B. G. N. KAZI, J.-The appellant who was tried on the charges of abducting Mst. Inayat Begum wife of Shaukat, aged about 16 years, with intention of seducing or forcing her to illicit intercourse and committing zina-bil-jabar with her, was convicted by the Additional Sessions Judge, Lahore under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to ten years' R. I. Whipping numbering 10 stripes and to pay a fine of Rs, 10,000 or in default to suffer further 2 years' R. I. And under section 10 (3) of the Ordinance to 10 years' R. I. And whipping numbering 15 stripes. The trial Court also found that the appellant had committed offences under sections 342 and 380, P. P. C. And sentenced him to 6 months' R. I. And 5 years' R. I. And to pay a fine of Rs, 3,000 or in default to suffer 6 months' R. I. Respectively. Against the aforesaid convictions and sentences the appellant has filed the instant appeal.
2. The case of the prosecution against the appellant is as under :- Mst. Inayat Begum aged about 16 years at the time of the incident is daughter of complainant Shad Muhammad Pathan resident of House No, 217-Block No, 3, Rahmia Road, Karim Park, Lahore, Shad Muhammad has two wives namely Mst. Zari an old and ailing woman who is mother of his daughter Sanjey Mala and another wife who is mother of Mst. Inayat Begum. The marriage (rukhsati) of Mst. Inayat Begum with Shaukat, a college student and a neighbour, took place on 22nd October, 1981. Mst. Pasehat, elder sister of Mst. Inayat Begum had come to attend the function from Swat. She had her young son accompanying her. After the marriage ceremony Mst. Pasehat stayed over with her parents. Six days after the marriage the son of Mst. Pasehat died. The dead body was taken by the mother to Mangora on 28th October, 1981. Her father Shad Muhammad alongwith his second wife and bridegroom Shaukat and his mother, all accompanied Mst. Pasehat to Mangora. Inayat Begum, her stepsister Sanjey Mala and Mst. Zari, first wife of Shah Muhammad and mother of Sanjey Mala remained in the house. Two days thereafter, that is on 30th October, 1981 the appellant who is a distant relative of Shad Muhammad came to his house and told Mst.
Inayat Begum that her parents had met with an accident and her mother was calling her, Mst.
Inayat Begum had no reason to disbelieve him and accompanied him. Being a newly-married bride she was at the time wearing all her gold ornaments. The appellant took her to Peshawar in the bus. He took her to a hotel and kept her in a room for the night during which he committed zina-bil-jabar with her by threatening her with a pistol. Only then she realised that the appellant had brought her on a false pretext. The next day the appellant took her to his village Katlang and kept her in the house of his brother absconding accused Sher Muhammad and continued committing zina-bil.Jabar with her. Whenever the appellant went out of the house, his brother Sher Muhammad kept watch over her. They tried to persuade her to marry the appellant but she told them that she was already married. The appellant and his brother took her gold ornaments weighing about ten tolas. Both of them later took her towards Lahore. The appellant however got down at Rawalpindi and Sher Muhammad took her to Lahore. They reached Shahdara bus stand where they got down from the bus and waited for the appellant to join them. Earlier when Shad Muhammad returned from Mangora on 1st November, 1981, his first wife Mst. Zari and Mst. Sanjey Mala told him that after they had gone to Swat the appellant had come to the house and had told the bride that they had met with an accident while going to Swat. Mst. Inayat Begum, the bride who at that time was wearing gold ornaments had gone with him. On hearing these facts complainant Shad Muhammad started going to the Police Station and on the way he met A. S.-I. Muhammad Sharif in Karim Park. It was about 7-00 p. m. At the time. He related the facts which were recorded in a statement (Exh. P. C.) by Muhammad Sharif who then obtained thumb impression of Shad Muhammad on it and sent it to the Police Station through the constable Muhammad Hussain. H. C.
