FAKHRUDDIN H. SHAIKH, J.---Appellant Muhammad Riaz and his brother co-accused Haq Nawaz, were tried by Malik Khizer Hayat, Additional Sessions Judge, Layyah for offences under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for having abducted Mst.
Balqees Bibi daughter of Ghulam Hussain, complainant, and having committed Zina-bil-Jabr upon her. By his judgment, dated 17-2-1985, the learned Judge acquitted co-accused Haq Nawaz but convicted Muhammad Riaz of offence under section 16 of the above Ordinance and sentenced him to suffer R.I. For 4 years, whipping numbering 10 stripes and to pay a fine of Rs.20,000 or in default of payment of fine to further undergo R.I. For two years. Muhammad Riaz has challenged his conviction and sentence by Criminal Appeal No. 67/1, of 1985. Complainant Ghulam Hussain has filed a Revision Petition No. 35/1, of 1985 praying that the appellant be convicted of offence under sections 10 and 11 of the above Ordinance and his sentence may be enhanced. We have heard the appeal and the revision petition together which are being disposed of by this Judgment.
2. Mst. Balqees Bibi a girl aged 13/15 years, is daughter of complainant Ghulam Hussain. She used to live with her father and mother Mst. Maqbool Bibi in Chak No. 264/T.D.A. Tehsil and District Leiah.
Appellant Muhammad Riaz and his brother Haq Nawaz, both sons of Saleh Muhammad, resided in the neighbourhood of Ghulam Hussain. The case of prosecution is that on 20th July, 1984 Mst.
Hussain Bibi, sister of the appellant, went to the house of the complainant and presuaded Mst.
Balqees Bibi to go to her house to see ornaments which have been purchased by her. Mgt. Balqees Bibi accompanied Mst. Hussain Bibi to the house of the appellant. It is alleged that both, the appellant and co-accused Haq Nawaz, were already in their house and told Mst. Balqees Bibi that her father has met with an accident at Bhakkar and has wanted her to go there immediately. Mst.
Balqees replied that she would inform her mother Mst. Maqbool. Bibi before accompanying them to Bhakkar. It is further alleged that the appellant told Mst. Balqees that her father had instructed them not to disclose this fact to Mst. Maqbool Bibi.
3. It is further alleged that the appellant and co-accused Haq Nawaz took Mst. Balqees to various places. Haq Nawaz left in the way leaving the appellant with Mst. Balqees. Instead of taking her to Bhakkar, the appellant took her to Qaziabad. She tried to raise cries, but the appellant took out a knife and threatened her to keep quiet. She was thus kept by the appellant for 10/12 days and during this period, according to her version she was also subjected to rape by him. After 10/12 days (on 1-8-1984) Riaz took her to Fatehpur, within the jurisdiction of Chawk Azam Police Post. As soon as the appellant and Mst. Balqees got down from the bus at Fatehpur, complainant Ghulam Hussain, who also happened to be there with some policemen, caught hold of appellant Riaz and took him alongwith Mst. Balqees to Police Post Chawk Azam, where Mr. Muhammad Raza Shah, S.I.
Arrested the appellant and recorded statement of Mst. Balqees. She was also sent for medical examination to Muzaffargarh where Lady Doctor Mrs. Shahin Ali Khan had examined her. However, earlier complainant Ghulam Hussain had already lodged report at Police Post Chawk Azam on 29- 7-1984. His complaint was recorded by Mr. Muhammad Raza Shah, S.I. Incharge of the Police Post Chawk Azam. He had sent the complaint to Police Station Leiah, where Mulazim Hussain, H.C. Had recorded the formal F.I.R.
4. Mr. Muhammad Raza Shah, had conducted the investigation of the case. He recorded statements of Mst. Maqbool Bibi (P.W.4), Khan Muhammad (P.W. 5) and arrested co-accused Haq Nawaz later. After completing the investigation the case was sent up far trial.
5. The appellant was charged with offences under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood), Ordinance, 1979. He pleaded not guilty.
6. The main witness in this case is Mst. Balqees (P.W. 2), who has given her age as 13 years. She has fully supported the story as given above and has further stated that she could not raise cries for help of anyone because the appellant had threatened her to kill her with knife. She has also stated that during 10/12 days she was with the appellant, he had been subjecting her to sexual intercourse forcibly.
