1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-This direct appal is directed against judgment, dated 23-10-1983 of the Federal Shariat Court ; whereby while upholding appellants' conviction under section 11 of the Offence of Zina Enforcement of Hudood) Ordinance, 1979, sentence was enhanced froth 19 years' R. I. (20 stripes and fine) to life imprisonment and while maintaining Ishtiaq's conviction and sentence of 15 years' R. I. And 20 stripes under section 10(3) of the Ordinance, dismissed their appeal.
2. The facts summarised from evidence by the Federal Shatiat Court are that "Mst. Mussarat P. W. 3 a minor girl aged about 13 years was coming at about 8-00 a.m. On the 16th of October, 1981 from the House of her paternal-uncle when Ishtiaq Ahmad appellant gagged her mouth on the way and forcibly put her in a rickshaw which was driven by Babu appellant. She was taken to the house of the sister of Babu where it was suggested that she may be married to Ishtiaq Ahmad who had kidnapped her but his sister (Mst. Zakia Bibi, D. W. 1) did not agree with this proposal on the ground that the girl was a minor. Ultimately, the brother of Ishtiaq Ahmad whose name is not on record informed the appellant that there was a compromise with the parents of the girl and she had to be restored to them. The two appellants took with them Ms/. Musarrat but on the way they were hauled up at Chowk Yateem Khana by the Police in the presence of Fazal Din P. W. 5, maternal- uncle of Mst. Musarrat P. W. 3 and there she was recovered from them on the 10th day of abduction.
3. Mst. Musarrat Bibi was medically examined by lady Dr. Akhtar-un-Nisa Gilani, P. W. 4, who observed that there was no injury on the body but the hymen was torn posteriorly. There was no fresh bleeding or tear. The tear was reddish and healed. The vagina admitted two fingers easily. She took two vaginal swa bs which were sealed and sent to the chemical examiner, whose report Fah. P. B. Is positive since these swa bs were found stained with semen. The first information report of this occurrence was given at Police Station Samanabad on the 23rd of October, 1981 by Muhammad Shafique, P. W. 6, real brother of Mst. Musarrat Bibi, P. W.
3. The recovery was made on the 25th of October, 1981 while the medical examination was conducted on the 26th of October, 1981. In support of the story of forcible abduction (and Zina) two witnesses ware produced, namely Barkat Ali, P. W. 2 and Mst. Musarrat Bibi, P. W.
3. Barkat Ali is the mother's brother of Mst. Musarrat Bibi".
4. The defence plea was of denial and false implication. The recovery of the abductee from the appellants on 25-10-1981 was also denied. Ishtiaq Ahmad alias Kaka appellant asserted that the parents of the abductee owed him Rs, 22,000 and there was some dispute in that behalf. Ilyas alias Babu appellant furnished the following explanation for his implication in the case "I went to the shop of Shafique P. W. Alongwith Ishtiaq accused so that Ishtiaq gets back his money but Shafique P. W. Refused on which they had a fight. This incident took place on 15-10-1981 in the evening. I was falsely involved in this case because of my friendship with Ishtiaq accused."
5. Two witnesses were examined in defence. D. W. 1 is Mst. Zakia Bibi sister of Babu appellant who denied that part of the occurrence which was attributed to her by the prosecutrix ; but she could not stand the test of cross-examination. Pervaiz Ahmad D. W. 2 tried to support the explanation of Baba appellant regarding his implication in the case. Both the learned Courts have relied upon the prosecution evidence regarding abduction, rape and recovery. The learned trial Judge convicted and sentenced Ishtiaq appellant under section 10(3) of the Ordinance and both the appellants under section 11. But when awarding sentence under section 11 committed the illegality of sentencing them among others to 15 years' R. I. While the imprisonment which can be awarded thereunder is "life" imprisonment. The Federal Shariat Court after issuing notice to the appellants in that behalf removed the illegality and enhanced this sentence to life imprisonment regarding both the appellants.
6. With the help of the learned counsel for the appellants we re-examined the evidence and also heard him at some length.
7. The statements made by the two eye-witnesses including the prosecutrix are material and also convincing. They have rightly been relied upon. The arguments in this behalf regarding the identity of the victim minor girl based on a discrepency in the name of her father, is too technical to be given any importance particularly when the witnesses were not asked in cross-examination to explain the same. The other argument on merits is that close relations of the abductee failed to prevent her being forcibly taken away and also did not try to pursue the culprits. Barkat Ali while giving the relevant facts made a straightforward statement, from which, it is evident that it was impossible and futile for them to do so. Some argument was addressed to show that the abductee was a willing party because she did not raise hue and cry when she was made to travel in a bus for some distance. The age difference between her and the accused (when she was hardly 13 years of age) was in the circumstances of the case enough to convince her that it will be futile ; particularly when she had already been subjected to brute force and further that the accused had a weapon of offence.