Aurangzeb who was incharge of the Police Station Ravi Road received and registered the complaint. A. S.-I. Muhammad Sharif proceeded to the scene of offence of which he prepared rough sketch (Exh. P. F.). He recorded statements of some P. Ws. Under section 161, Cr. P. C. He came to know during the investigation that the appellant had taken Mst. Inayat Begum to Mardan. On 3rd November, 1981 Muhammad Sharif reached Mardan and taking help from local police went to Katlang the village of the appellant. He then came to know that the appellant and his brother had taken Mst. Inayat back to Lahore. On 5th November, 1981 Muhammad Sharif had formed a police party and alongwith complainant Shad Muhammad had gone towards Shahdara bus stand. On the same day at about 2 or 3 p. m. Shad Muhammad saw his daughter Inayat Begum alongwith absconding accused Sher Muhammad and pointed them out to Muhammad Sharif who after recording the statement of Inayat Begum, arrested Sher Muhammad. He sent Inayat Begum to the Police Station under escort of a woman police constable. Next day on 6th November, 1981 he produced Inayat Begum before the First Class Magistrate who recorded her statement under section 164, Cr. P. C. On the same day he got Inayat Begum medically examined by Dr. Razia, W.
M.O. Lady Aitchison Hospital, Lahore. He interrogated absconding accused Sher Muhammad and sent him to judicial lock-up. Appellant Suleman was avoiding arrest and was got declared a proclaimed offender in this case. He was arrested by the C. I. A. Police at Lahore on 3rd December, 1981 in connection with a case under the Arms Ordinance, A. S.-I. Muhammad Sharif was informed about the arrest and, after taking him into custody he took his personal remand. He got appellant Suleman medically examined. On 3rd December, 1981 by Dr. Tahir Anis with regard to his potency.
During course of interrogation the appellant revealed that he had taken ornaments of Mst. Inayat Begum and had sold the same to a goldsmith in Mardan, appellant Suleman then led A. S.-I.
Muhammad Sharif to the shop of P. W. Mukhtar in Mardan which is known as `Kahkashan Jewellers'.
On 9th December, 1981 P. W. Mukhtar the goldsmith produced before the Investigating Officer a gold bar which was taken into possession, vide memo. (Exh. P. D.). After completing the investigation he sent up the appellant for trial. Sher Muhammad the absconding accused had been allowed interim bail by the Additional Sessions Judge, Lahore, whereafter he had absconded and could not be traced. He was declared a proclaimed offender.
3. At the trial P. Ws. Shad Muhammad, Mst. Inayat Begum, the victim. Sanje Mala her sister, Mukhtar the goldsmith were examined besides the two doctors and the Investigating Officer.
4. The appellant whose statement was recorded under section 342, Cr. P. C. Denied that he was a close relation of Inayat Begum but admitted that he was a distant relation. He denied that he had abducted Mst. Inayat Begum as also the further allegation that he had taken her to Peshawar and then detained her in his village Katlang in the house of his brother Sher Muhammad the absconding accused. He further denied forcible removal of gold ornaments of Mst. Inayat Begum or having cornmitted zina-bil-jabar with her. He also denied that he had sold gold ornaments to Mukhtar of `Kahkashan Jewellers' at Mardan. It was his plea that he had refused to the hand of his sister in marriage to the son of the complainant and, therefore, he had been involved in the false case.
5. We have heard the arguments of Raja Abdul Rahim, the learned counsel for the appellant and of Mr. Muhammad Aslam Uns, the learned counsel for the State.
6. The learned counsel for the appellant has raised the following contentions :-
(1) That there was delay in the lodging of F. I. R. Which had not been adequately explained.
(2) That the evidence on record is not sufficient to sustain conviction.
(3) That conviction of the appellant under section 380, P. P. C. Is illegal.
(4) That recovery of gold bar from P. W. Mukhtar is not satisfactorily proved and the aforesaid evidence has no relevance to the charge of abduction. .
(5) That the fixed sentence of imprisonment for life is too severe to be awarded as Tazir.