7. So far as the charges of abduction and sexual intercourse are concerned, there is evidence of P.W. 1 Dr. Shahin Ali Khan, W.M.O., Muzaffargarh, who had medically examined Mst. Balqees on 1-8- 1984 i.e. After about 11 days of the incident. She had found some injuries on the body of Mst. Balqees, but it is not necessary to refer to them, because it is not the case of Mst. Balqees that she was given beating by anyone. Her pubic hairs were found shaved, hymen was torn and vaginal macosa was not very much elastic. Two vaginal swabs were also taken and sent in sealed bottles to the police for being taken to the Chemical Examiner for detection of semen. The report of the Chemical Examiner is Exh. P.D., according to which the swabs were stained with semen. She has further stated that the girl appeared to be aged 15.
8. The other witness is complainant Ghulam Hussain (P.W. 3), who has deposed that her daughter Mst. Balqees is aged 13 years and that on the date of the incident, when he returned in the evening, he was informed by his were that Mst. Balqees had gone with Mst. Hussain Bibi, sister of the appellant, and had not returned. The complainant went to the house of the appellant and made enquiries from Mst. Hussain Bibi, who told him that Mst. Balqees had already gone away. Ghulam Hussain started searching for his daughter and came across Khan Muhammad and Muhammad Nawaz, who told him that they had seen Mst. Balqees alongwith appellant Riaz and his brother Haq Nawaz boarding a bus at Chawk Azam. The complainant, on receiving this information, went to Saleh Muhammad, the father of the appellant, and also approached respectable persons to persuade Saleh Muhammad to return his daughter. The complainant further stated that he failed to get his daughter restored. Therefore, he went to Police Post Chawk Azam and lodged report on 29-7-1984. The complainant has further stated that after a few days of the registration of the case, he found his daughter and appellant Riaz getting down from a bus at Fatehpur. He caught hold of Riaz with the aid of the police and took him to Police Post Chawk Azam and produced him before Mr. Muhammad Raza Shah, S.I. Chawk Azam.
9. The next witness is P.W. 4, Mst. Maqbool Bibi, mother of Mat. Balqees, who has simply stated that Mst. Hussain Bibi, sister of the appellant, had come to her house and taken away Mst. Balqees to show her ornaments and that she did not return. She, on return of her husband Ghulam Hussain in the evening, told him that Mst. Balqees had gone with the sister of the appellant and had not returned. She has also given the age of Mat. Balqees as 13 years.
10. Khan Muhammad (P.W. 5) has stated that he and Muhammad Nawaz' had gone to Chawk Azam for shopping and that they had seen appellant Riaz, his brother Haq Nawaz and Mst. Balqees boarding a bus at Ada Qaziabad. He further stated that he had informed later to Ghulam Hussain, on his enquiry, that Mst. Balqees was seen with the appellant and his brother boarding a bus at Ada Qaziabad.
11. P.W. 6 Mr. Muhammad Raza Shah, S.I. Incharge of Police Post, Chawk Azam, who had arrested appellant Riaz on 1-8-1984 and on the same day produced Mst. Balqees for medical examination before W.M.O. Muzaffargarh namely Lady Doctor Mrs. Shahin. P.W. 7 Mulazim Hussain, H.C. , Police Station Leiah had simply recorded the F. I. R.
12. In his statement under section 342, Cr.P.C. Appellant Riaz has denied that he had abducted or enticed away Mst. Balqees or subjected her to Zina. He further submitted a written statement containing his defence plea, which has been brought on the record as Exh. D.B. And is to the following effect:-- He has also produced two defence witnesses namely Muhammad Nawaz (D.W. 1) and Iftikhar Hussain (D.W. 2) to prove that Mst. Balqees was not a minor. D.W. 1 Muhammad Nawaz is Secretary of Union Council Noshehrah Thal Jandi who has stated that birth entry Exh., P.C., produced by the prosecution from the register of births, contains some erasions. It may be stated that this extract (Exh. P.C.) was produced by the complainant to show that Mst. Balqees was born on 26-9-1971.
According to Exh. P.C. The victim of this crime shall be 13 years at the time of the incident. D.W. 2 Iftikhar Hussain is the Headmaster of Government Primary School Chak No. 264/T.D.A., who had brought register of admissions showing that Mst. Balqees daughter of Ghulam Hussain was admitted in his school on 10-5-1973 and was discharged on 30-6-1976 and that her date of birth was entered as 10-6-1967. In cross-examination he stated that he did not make these entries. He further stated that he had prepared the register of admission from the old register which contains the entries regarding birth etc. He had not produced the original register because its pages were torn. His evidence is, therefore, of no avail to the defence.
