1. ' JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).--'This appeal through special leave of this Court is directed against the judgment of the Federal Shariat Court dated 22nd November 1982; whereby in a case of abduction of a female, the appeal filed by her father-complainant/first informant, against the acquittal of the appellants in an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 was allowed. The trial Court had recorded conviction only for trespass under section 457, P. P. C. It (the Federal Sheriat Court) converted the finding of conviction under section 457, P. P. C. To one of conviction under section 18 of Ordinance VII of 1979.
2. ' Leave was granted to examine only two law points namely.
3. Whether the Federal Shariat Court was empowered to allow criminal appeal against acquittal which was filed by the complainant in a challan case ; and, if the answer is in the negative.
4. ' Whether it could while setting aside the conviction under section 457, P. P. C. Convict and sentence the accused under section 18 of the Offence of Zina (Enforcement of Hudood) ' Ordinance 1979.
5. ' As the tenor of the leave granting order shows, it was refused in so far as the merits of the case are concerned.
6. ' The prosecution case as contained in the deposition of Haq Nawaz P. W. Father of the abductee who is also the first informant in the case is as follows : "The occurrence took place about 6i months ago (on 6-11-1981 at 7 p. m.) when I was sleeping at a distance of about 12 Karams near my cattle and my daughter Mst. Bashiran was sleeping in the courtyard. On her alarm at mid-night I got up and ran towards the south. I saw Mitha and Imam Bakhsh accused catching her from the arms and Habib and Zulfiqar accused from the legs and carrying her away. Mitha was having a revolver, Imam Bakhsh and Habib sofas and Zulfiqar a hatchet. On the alarm Hayat, Jiwan and Haq Nawaz P. Ws. Also reached. On our reaching, the accused threw her and ran away. They had taken her to a distance of about 20/25 Karams towards the south of the courtyard. While leaving the spot Mitha had also fired. In the morning I left for Darya Khan and the police came across me at the bus-stand over there and recorded my statement Exh. P. A., which was read over to me and thumb-marked by me as correct.
7. ' I had given Mst. Bashiran in the Nikah of Shabbir about 6/7 years before the occurrence. Mitha, Imam Bakhsh and Habib accused are the sons of my sister and their father Siddiq wanted her hand for Mitha. I, however, refused. The formal marriage of Mst. Bashiran with Sbabbir was to be performed on the 16th while the occurrence took place on 7th, Zulfiqar is a friend of the other accused.
8. ' Dhoti (P. 1), muffler (P. 2), crime empty (P. 3), hatchet (P. 4), chappals (Exh. P. 5/1-2 and P. 6/1-2) and pair of sleepers (P. 7) were left at the spot, which I produced before the Police on the following day and were taken into possession vide memo. Exh. P. B."
9. ' Ocular evidence (including Mst. Bashiran the abductee) was examined and so also the evidence regarding recoveries. Although the learned trial Judge had framed a charge under section 11 of the Ordinance VII of 1979 and section 457, P. P. C. He on a finding that the intention was to abduct Mst.
10. Bashiran, the appellants did not succeed in achieving the object accordingly acquitted them in so far as the offence of abduction is concerned, but convicted them under section 457, P. P. C. And was awarded sentence of 5 months' R. Leach which was treated as undergone by them "as under- trial prisoners") and a fine of Rs, 1,000 each in default whereof six months' R. I. Half of the fine on recovery was ordered to be paid to Mst. Bashiran as compensation.
11. ' The convicts did not challenge their conviction under section 457, P. P. C. The complainant Haq Nawaz however filed an appeal before the Federal Shariat Court insofar as the acquittal under section 11 of Ordinance VII of 1979 is concerned. It was partly allowed with a finding that although the abduction of Mst. Bashiran was not established, the appellants had made an attempt to abduct her. They were accordingly convicted under section 18 and not under section 11 of Ordinance VII of 1979. The conviction under section 457, P. P. C. As is apparent from the operative part of the impugned judgment was converted to section 18 of the Ordinance and each of the appellants was sentenced to 4 years' R. I. And also 10 stripes each. The sentence of fine imposed by the trial Court was also maintained.
12. ' The first question noted in the leave granting order stands already resolved by the judgment of this Court in Muhammad Riaz Ahmad v. Ajmal Hussain and others In that case the prosecution for the abduction of a femade before the trial Court had ended in acquittal. The complainant dissatisfied with the acquittal filed an appeal under section 20 of the Ordinance before the Federal Shariat Court which was dismissed. That was also a challan case as is the present one. It was held that by virtue of section 20(1) of the Ordinance the provisions of the Criminal Procedure Code applied mutatis mutandis in respect of cases thereunder, And section 417, Cr. P. C. Which deals with appeals against acquittal provided in subsection (1) thereof that "the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appeldate order of acquittal passed by any Court other than a High Court". As in the present case, there was no appeal by the Provincial Government in that case also. That being so the question was examined whether the complainant/first informant in a challan case could not file an appeal under subsection (2) of section 417, Cr. P. C. With the following observation : "the complainant can file an appeal, if the High Court (which in the context would mean the Federal Shariat Court) grants special leave to appeal, but this is possible only in those cases where the order of acquittal is passed in any case instituted upon a complaint, which is not the case here. The1 view expressed in Muhammad Hussain v.. Muhammad Ramzan (PLD 1982 F SC 11), tnat a complainant feeling aggrieved by an order of a Court of Sessions can file an appeal before the Federal Shariat Court under section 20 of the Ordinance is not correct as it has been taken by overlooking the provisions of section 20 of the Ordinance which makes the Criminal Procedure Code including obviously section 417 thereof apply mutatis mutandis in respect of cases under the Ordinance. Hence the appeal of the petitioner hereinbefore the Federal Shariat Court was incompetent."
