductee) was in fact Mst. Samina Bibi, who married him could not be substantiated by any cogent and concrete evidence. As mentioned herein above Mst. Surraiya (abductee) has denied in a categoric manner that she was ever known as Mst.
Samina Bibi and in order to substantiate her version, the identity card was also brought on record.
In our considered view, the introduction of Mst. Samina Bibi has been made to take undue advantage by confusing the position. This plea being absurd and baseless hardly deserves any consideration. It may not be out of place to mention here that the details furnished in 'B-form' are also indicative of the fact that Muhammad Ahmad (P.W. 1/complainant) had no daughter with the name of Mst. Samina Bibi. The details of 'B-form' was furnished prior to registration of the case and therefore, it authenticity and genuineness is above board.
9. In the light of what has been stated herein abovehere is no necessity whatsoever to refer the matter to hand writing expert to get the thumb-impression of Mst. Samina Bibi verified. The abductee is Mst. Samina or Mst. Surraiya is a question of fact which has been determined by the Courts below with cogent reasoning and cannot be reversed by this Court without lawful justification which is lacking in this case. The learned Single Judge in chambers has dilated upon all the contentions as agitated before us in the judgment impugned, relevant portion whereof is reproduced herein below for ready-reference:-- "14. So far as the appeal of Shah Muhammad against his conviction and sentence under Section 10(3) of the said Ordinance, is concerned, even the learned counsel for the appellant have not challenged that. He made statement on the basis of instructions imparted to him that the suit filed by Shah Muhammad for conjugal rights against Mst. Samina Bibi, had been dismissed and he had not filed any appeal against that order.
Shah Muhammad during trial had emphatically claimed that he had married Mst. Samina, who had now given her name as Mst. Surraya Bibi, and she had been living with him as a wife. However, he had failed to produce any evidence at the trial in support of the plea put forth by him except his own bare statements that suit filed by him for conjugal rights stood dismissed. Moreover, he had claimed marriage with a girl known as Mst. Sarnina d/o Muhammad Ahmad, complainant.
Muhammad Ahmad stated that he had no daughter named as Samina. Mst. Surraya Bibi stated at the trial, categorically, that she was never named as Mst. Samina and was Surraya. The claim put forth by Shah Muhammad that Surraya in fact was Samina, not only stood belied by the declaration made by Mst. Surraya and her father, but also by the National Identify Card, produced by her which beared her name as Mst. Surraya. In that regard Muhammad Ahmad also stated that name of Mst. Surraya as his daughter was mentioned in the Form-B' of the Registration Authorities.
That being the position on record, the only point which needs consideration and adjudication, in this case, is, whether the intercourse committed by Shah Muhammad with Mst. Surraya (as admitted by him) amount to Jamma or Zina. Since he had failed to produce any evidence in support of his plea, the intercourse committed by him with Mst. Surraya, amounted to zina, which comes within the purview of commission of offence under Section 10(3) of the said Ordinance.
Resultantly, conviction of the appellant under Section 10(3) of the said Ordinance, is maintained."
10. The conclusion as arrived at by the learned trial Court duly affirmed by learned Federal Shariat Court being well based and exceptionable does not admit interference. Mr. Arshad Ali Chaudhry, learned ASC on behalf of appellant could not point out any jurisdictional defect, serious infirmity or grave illegality in the judgment impugned warranting interference by this Court. The appeal being merit less is dismissed.