13. The learned trial Court has held that in any case Mat. Balqees is proved to be less than 16 years of age at the time of the incident. Even Lady Doctor Mrs. Shahin has deposed that Mst. Balqees appeared to be aged about 15 years. Her father Ghulam Hussain and her mother Mst. Maqbool Bibi have also deposed that she was aged 13 years at the time of the incident. Even if the entries in the birth register and in the school register, which are both doubtful and had been disbelieved by the trial Court, are kept out of consideration, it is clear from the record that she was less than the 16 years at the time of the incident. It is also the finding of the learned trial Court, who has categorically held that according to section 361, P.P.C. Mst. Balqees was a minor.
14. However, in spite of the above finding, the learned trial Court has held that as the prosecutrix had started menstruation before the incident, therefore, she was adult. This finding of the learned trial Court is quite inconsistent with his earlier finding that according to section 361, P.P.C. She was minor. Again the learned trial Court has held that Mst. Balqees was a willing party and accomplice to the enticement and that there was no proof of Zina. On this finding he convicted the appellant of offence under section 16 of the said Ordinance.
15. It appears that the learned Judge of the trial Court has not properly appreciated the terms 'minor' and adult as they appear in section 361, P.P.C. And section 2(a) of Ordinance VII of 1979, respectively. In the Ordinance the word 'minor' does not appear anywhere. For the purpose of the Ordinance a person is treated either as adult or not adult. Now a person may be adult according to the said Ordinance, still he/she may be minor according to section 361, P.P.C. Which is reproduced hereunder:-- "361. Kidnapping from guardianship. Whoever takes or entices any minor under fourteen years of age, if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
The term 'minor' as it appears in section 361, P.P.C. Should be considered in juxtaposition with term 'adult' which is defined in section 2(a) of the said Ordinance as under:- "2(a) "adult" means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years or has attained puberty."
Thus, a girl who has attained puberty may be treated as adult under the Ordinance of 1979, but if she is less than 16 years of age she will be minor according to section 361, P.P.C.
16. In the present case it is established from the evidence of P.Ws. Ghulam Hussain and Mst.
Maqbool Bibi that their daughter Mst. Balqees was aged .13 years. They are supported by P.W. 1 Dr. Shahin who stated that the girl appeared to be aged about 15 years. There has been no cross- examination of these witnesses on this point. Hence it B was rightly concluded by the trial Court that the victim was a minor for the purpose of section 361, P.P.C. On this finding the Court should have convicted the appellant for offence under section 363, P.P.C. Instead of an offence under section 16 of the Ordinance VII of 1979. In view of these facts, the act of the appellant in taking her away shall amount to kidnapping, irrespective of the consent of the victim.
17. It has been conceded by Mr. Khudadad Khan Barki, the learned counsel for the appellant, that there is no enmity between the parties. There was no reason for Mst. Balqees to have implicated the appellant in a false case. She had no enmity with Riaz appellant. The record shows that, taking advantage of the tender age of Mst. Balqees, the appellant had taken her away from his house and kept her for 10/12 days and during this period, according to Mst. Balqees, he subjected her to rape also. However, so far as the offence under section 363, P.P.C. Is concerned, it is made out against the appellant beyond any reasonable doubt.
18. Since the appellant has been convicted of offence under section 16 of the said Ordinance, hence the conviction can be altered to section In 363, P.P.C., which is lesser offence, as it does not provide any punishment of whipping. The other sentence under both the sections is the same. We therefore, alter the conviction of the appellant for offence under section 16 of the said Ordinance, to one under section 363, P.P.C. And maintain the sentence of imprisonment and fine as recorded by the trial Court, but set aside the sentence of whipping, which cannot be imposed according to the relevant provisions of the Penal Code.
19. So far as the revision petition of Ghulam Hussain for enhancement of sentence is concerned, we feel that the sentence already imposed appears to be quite adequate in view of the period of detention already suffered by the appellant during the trial, which period shall not be adjusted towards the substantive sentence. The appeal of Riaz, is dismissed and so is the revision petition filed by Ghulam Hussain.