13. The present case which was instituted on a challan by police and not on complaint is covered by the forequoted decision of this Court. The first question noted earlier stands answered accordingly ; with the result that the appeal filed by Haq Nawaz respondent against acquittal, was not competent.
14. ' The second question posed in the leave granting order in. This case as to whether the conviction and sentence of the appellants under section 18 of the Ordinance by the Federial Shariat Court was possible in exercise of revisional jurisdiction in case as held above the appeal by the complainant against acquittal in the offence of abduction was not competent ? This question also stands answered in the case of Muhammad Riaz Ahmad already noticed in the following observation : "However, it is possible to sustain the order of the Federal Shariat Court on the ground that on the date when it was passed viz., 20-7-1982, the Federal Shariat Court had been conferred revisional jurisdiction by the President's Order No, 5 of 1982 whereby Article 203-DD was substituted by a new provision wherein revisional jurisdiction was conferred upon it."
15. Thus it was held that even though in a criminal challan case an appeal filed by a complainant against acquittal is not competent on account of procedural constraint provided by subsection (2) of section 417, Cr. P. C., the same appeal could be treated as a revision. Otherwise too it was possible for the Federal Shariat Court to exercise suo motu revisional jurisdiction with the limitation that an acquittal could not be converted into conviction ; though depending upon circumstances of each matter it could remand the case for retrial. It could also while maintaining a conviction, enhance the sentence, without remanding the case for fresh trial.
16. ' In this case there are two parts of the judgment impugned before us : the first, wherein the Federal Sharial Court on examination of the evidence and material in the case came to the conclusion : that the finding of guilty rendered by the trial Court about the main feature of the case that the appellants trespassed into the house of the complainant with intent to abduct his daughter, was unexceptionable. In the second part, disagreeing with the learned triad Court the learned Judges of the Federal Shariat Court held that the act of the appellants constituted a more serious offence under section 18 of the Ordinance No, VII of 1979 and, not only the trespass under section 457, P. P. C. ; in that the appellants were in reality also guitly of attempt to commit abduction in connection with which they were charged under section 11 of the Ordinance. As already discussed this second part of the decision converting the acquittal under section 11 of the Ordinance into a conviction under a similar but lesser offence of attempt to abduct under section 18 of the Ordinance was not lawful ; because, it could be done only in exercise of appellate jurisdiction and not in revisional jurisdiction. The Federal Shariat Court however, could in exercise of its revisional jurisdiction, while maintaining the conviction of the appellants under section 457, P. P. C., enhance the sentence thereunder.
17. ' In the facts and circumstances of the case, particularly when this Court had refused to grant leave to the appellants regarding merits thereof, we do not deem it fit to remand the case to the Federal Shariat Court for fresh decision in its revisional jurisdiction. The findings of fact having already been upheld by this Court, a just and proper consequential order can be passed. Without the remand of the case. What the Federal Shariat Court could do in revision, this Court in appeal, can also do the same.
18. ' The offence under section 457 is punishable with 5 years' R. I. And fine. The sentence of stripes could not be awarded thereunder. We accordingly partly allow the appeal and set aside the conviction of the appellants under section 18 of the Ordinance; and, while also setting aside the F sentence of whipping, enhance the sentence awarded by the trial Court to the appellants under section 457, P. P. C. To 4 years' R. I. And fine of Rs, 1,000 each and in default of payment of fine to six months' R. I.
19. ' The amount of fine on recovery shall be paid in its entirety to Mst. Bashiran as compensation. The appellants shall surrender- to serve the remaining sentence of imprisonment. Before parting with this judgment it needs to be clarified that the benefit of section 382 (B), Cr. P. C. Granted by the trial Court to the appellants shall also be available to them under this judgment. It is also necessary to note and observe that when asked to show-cause why this Court should not in exercise of the revisional jurisdiction, which was available to the Federal Shariat Court, enhance the sentence, learned counsel firstly opposed it; but in alternative suggested, that if at all, the sentence of imprisonment should not be as high as awarded by the Federal Shariat Court instead a lesser sentence of 2 years' R. I. With heavier fine, the amount of which could be directed to be payable as compensation, would meet the ends of justice. In the facts of the case, as at present existing and found, the accused party having attempted to take law into their own hands not only committed a serious crime of trespass under section 457 with the intention to abduct a young girl but also vis- a-vis the complainant party who are their very close relations, committed an act of great social impropriety and thus harassed an innocent lady and insulted her father. The suggestion accordingly was not accepted. An observation was then made which we repeat here, that in case the appellants really feel ashamed of what they did they should express it to the complainant side together with adequate monetary compensation so as to seek and obtain forgiveness from them, and then to make them agree to submit a joint application to the Government for relief and redress, which it will be competent to grant under section 401 of Cr. P. C. PLD 1983 SC 233