8. The conviction in this case, we are satisfied, is based on correct principles of appreciation of evidence and the same is upheld. Learned counsel however raised two legal arguments as well.
9. Firstly, that the sentence awarded by the learned trial Judge under section 11 being illegal, it could not be enhanced. He relied upnn Emperor v. Asghar Ali in this behalf and in fairness also cited Bodhi alias Faqir Hussain and others v. The State , which goes against his argument. Secondly, he argued that Ilyas alias Babu appellant could not be held guilty under secton 11 of the Ordinance. In this behalf he has contended that during the period that the abductee is said to have remained in1 2 the rickshaw of Babu appellant or otherwise thereafter when she remained with Ishtiaq alias Kaka appellant and or in the house of Babu's sister, there was no kidnapping or abduction by him (Babu appellant). In support of this contention he has cited Muhammad Razzaq and another v. The State , but the same after proper analysis, it was found, was not attracted to the facts of this case.
10. After some arguments on the first point learned counsel agreed that the sentence of rigorous imprisonment awarded by the learned trial Court in this case is legal if the touchstone in this behalf mentioned in the case of Emperor v. Asghar Ali cited by him, is kept in view. Because in that case the period as under-trial prisoner was treated by the trial Court as a legal sentence which was impermissible by law and that being so 'no' sentence was passed therein. In the present case rigorous imprisonment, being a legal sentence, having been passed, the Federal Sharit Court was competent to examine in its revisional jurisdiction, the legal and propriety (both), of the sentences passed in the case and also enhance the same in case it was otherwise necessary to do so. In this case it was necessary to do so because under section 11 sentence on conviction which the learned trial Court was competent to pass was of life imprisonment. Therefore, the argument raised by the learned counsel has no force. For the same reasons we approve the view taken by the Lahore High Court in this behalf in the case off Bodhi alias Faqir Hussain that in case under section 302, P. P. C. a senate of imprisonment lesser than life imprisonment could not be passed and that' in its revisional jurisdiction the High Court had the power and the jurisdiction to enhance such illegal and inad equate sentence to legal sentence.
11. The second argument of the learned counsel in reality has already been dealt with in another connection. It depends upon the appreciatinn of evidence as to whether the abductee in this case was not a willing party. There is nothing on record to show that she had gone with the two appellants willingly ; and that whatever according to the eye-witnesses happened at the time of the occurrence in which she was physically gagged, put in rickshaw and lifted away, was not true. It has already been examined and the prosecution in this behalf, has been found correct. Even if the abductee who was then a minor of tender age, would have been a willing party it could still have been covered by the definition of kidnapping. However, it is not necessary to examine this question any further in this case because a proper finding of forcible abduction has already been affirmed.
12. The question of sentence regarding Ilyas might have been examined in another context namely the gravity of the acts and the proportionate severity of the sentence which could be awarded to each of them ; but section 11 as it stands on tne statute book, has not made any distinction between the ordinary and a graver offence of abduction or for that matter kidnapping. The minimum sentence of life imprisonment having been prescribed by statute, it is for the law-makers to make appropriate amendment in this behalf. Many cases have come to the notice of this Court were serious possibility of reduction of sentence could have been examined if the law could have permitted so. But on account of the rigidity of the provision contained in section 1 t, it is not possible for the Court to reduce the sentence of Ilyas. In this behalf some general remarks were also made by this Court in the case of Muhammad Azam v. Muhammad lqbal and others (i)..
13. Before closing this judgment it needs to be mentioned that the learned counsel also raised a contention regarding the date of the arrest of the accused and argued that they were found present in Police Station by Barkat Ali P. W. Even on the day when the case was registeied. While according to the police their arrest alongwith the abductee, took place on 25th October, 1981. We after having examined the record in this behalf do not find it necessary to make any serious comment on it. Firstly because the maintenance of record on this precise issue by the trial Court is not very satisfactory and a further inquiry might be necessary in order to ascertain what the witnesses stated and what was recorded during his examination. And secondly even if the evidence of the recovery of the abducted is excluded from consideration the remaining evidence is more than enough to uphold the conviction.3 With these observations we find no merit in this appeal and the same is dismissed. AIR 1919 Lab. 29 PLD 1976 Lab. 1418 PLD 1967 SC 363