7. With regard to contention No, 1 above, it is apparent from the perusal of the record that the occurrence took place on 30th October, 1981 and the F. I. R. Was lodged on 1st November, 1981 at the Police Station. However, the delay in our opinion had properly been explained by the complainant who is father of Mst. Inayat Begum. `rukhsati' had taken place on 22nd October, 1981 and she was married to Shaukat a college student who resides in the same building in which complainant and his family reside. It has also come in evidence that Mst. Pasehat had come from Swat to attend the ceremony and stayed over with her parents after the function. Her son died after about 6 days after the marriage and she had taken the dead body to Mangora accompanied by Shad Muhammad his second wife and all the male members of the family. Shaukat and his mother had also gone with them. It has further come in evidence that the complainant had returned home on 1st November, 1981 and on learning about the facts immediately lodged F. I. R. On the very date.
Even otherwise the delay of some days in reporting of occurrence of this sort to the police is not uncommon in this Country as the honour of a married woman and that of her family and family of her husband is involved. In the instant case the husband was away alongwith his mother, as already stated, and even her father who at the time of the occurrence was not at home. On returning home lost no time in lodging the F. I. R. Similar view with regard to such delay was taken in Iqbal Shah v. The State , (a decision of this Court). Moreover, there is no question about identification of the appellant in this case, as although the victim was recovered from the custody of absconding accused Sher Muhammad, the appellant had been mentioned as the main accused. Moreover, there is nothing on the record that Shad Muhammad and the other P. Ws. Had any motive to falsely implicate the appellant and also the victim is a young girl recently married, and there is again nothing on the record suggesting that she had illicit relations with the appellant.
8. With regard to contention No, 2 set out above, the main arguments of Raja Abdul Rahim, the learned counsel for the appellant, is that with regard to the commission of offences of abduction1 and zina-bil-jabar there is only the evidence of Mst. Inayat Begum not supported by any other independent evidence. It is, however, observed that it is not the number of witnesses but quality and credibility of the evidence which is to be considered. In cases of zina there are generally hardly any witnesses other than the victim herself as it is very rare that such offences take place in view of others or even at a public place. In the instant case there is also no explanation on record worth noting why the victim should falsely implicate the appellant. The appellant no doubt stated in his statement under section 342, Cr. P. C. That the complainant had asked for the hand of his sister in marriage for his son but he had not agreed. Such a question when put to the complainant in coiss- examination was promptly disposed of by the complainant stating that his son is already married.
The aforesaid defence plea was hardly put to in the cross-examination of other prosecution witnesses. Moreover, it is difficult to believe that a young married woman would falsely allege rape just to implicate the appellant, as such allegation would damage her honour, that of her husband and their families.
9. With regard to the alleged abduction the testimony of Mst. Inayat 'Begum is fully corroborated by the testimony of her sister Sanjey Mala who is the natural witness being the inmate of the same house. She has explained that she had come to attend the marriage of her younger sister Mst.
Inayat Begum and had stayed over with her parents. After 8 days of the marriage a young son of her sister Pasehat had died and all male members of the family and the mother of Mst. Inayat Begum had gone with the dead body. Only Mst, Inayat Begum, the witness herself and her mother Mst. Zari an old ailing person were left in the house. This witness fully supported the evidence of Mst.
Inayat Begum about the appellant coming to their house and telling them that their father and his wife, mother of Mst. Inayat Begum, had met with an accident, Mst. Sanjey Mala has further explained that she herself had to stay back in the house because her mother Mst. Zari was ill and she had to look after her but Mst. Inayat Begum had gone with the appellant. This witness has also corroborated the prosecution case that Mst. Lnayat Begum was wearing gold ornaments at the time. The aforesaid evidence is of the two sisters is also supported by complainant Shad Muhammad who on return from Swat was informed of the full facts not only by his first wife Mst.
