' ZAFAR PASHA CHAUDHARY, J.--- Hameed Masih son of Rehmat Masih was sent up to face trial in the Court of Mr. Arshad lqbal; Additional Sessions Judge, Multan in case F.I.R. No,301, dated 27-6- 2000 registered with Police Station Gulgasht, Multan under sections 11 and 10(3) of the Offence of Zina (Enforcement of fudood) Ordinance, 1979., On conclusion of the trial he was convicted under section 11 of the Ordinance (ibid) and was sentenced to undergo imprisonment for life with a fine of Rs,50,000 in default whereof to suffer four months' S.I. He was also convicted under section 10(3) of the Ordinance (ibid) and was sentenced to undergo imprisonment for 14 years' R.I. Benefit of section 382-B, Criminal Procedure Code was extended to him. Both the sentences had been ordered to run concurrently.
' The appellant was lodged in jail to serve out his sentence. He being pauper could not engage private counsel, therefore, submitted the appeal through Superintendent, New Central Jail, Multan, which was entertained and admitted to regular hearing. Under the rules the appellant was provided with a defence counsel to pursue the appeal at State expense.
2. Brief facts relevant for disposal of the appeal are that Bashir Masih (P.W.2) father of Mst. Surriya Bibi, P.W.4, the victim, lodged a complaint with police vide Exh.P.B. Stating inter alia that he was employed as Sweeper in Nishtar Hospital, Multan. On 14-5-2000 Hameed Masih, appellant his distant relations visited his house as guest and spend night in his house. In the morning the complainant and his wife left the house to attend their job. At about 2-00 p.m. They returned to the house, Mst. Surriya Bibi was found missing. On inquiry the children informed him that Hameed Masih, appellant had taken Mst. Surriya Bibi Bazar for shopping. They were awaited till night but they did not turn up. Their search was initiated where on the way Akbar Masih (not procured) and Siddique (P.W.5) informed that a day before, i,e, on 15-5-2000, Hameed Masih appellant was proceeding to Chowki Kumhara along with Mst. Surriya Bibi in a Rickshaw. It was apprehended that Hameed Masih appellant had abducted Mst. Surriya Bibi to have illicit intercourse with her.
' The report was made on 26-5-2000 to Muhammad Ramzan, A.S.-I., on the basis of which formal F.I.R. Exh.P.B./1 was drafted, who also conducted investigation. After completing necessary formalities of investigation and collecting relevant evidence appellant Ilamid Masih was found to be guilty. He was sent up to face trial as detailed above.
3. The prosecution in order to establish the guilt of the appellant examined seven witnesses, out of them Mst. Surriya Bibi, P.W.4 being victim is the most important. As per deposition made by her she was alone in the house on 15-5-2000. The appellant on the pretext took her out to have shopping in the Bazar. She was asked to sit in the Rickshaw, thereafter was taken to Rojhan, a distant village.
She was made to stay there for a week, during that period the appellant kept on committing Zina- bil-Jabr with her. She was threatened to keep silent. She was further removed to house of his friend in Province of Balochistan and kept for about two weeks. During that period, as well the appellant kept on committing Zina-bil-Jabr with her. She was brought back to Multan as appellant required obtaining some loan from his friend at Multan. Mst. Surriya Bibi finding an opportunity raised hue and cry, which attracted the police party. They arrested Hameed Masih appellant. The victim in the custody of the appellant was handed over to complainant, her father Bashir Masih, P.W.2. She gave her age as 15 years. Lady doctor Nabila Tariq, P.W.7 also recorded her age as 14/15 years.
4. The victim was medically examined and as per medico-legal report no marks of violence or signs of struggle were seen on any part of her body Hymen showed multiple old healed tears and vagina adrnitted/two fingers easily, Vaginal swabs were obtained and were dispatched for chemical analysis. According to the report of the Chemical Examiner, Exh.P.E. The swabs were found to be stained with semen. Amongst the other witnesses' statement of P.W.2, Bashir Masih is relevant. He reiterated the statement already made by him before the police in Exh.P.B.
Muhammad Ramzan, A.S.-I. The Investigating Officer furnished the details of the investigation carried out by him. He denied the suggestion that appellant had been falsely implicated. The remaining witnesses are more or less formal in nature.
5. On close of the prosecution evidence, the appellant Hameed Masih aged 27 years was examined under section 342, Criminal Procedure Code. He pleaded that Bashir Masih, father of Mst. Surriya Bibi had borrowed Rs,50,000 from him and on his demand to return the money, the complainant in league with P. W.5 and police, involved him in this false case. He did not lead any defence and also declined to appear his own witness as permissible under section 340(2), Criminal Procedure Code.
