1. ' Aran HUSSAIN, C. J.-This matter was first heard by a Single Bench, but since a notice for enhancement of sentence under section 11 of the Zina (Enforcement of Hudood) Ordinance, 1979 was issued, it was considered advisable that it should be heard by a Division Bench. In these circumstances the case was heard by this Bench.
2. This is an appeal by Ali Raza Shah convict against his conviction under sections 11 and 10(3) of the above Ordinance and his sentence for the first offence to 7 years' R. I., 10 stripes and a fine of Rs, 5,000 (in default two years' R. I.) and for the second offence to 7 years' R. I., and 10 stripes. Both the sentences of imprisonment were directed to run concurrently vide order of the learned Additional Sessions Judge, Lahore dated 31st October, 1982.
3. ' The learned Additional Sessions Judge acquitted Waheed, co-accused, but convicted Ali Raza Shah on both counts.
4. ' The prosecution case is that on the 9th of May, 1981 Mst. Taslim, W. 3 aged 15/16 years and Mst.
5. Maryam, P. W. 4 aged 10 years daughters or Mehanga, P. W. 2 went in a Bus to Kasur from Lahore.
6. When the bus reached Kahna, Maryam asked Tasleem to arrange for her something to eat. Both of them went to a nearby place where they took nan-haleetn. In the meanwhile, the bus in which they had trave left for Kasur. They boarded another Bus. When they reached Kasur and wanted to alight from it, the Cleaner of the bus stopped them under threat from doing so. The bus was then brought back to Lahore at the bus stand Badami Bagh at about 10/11 p,m. Here again they were stopped from leaving the bus. The Cleaner placed a matress (Gadda) on the floor of the bus and committed zina-bil-jabr with Mst.
7. Taslim, P. W.
3. At that time the Driver called Shah came there. He also committed zinc-bil-jabr with Taslim after which he took her and Maryam both in a Rikshaw to his sister's house in Gulberg, where too he committed zina-bil-jabr with Taslim. In the morning, he again took the two girls in a Rikshaw. When he reached Sodiwal quarters, Multan Road, Lahore, where these two girls resided, he dropped Mst.
8. Maryam and took Taslim to his house at Pattoki, where also he is said to have committed sexual intercourse with her.
9. ' Mst. Maryam informed her father about this incident. He made an application to the Martial Law Authorities on the 10th of May, 1981. The Officer on duty directed the Police to register the case and bring the offenders to book In these circumstances the First Information Report was recorded at Police Station Badami Bagh, Lahore, on the 11th of May, 1981.
10. ' The same day Akbar Ali, A. S. I., P. W. 7 made a search for the two accused persons in the company inter alia of Mst. .Maryam, Mohammad Siddiq, P. W. 6, a friend of her family, and Mehanga P. W.
11. 2.
12. ' Mst. Maryam identified Ali Raza Shah, appellant, and pointed out towards him on which he was arrested immediately. Waheed could not be arrested till the 14th when his application for bail before arrest was dismissed.
13. ' On the interrogation of Ali Raza Shah it was found that Mst. Taslim was at his house, He led the police party to Pattoki; where from his house was recovered Mst. Taslim in the -presence of Mehanga, P. W. 2, and Muhammad Siddique, P. W. 6, both of whom are the recovery witnesses in this case.
14. ' Mst. Taslim was medically examined by Lady Doctor Razia Begum, W. M.
15. 0., P. W. 1, who found her to be 16 years-of age and observed that there were no marks of violence on her body, her hymen had got two old partial tears, one on the right side and the other on the left, and the vagina admitted two fingers easily. In her opinion she had been subjected to intercourse and it was possible that the first intercourse with her might have taken place 15 days or a month earlier or even more. She took two vaginal swabs which she sent to the Chemical Examiner for detection of the semen. The report of the Chemical Examiner is positive. Since he found these swa bs stained with semen.
16. ' Mst. Taslim was also examined under section 164, Cr. P. C. By a learned Magistrate on the 19th of May, 1982.
17. ' We have been taken through the voluminous record of this case by the learned counsel for the appellant. The record has become voluminous on account of almost irrelevant long cross- examination by the learned counsel for Wabeed.