Zari hut also P. W. Sanjey Mala and who without any further loss of time reported the matter to the police. With regard to the charge of zina-biljabr against the appellant Mst. Inayat Begum who is the victim, has fully supported the prosecution case and has stated that the appellant committed zina-bil-jabr with her on the point of pistol. According to her it was in a room of a hotel at Peshawar that the appellant committed Zina against her wishes and he continued to commit zina-bil-jabr with her when he had confined her in the house of his elder brother Sher Muhammad in village Katlang. She has also explained that all the time she was under restraint as even when the appellant left the house some times, his brother kept watch over her. This part of her evidence is also of importance in coming to the conclusion about the offence committed in respect of gold ornaments which were taken from her by the absconding accused Sher Muhammad and the appellant. It was due to the number of witnesses able to give testimony about Zina that the offence was considered not to be one punishable with Hadd but with Tazir. We are of the view that on the reason for alleging enmity stated by the appellant, Mst. Inayat Begum, a young married woman, recently married before the incident would not have involved her honour and reputation in framing a false case against F the appellant and the same could be said of her father, complainant Shad Muhammad. There is, therefore, no reason for disbelieving the evidence of Mst. Inayat Begum with regard to the offence of zina-bil-jabr committed on several occasions by the appellant. The aforesaid evidence of Mst. Inayat Begum is also supported by the medical evidence and also the report of the Chemical Examiner. The aforesaid evidence by itself is no doubt not sufficient to connect the appellant with the crime as Mst. Inayat Begum is married woman and, therefore, the medical evidence and evidence of the Chemical Examiner about the semen being found in her G vagina would not be conclusive against the appellant. However, it certainly corroborates the version of Mst. Inayat Begum who was examined by Dr. Razia on 6th November, 1981 and who had remained away from her husband since 28th October, 1981. The learned counsel for the appellant has also alluded to the fact that according to A. S. I. Muhammad Sharif, the investigating officer, she had been recovered on 5th November, 1981 and he had sent her to the police station through a female constable of police and only produced her with examination on 6th November, 1981.
According to the learned counsel for the appellant the possibility of sexual intercourse by A. S. I.
Muhammad Sharif could not be overlooked. It may here be observed that no such question was put to Muhammad Sharif who appeared as a witness and the very fact that a female constable of police was sent with her for taking her to the police station belies the assertion. In any case the medical evidence fully supports and corroborates her version about appellant committing zina- bil-jabr with her. It may, however, be observed here that there is evidence of A. S. I. Muhammad Sharif that Mst. Inayat Begum was recovered and absconding accused Sher Muhammad elder brother of the appellant was arrested at Shahdara bus stop. If the matter of the alleged enmity is taken into account, it would have been easier to falsely implicate the absconding accused Sher Muhammad with committing zina-bil-jabr rather than the appellant who is his younger brother but Mst. Inayat Begum gave only version of the incident and made allegations against the aforesaid Sher Muhammad to the extent that he helped his brother in confining and restraining her inside his house at their village Katlang.
10. The learned counsel for the appellant has also attempted to show that the evidence of Mst.
Inayat Begum and her father Shad Muhammad contains contradictions and, therefore, it is not worthy of credit. With regard to the evidence of complainant it has been pointed out that he has stated in his examination-in-chief that he returned home on 1st November, 1981 but in his cross- examination he admitted that he had reached back from Swat on 30th October, 1981 at 6-00 p. m.
And had gone to report to the police at 7-00 p. m. That very day. A. S. I. Muhammad Sharif in his evidence has confirmed the fact that the complainant met him on 1st_ Novemher, 1981 at 7-00 p. m. And he recorded his complaint. Evidence of Investigating Officer, therefore, corroborates the statement of Shad Muhammad as given in his examination-in-chief. It is, therefore, evident that in the cross-examination when the suggestion was made about his coming back on 30th October, 1981 he probably disregarded the date inadvertently. We presume this from very circumstance that the delay in such cases in reporting occurrence of this sort to the police is not generally considered to be harmful to the prosecution and, therefore, there was no necessity of his mis-stating the date of his return.
