By a short order passed earlier today on 24th October, 1983, I had announced order of grant bail to the petitioner in the sum of Rs, 10,000 with two sureties each in the like amount to the satisfaction of A. C./Duty Magistrate, Rawalpindi. This judgment constitutes the reasons for the said order.
2. The facts of the case are that the petitioner alongwith two Co. Accused, is charged under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979) for having abducted at 3 p. m. On 26th August, 1983, complainant Shaukat Javed, a boy of 15 years of age by inducing him by deceitful representation to go alongwith them from a place in Sadar Rawalpindi near Seeroze Cinema to the house of Muhammad Anwar co-accused situate at Dhoke Chaudhrian with the intention of committing unnatural sexual intercourse with him. It is alleged in the F. I. R.
Which was registered at 7.45 p. m. On 27th August, 1983, that there the complainant Shaukat Javed was confined in a room and during the night the petitioner alongwith the co-accused took wine and had tried to commit unnatural sexual intercourse with him but he had resisted as a result of which he sustained injuries on various parts of his body and on account of his resistence, the petitioner and co-accused Mushtaq went away at about mid-night, and co-accused Anwar also went to sleep and in the morning the petitioner and Mushtaq co-accused came and deceitfully tied him by his arms and the petitioner and co-accused went away to make a survey of circumstances and he remained tied up in the room for a long time and had in the end after great difficulty, been able to untie his arms and afternoon-time when Anwar co-accused, finding him tied up went to sleep, he availed of the opportunity and had escaped and reached his house and had related the entire incident to his maternal uncle, with whom he had come to get the F. I. R.
Registered.
3. The police got Shaukat Javed complainant medically examined on 27th August, 1983 at 8.15 p. m.
And according to medico-legal report he had seven simple injuries caused with a blunt weapon on his person. Police arrested the petitioner on 28th August, 1983.
4. According to the police record there is no eye-witness of the occurrence except the complainant Shaukat Javed. Other witnesses who appeared before the police are Muhammad Hussain, maternal uncle of complainant Shaukat Javed, Shahbaz and Muhammad Yaqoob, before whom complainant related to Muhammad Hussain, the entire happening.
5. I have heard the learned counsel for the petitioner as well as learned counsel for the State, and have also perused the police record. According to dictum of law laid down by their Lordships of the Supreme Court in case of Khalid Javed Gillan v. The State to decide the question of bail, it is permissible to make a tentative assessment of evidence on police record to find out if on the basis of it, the offence under section 12 of Ordinance VII of 1979 can be said to have been made out against the petitioner.
6. On perusal of the F. I. R., it is difficult to find out the actual deception played upon complainant Shaukat Javed to induce him to go from Sadar Rawalpindi to the house of Muhammad Anwar.
Anwar co-accused is alleged in the F. I. R. To have told Shaukat Javed that his father had come to know of the fact that he was smoking cigarettes but the said circumstance does not by itself show that it is a deception unless it had been further alleged in the F. I. R. That said representation was false. The said further allegation, however, does not stand incorporated in the F. I. R. Therefore, complainant has not made out a clear case of abduction in the F. I. R.
7. Notwithstanding the allegation by S haukat laved that during night, petitioner and his co- accused had atte mpted to commit unnatural sexual intercourse with him. The intention to commit the said act does not appear to be made out from the facts and circumstances detailed in the prosecution case. There is no allegation in the F. I R. That shalwar of the complainant was removed and even attempted to be removed. There is no allegation therein of even any step having been taken by petitioner to open his shalwar. No torn clothes have been produced before the police.
There is no scratch in and around any part of anus of the complainant. There is no external exhibition on the person or the clothes of the petitioner in respect of any intention on the part of petitioner to commit unnatural sexual intercourse with the complainant. If there had been any such sign, it would have corroborated the statement of the complainant in regard to intention of petitioner. Instead of such corroborating evidence there are seven simple blunt weapon injuries on other parts of the body of the complainant which appear to make out a case of offence under section 323, P. P. C. Only and obviously do not support at this stage the intention to commit unnatural sexual intercourse with him. Besides the absence of any positive fact to show the said intent, there are other facts mentioned in the F.