18. In or opinion, the charge under section 10(3) is not established against' the appellant beyond any reasonable doubt. In her statement under section 164, Cr. P. C. Which was recorded after a week of her recovery, Mst. Taslim did not allege that she was subjected to sexual intercourse by All Raze Shah either at the bus stand or at his sister's house or at his own house. Her allegation regarding the commission of this offence was against Waheed only. As regards All Raza Shah, she had only charged him with taking her away to his sister's house from the bus stand, then to the Sodiwal Quarters where Maryam was left and then to Pattoki, where she remained till her recovery. Mst.
19. Maryam also did not support the story regarding the commission of rape by Ali Raza Shah in the bus. There is no doubt that she was subjected to sexual intercourse which is established by the report of the Chemical Examiner on the vaginal swabs taken by the Lady Doctor. This act might therefore have been committed by Waheed, and not by Ali Raza Shah.
20. ' The only question, therefore, is whether the evidence is sufficient for the conviction of Ali Raza Shah under section 11 of the Ordinance. In support of this plea there is the evidence of Mst. Maryam, the evidence of Mst. Taslim and the evidence of the latter's recovery from the house of Ali Raza Shah at Pattoki, which consists of the statement of Mst. Taslim herself, Mehanga, Mohammad Siddique and Akbar All A. S. I.
21. ' It is clear from the record that there is no enmity between the appellant and the police or the appellant and the complainant party. In fact the appellant and the complainant party were not known to each other at all. In these circumstances, the charge about the abduction of Mst. Taslim by All Raza Shah is proved beyond any shadow of doubt.
22. ' The learned counsel for the appellant argued that Mst. Taslim was not recovered from Pattoki and in this connection he referred to the statements of the prosecution witnesses to the effect that the persons of the same locality had gathered at the spot but they were not made witnesses of the recovery, despite the fact that some questions were put to them by the Investigating Officer. It was also urged that the Investigating Officer did neither inform the Pattoki Police nor take their assistance for the recovery.
23. ' None of these arguments has any force. The mere fact that witnesses from the locality were not made recovery witnesses is not of any consequence since the evidence of Mehanga and Siddique, who have no grudge against the appellant, and did not even know him is straightforward enough to convince us about the correctness of their versions. Ali Raza Shah, appellant examined two witnesses in defence i,e, Ashiq Hussain D. W. 3, and Ghafur Ahmad, D. W. 4, both of whom hail from Pattoki, and they merely gave a negative statement that the girl was not recovered from the house of Ali Raza Shah, who was a man of good character. Such evidence is of no avail in the face of the positive evidence which there is no reason to disbelieve.
24. ' The learned counsel lastly argued that this could be, merely a case under section 16 which makes only taking away or enticing away of a female, an offence. He relied upon that portion of the statement of Mst. Maryam, in which she said that Ali Raza had promised to rescue them. Clearly the conduct of Ali Raza proved this pretext as false. This was a deception played by him upon Mst.
25. Tasleem since instead of taking these two girls to their house at Sodiwal quarters, Multan Road, he took them first to Gulberg, where they were lodged in his sister's house for a night. Next morning, he undoubtedly took them towards Sodiwal quarters, but this was only to get rid of Mst. Maryam who was left near her house. He then sped away with Mst. Taslim and took her to Pattoki. From this it is established that his promise to rescue them was merely to deceive them so that they may willingly accompany him. His intention throughout was to abduct Mst. Taslim. This abduction is covered by the definition of section 11. If is established on the record that the two girls were being taken by the appellant at his sweet will A stranger as he was he must have advanced some excuse or made some promise to them to keep them quiet.
26. The learned counsel submitted that the intention which is necessary to prove the offence under section 11 is not proved in the present case. The intention should be either to compel a girl to marry any person against her will or in order that she may be forced or seduce to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
27. ' Either of these intentions can be 'presumed when a stranger takes away a young girl to such a distance and gets, rid of her minor sister in the way.
28. ' We agree with the learned Additional Sessions Judge that the case under section 11 is established beyond any possibility of doubt against the appellant.
29. ' The learned Additional Sessions Judge, sentenced the appellant to 7 years' R. I. Only, although the sentence for this offence is life imprisonment, and whipping up to 30 stripes, and also tine.
30. ' We have held in several cases that the sentence of life imprisonment cannot be reduced. It was for this reason that a notice to show cause why in exercise of Provisional Jurisdiction the sentence should not be enhanced, was served upon the appellant.
31. We maintain the conviction of appellant under section 11, and sentence', him to life imprisonment, 30 stripes and Rs, 5,000 as fine. In default of payment of fine he shall undergo further R. L for one