11. Stress has also been laid on the fact that although in the F.I.R. The complainant mentioned that he was told that the girl was wearing ornaments of gold, he had in his deposition further added that she had also taken along some of her clothes. It would appear to be the defence plea that taking of clothes indicates deliberate elopement rather than abduction. However, since it is also the case of prosecution that girl was taken out of the house on the false pretext that her parents had been involved in an accident, the mere fact of her taking some of her clothes should be indicative of her thinking that looking after them in the hospital otherwise might take time, and it is also to be remembered that she was a newly-married bride. The fact if at all true about her taking some of her clothes is, therefore, not sufficient to raise presumption that she was a consenting party and had eloped with the appellant. Moreover, the very fact that it was initially mentioned in the F. I. R. That the girl was wearing ornaments of gold, the alleged improvement in the deposition of the complainant would not be of any help to the prosecution and is not, therefore, of any consequence.
12. With regard to evidence of Mst. Inayat Begum, the learned counsel for the appellant argued that if the incident of abduction took place on 30th January, 1981 at 11-00 a. m. As stated by her, the statement that they reached Peshawar before tbe 'Azan' for evening prayer, could not be considered to be a truthful statement. However, we understand that there is direct bus service between Lahore and Peshawar and it is possible to reach Peshawar within the time stated by Mst.
Inayat Begum. Her further statement that they left hotel at Peshawar at about 8-00 a. m. For going to Katlang would also appear to be unexceptionable. The further admission that she did not raise cries in the bus is explained by her by stating that the appellant who was armed with pistol sat with her in such a manner that she could feel the pistol all the time. It is true that the investigating authority did not secure the pistol from the possession of the appellant in this case but the further fact that he had been absconding and was incidently arrested by C. I. A. Police for an offence under the Arms Ordinance at Lahore would indicate that at least there is no reason for disbelieving the victim with regard to the appellant having a pistol while committing zina-bil-jabr and while taking her from place to place.
13. It is further argued on behalf of the appellant that it is usual for the victim to indicate the places where she was detained by the appellant but in the instant case the hotel and place of her detention in the village were not shown to the police by the victim. Omission of collecting all j the available evidence on the part of investigating agency cannot, however, be considered as a fault on the part of the witness since she was not concerned with the investigation and had made her statements as indicated.
14. With regard to contention No, 3, Mst. Inayat Begum in her deposition had given evidence about gold ornaments which she was wearing, which reads as under :- "On the next day he took me to his village Katlang. He kept me there for two three days in the house of his brother Sher Muhammad co-accused. There also he committed zina-bil-jabr with me.
Whenever Suleman-accused went out of the house his brother Sher Muhammad kept a watch over me. They persuaded me to marry Suleman-accused but I told them that I had already been married. Then both these accused took my golden ornaments weighing about 10 tolas. When I did not agree to marry Suleman accused then both of them took me to Lahore but on the way Suleman accused got down at Rawalpindi and stayed there."
15. It is, therefore, very clear that according to Mst. Inayat Begum she was under restraint and detention when the two brothers namely the appellant and absconding accused Sher Muhammad took from her, her golden ornaments after she had refused to be persuaded to marry the appellant. It is, therefore, apparent that the taking of the ornaments was not from the dwelling house of Shad Muhammad as at the time she left house was wearing the same. Nevertheless there appears evidence to the effect that the appellant had committed an offence. It may be stated here that the appellant has also been convicted under section 342, P. P. C. For keeping.Mst. Inayat Begum in illegal confinement and had been sentenced to undergo 6 months' R. I. On that charge.
This conviction is also based on the evidence on record specially of Mst. Inayat Begum which show that at the time she was deprived of her golden ornaments, she was wrongfully confined and restrained in the house of absconding accused Sher Muhammad and that golden ornaments are more than `nisab' as define in section 6 of the Offences against Property (Enforcement of Hudood)
Ordinance, 1979. The learned counsel for the appellant has argued that in the deposition of Mst.
Inayat Begum the words used are that they 'took away' her golden ornaments, therefore, there is no allegation of any forc used. However, section 15 of the Offence Against Property (Enforcemen of Hudood) Ordinance, 1979 defines haraabah as under :- "15. When any one or more persons, whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt, such person or persons are said t commit haraabah."