6. Arguments heard and record perused with the help of learned counsel for the parties.
' The learned counsel appearing for the appellant came up with the plea that the conviction in section 11 of the Ordinance is not maintainable. According to him even according to the prosecution case itself there was no intention with the appellant to marry Mst. Surriya against her will or to kidnapping or abduction was not allegedly committed to compel the abductee to marry any person against her will. After going through the contents of section 11 and the evidence in this behalf he inferred that application of section 11 of the Ordinance and the appellant's conviction there under is not proper. According to him on the given facts and circumstances of the case at the best section 16 of the Ordinance could be made applicable. As per section 16 if anyone takes or entices away any woman with intent that she may have illicit intercourse with any person or conceals or detains with that intention then section 16 would be attracted. As per prosecution evidence. Section 16 of the Ordinance would have been more appropriately applicable than section 11.
' The learned counsel apart from his legal objection regarding applicability of section 11 of the Ordinance also argued that the prosecution story as narrated by Mst. Surriya is not plausible. He half-heatedly canvassed that to recover the loan of Rs,50, 000; the appellant has been falsely implicated. The learned counsel however, did not dwell on this version because there was, absolutely no material brought on record in this behalf. An unsuccessful endeavour was made to point out minor discrepancies in the details of narration given by the witnesses, but no discrepancy or infirmity could be pointed out which could belie or damage the prosecution case. The learned counsel in the end pressed into service the definition of adult as contained in section 2(a) of the Ordinance. "Adult" means a person who has attained, being a male, the age of eighteen years or being a female, the age of sixteen years, or has attained puberty". The emphasis has been made on the last part i,e, or has attained puberty". According to the learned counsel the medical examination of Mst. Surriya Bibi does not leave any doubt that she had not attained puberty.
According to the learned counsel she was not a minor and the way in which she accompanied the appellant and remained with him abundantly proves that she was a consenting party. It is, therefore, contended that this circumstances should be treated as an extenuating circumstances for taking lenient view.
7. The learned counsel appearing for the State has supported the impugned judgment. He however, conceded that on the strength of the evidence in the instant case, the offence would fall under section 16 of the Ordinance rather under section II of the Ordinance.
' On factual plane he submits that prosecution has successfully proved the guilt of the appellant.
8. We have gone through the evidence and the record as well as the relevant provisions of the Ordinance. As regards the contention that section 11 is not applicable we have gone through section 11 and section 16 of the Ordinance. The prosecution evidence amply fulfills the various ingredients specified in section 16. Mst. Surriya Bibi, according to the prosecution was enticed away by the appellant on the pretext to have some shopping and thereafter she was removed to a place where she was detained and during her detention she was subjected to illicit intercourse. The element of abduction as well as commission of illicit intercourse has been established by the prosecution through reliable evidence. The statement of Mst. Surriya Bibi that she was subjected to sexual intercourse has been proved through medical evidence and report of the Chemical Examiner. The fact that the police arrested the appellant and Mst. Surriya Bibi was with him at Choongi No,9, Multan proves beyond doubt that she was in his custody and remained in his clutches. The prosecution witnesses Bashir Masih or Mst. Surriya Bibi have no reason or motive to falsely implicate the appellant especially when he happens to be their relations. The defence version that the appellant has been falsely implicated as the complainant owed him Rs,.50,000 is totally devoid of any force. We are, therefore, confident that prosecution has discharged its onus in bringing home the guilt to the appellant.
9. As regards the appellant's conviction under section 11 of the Ordinance as discussed above, we are of the view that the facts and circumstances of the case undoubtedly attract section 16. The learned counsel for the State has also conceded to this proposition, we, therefore, set aside the conviction under section 11 and recorded the same under section 16 of the Ordinance. As section 16 is of less grave offence, therefore, there is no impediment in recording conviction under section 16 of the Ordinance instead of under section 11. As no prejudice will be caused to the appellant, he is therefore, convicted under section 16 of the Ordinance and sentenced to suffer five years' R.I. And also to pay a fine of Rs,5,000 in default whereof to undergo R.I. For three months.
10. It has also been argued by the learned counsel that conviction under section 10(3) of the Ordinance keeping in view that the victim remained with the appellant and therefore, the possibility that she was a consenting party to the sexual intercourse, could not be ruled out. Benefit of doubt even in interpreting of charging section has to be extended to the accused person.
Following this principle the conviction is recorded under section 10(2) of the Ordinance and the appellant is sentenced to undergo five years' R.I. And to pay a fine of Rs,5, 000 in default whereof into further suffer R.I. For three months. Both the sentences shall run concurrently and the benefit of section 382-B, Criminal Procedure Code shall remain intact.
' With the above alteration in the sentences, the appeal is disposed of.