1. R. Which appear to militate against the existence of any such intention on the part of petitioner.
Petitioner had two co-accused along-with him and all the three were of age and were ranged as against a boy of only 15 years of age and the required loneliness and darkness of the night were available to petitioner so accomplish his object with that strength of co-accused alongwith him and, therefore, it appears that if petitioner was so minded, he could have, with the help of his said two co-accused, compelled the complainant to surrender to his wishes. The fact that he did not allegedly proceed further in that direction appears to belie any such intention on his part. There is the further circumstance of no step having been taken by petitioner to make even an attempt to commit unnatural sexual intercourse with the complainant when he lay tied down by his arms and confined in the room. It is not alleged in the F. I. R. That petitioner had molested or even come near him at that time. The complainant was then completely at the mercy of the petitioner who was accompanied by said co-accused. The fact that the petitioner did not commit unnatural sexual intercourse or even made an attempt to commit the same with him appears to negate any such1 intention on the part of the petitioner. In Muhammad Ashraf and 2 others v. The State , the facts found were that accused had beaten and confined the complainant in their cattleshed and one of them although armed with a hatchet, had yet used it only once and had given simple injury on the head of the complainant even though none intervened and nothing could prevent him from doing away with the complainant if he so intended. It was held that accused had no intention to cause death of the complainant. Applying the ratio laid down in that case, on tentative assessment of evidence as available on police record at this stage, I am of the view that no clear case of intention to commit unnatural sexual intercourse stands made out against the petitioner.
8. Abduction is necessary ingredient of offence under section 12 of the Ordinance VII of 1979. It is, however, not defined in the said Cordi-nance. Its definition is available in section 362, P. P. C. Which reads as below :- "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
It is clear from perusal of sections 364 to 367 and 369, P. P. C. That the abduction becomes an offence and is punishable only when it is accompanied by a particular intention. As a practical illustration of rule so deduced, I may refer to some decided cases on the subject. It was held in Nura and another v. Emperor that mere abduction without criminal intent is not recognized as an offence. In case of Narain and others v. Emperor , it was held that since the object of the accused in abducting the woman was to bring pressure on her husband to withdraw criminal case against accused, it could hardly be said that he thought it to be likely that she would be forced or seduced to illicit intercourse and, therefore, in the absence of requisite intention mentioned in section 366, P.
P. C. The conviction under section 366, P. P. C. Could not stand. In Nura v. The State it was held that abduction by itself is not punishable under the Penal Code and is punishable only if it is done with one or other of the intents specified in sections 364, 365, 366, 367 and 369 of the Penal Code. In the said case, accused took a woman forcibly away from the house of her parents to the house of her husband and compelled her to live there in the house of her husband against her will. It was held that the accused had committed no offence. In Hussain All Shah and another v. The Crown , it was held that mere abduction is not sufficient for offence under section 366. P. P. C. In that case a prostitute had left her place of her own accord with the accused with the intention of giving up prostitution. Their Lordships of the Supreme Court held that prosecution must also prove intention on the part of the abductor that woman abducted was to be subjected to illicit intercourse by use of force or seduction. The charge under section 366, P. P. C. In that case was held to have not been proved. It is thus clear that the requisite criminal intent is sine qua non for turning the act of abduction into an offence under the Pakistan Penal Code.
9. Precisely same is the position in respect of abduction incorporated in section 12 of Ordinance VII of 1979. The language in which the said section is couched makes it necessary for the prosecution to establish the intention to commit unnatural sexual intercourse with the complainant in order to turn the otherwise innocent act of abduction into a criminal offence under the said provision. That important ingredient of offence under section 12 of Ordinance VII of 1979 appears at this stage to be missing. No clear case in respect of the said intention having been prima B facie made out, at this stage, there appears to be no reasonable ground to believe that the petitioner has committed the offence under section 12 of ordinance VII of 1979.
10. It was for the foregoing reasons that I had accepted bail application of the petitioner and had granted him bail.
11. A word of caution before I part with this order and that is that observations made in this order are of tentative nature based on evidence as at present available on police record and are meant only for decision of the bail application placed before me and the Court trying the accused person2 3 4 5 6 should not allow its mind to be affected by the said observations and should decide the case in accordance with his own view of the evidence which may be produced before it. PLD 1978 SC 256 1971 P Cr. L 25 AIR 1934 Lah. 227 AIR 1935 All. 665 PLD 1960 (W. P.) Lah. 53 1969 SC 144 1 491