So that after wrongful restraint is caused before taking away propert of another, the offence committed is haraabah, which is punishable unde section 20 of the aforesaid Ordinance which prescribes punishment o haraabah liable to tuzir. Since the haraabah is not punishable as provide in section 17 and no such proof as is mentioned in section 7 of the afore-said Ordinance is available, section 20 provides that in such a case the person shall be awarded the punishment provided in Pakistan Penal Code for the offence of dacoity, robbery of extortion, as the case may be.
16. Section 382, P. P. C. Reads as under :- "382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft : whoever commits theft, having made preparation for causing death or hurt, or restraint or fear of death, or of hurt, or of restraint to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
17. Section 390, P. P. C. Which defines Robbery, provides as under :- "In all robbery there is either theft or extortion, when theft is robbery : Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint."
18. Since Mst. Inayat Begum was under wrongful restaint before the property, the golden ornaments, were taken, the offence committed by L the appellant was that of robbery which is punishable under section 392, P. P. C.
19. The further contention of the learned counsel for the appellant was about there being no proof of recovery of gold bar from P. W. Mukhtar which could have relevance to the charges of abduction and Zina against the appellant also appears to be misconcieved. It is true that P. W. Mukhtar, the Goldsmith, had identified the appellant as a person who had sold the ornaments to him. He has definitely stated as under :- "He is the man who had brought the ornaments to me and sold them to me. I paid Rs, 5,250 as price of those ornaments. After about 15 days after that police from Lahore came to my shop and took me to Police Station B-Division, Mardan and asked me if I had purchased any gold from the .Accused present in Court today. I told them that I had purchased ornaments weighing about three and a half tolas from him but the police said that I had purchased ornaments weighing nine tolas. I requested the police that I had purchased only three and a half tolas but they insisted and then I gave them golden bar weighing about nine tolas."
20. It is apparent from the cross-examination of this witness that in his statement recorded by the police under section 161, Cr. P. C. (Exh. D. C.) he had stated that the appellant had come with a golden bar weighing nine tolas which he purchased for Rs, 13,500 at the rate of Rs, 1,500 per tola.
Moreover, there is evidence of Investigating Officer A. S. I. Muhammad Sharif that the appellant had led him to the shop of Mukhtar known as `Kahkeshan Jewellers' on 9th December, 1981. Mukhtar had produced before him a gold bar which he took into possession after preparing memo. (Exh. P. D.).
The memo. (Exh. P. D.) which was about recovery of the gold and signed by the witnesses Amanullah son of Rafiullah Pathan resident of near City Railway Station, Peshawar and Muhammad Akram H. C. Of P. S. Ravi Road makes mention that the appellant took the police party and mashirs and pointed out Kahkeshan Jewellers, shop in Mardan. The aforesaid memo, mentions that he pointed out that he had sold melted gold of ornaments (Dulli) to Mukhtar, Goldsmith of Kahkeshan Jewellers, owner of the shop. The learned trial Judge in his judgment has referred to the controversy about gold bar secured, that since the memo. Prepared by the Investigating Officer and statement recorded by him make it clear that 'Dull? Of gold weighing 9 tolas had been produced by P. W. Mukhtar as the gold sold to him by the appellant, the improvement in the deposition by the Goldsmith was obviously an afterthought. In any case (P. W. 4) Amanullah has supported the prosecution that the appellant had taken the police to the shop in Mardan known as Kahkeshan Jewellers from where bar of gold weighing 9 tolas had been produced by Mukhtar P. W.
As gold sold to him by the appellant. The identification of the appellant by Mukhtar as a person who sold the golden Dulli to him was never challenged before the trial Court and there is nothing in the evidence on record to suggest why Goldsmith and mashir Amanullah were deposing against the appellant. The learned counsel for the appellant, however, considers the recovery as not legal and proper since one of the mashirs was a police official and the other mashir namely Amanullah was not a person belonging to the locality. The learned trial Judge has pointed out that in his cross-examination when confronted with his statement under section 161, Cr. P. C. Witness Mukhtar did state that the appellant had sold to him gold bar weighing about 9 tolas. This admission coupled with the evidence of Investigating Officer A. S J. Muhammad Sharif who recorded the statement of P. W. Mukhtar makes it clear that the appellant had sold the bar of gold weighing 9 tolas to him which he had produced before the police and which had been recovered. In the instant case the important factual position is about the appellant selling the gold bar of 9 tolas to the Goldsmith and the evidence of P. Ws. Amanullah and Mukhtar fully corroborates the facts that the appellant had sold the same. This fact also corroborates the version of Mst. Inayat Begum that ornaments were taken by the appellant and his brother while she was under wrongful confinement as their village Katlang.
21. The contention with regard to fixed sentence of imprisonment for life under section 11 of the Ordinance being too severe to be imposed as Tazir, it is apparent has been raised because the learned trial Judge when convicting the appellant under section 11 aforesaid had sentenced him to undergo R I. For 10 years, to suffer whipping numbering 10 stripes and to pay a fine of Rs, 10,000 or in default of such payment to suffer further R. I. For two years. The learned Judge had done so overlooking the fact that the aforesaid section prescribes fixed punishment of imprisonment for life and whipping not exceeding 30 stripes and also liability to pay fine. The trial Judge, therefore, had no discretion to award a lesser punishment. It was under the circumstances stated that a notice for enhancement of sentence was served upon the appellant.
22. It is also apparent that the finding that the appellant had committed the offence punishable under section 11 of the Ordinance is based on facts which appear in evidence on the record which clearly show that the appellant abducted Mst. Inayat Begum. The expression 'abduct' has not been defined in the Ordinance but clause (e) of section 2 of the Ordinance which defines `Tazie as meaning any punishment other than Hadd, provides that all other terms and expressions not defined in the Ordinance shall have meaning as in the Pakistan Penal Code and section 362, of P. P.
C. Which defines abduction reads as under :- "362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
23. In the instant case the appellant induced Mst. Inayat Begum to go with him from the house of her father through deceitful means, by stating that her parents had met with an accident and her mother was calling her. Whereas in the instant case the woman is abducted with intention to subject her to forcible rape, the accused was liable to be punished with severe sentences as provided by section 11 of the Ordinance and the learned Judge, therefore, had no discretion in the matter of reducing the fixed punishment as prescribed under that section. It is observed that the fixed sentence of 'imprisonment for life' under the section is in accordance with the consideration of gravity of the offence involving kidnapping and abduction of a woman. The same fixed punishment of 'imprisonment for life' has also been prescribed under sections 13 and 14 of the Ordinance for selling and buying a woman for purposes of prostitution etc. This is in distinguish to the taking away or enticement of a woman with criminal intent which has been treated less severely as there is some element of consent on the part of the woman.
24. The contention that punishment by `Tazie should not be fixed but should be left to the discretion of the Court of Qazi, is misconceived as it amounts to an objection against the law.
25. Under the circumstances stated the conviction of the appellant under section 11 of the Offence of Zina (Enforcement of Hudood),Ordinance, 1979, is maintained but the sentence of ten years' R. I.
Is enhanced to imprisonment for life, whipping numbering 20 stripes and to pay a fine of Rs, 10,000 or in default to suffer further R. I. For 2 years. The conviction under section 10 (3) of the Ordinance and sentence of 10 years' R. I. And whipping numbering 15 stripes is maintained. The conviction under section 380, P. P. C. Is converted to conviction under section 20 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979, read with section 392, P. P. C. And he is sentenced to 5 years' R. I. And to pay a fine of Rs, 3,000 or in default to suffer further six months' R. I.
The conviction under section 342, P. P. C. And sentence is maintained. The order of the trial Court with regard to all the sentences to run concurrently and execution of sentence of whipping and also with regard to case property shall remain effective.
26. With the aforementioned modifications, the appeal is dismissed. PLD 1981 P SC 284