' Muhammad Rafiq and his mother Mst. Sadiq Jan, were tried under section 363/366/376, P.P.C. By the learned Magistrate Section 30, Islamabad, who vide his judgment, dated 30-9-1971, convicted and sentenced them as under:--- Muhammad Rafiq.
' Five years' R.I. On three counts under section 363/366/376, P.P.C. And a fine of Rs,50 on each count, or in default three months' R.I. On each count plus 10 lashes. The substantive sentences were ordered to run concurrently. Mst. Sadiq Jan.
' Five years' R.I. Under section 363, P.P.C. And a fine of Rs,50 or in default three months' R.I.
' The convicts have filed the present appeal.
2. The prosecution case, briefly stated, is that in December, 1968, Muhammad Sultan P.W. Used to live in Nia Mohallah, Rawalpindi, along with his daughter Mst. Shafqat and other family me fibers.
Mst. Sadiq Jan appellant was on visiting terms in the house of Muhammad Sultan. The appellants during those days used to reside in the lower portion of the house of Muhammad Suleman P.W. On the day of occurrence, Mst. Shafqat P.W. Was all alone in the house. In the absence of other family members of Muhammad Suleman, P.W., Mst. Sadiq Jan appellant called Mst. Shafqat P.W. To her house. She was offered a cup of tea by her, as a result of which she started feeling giddy. The appellants then on the pretext of getting medicine for her took her in a taxi to Hazro, where she was kept in the house of Khan Bahadur for about two days. From there she was taken to Nowshera and kept there for about 2/2-1/2 months. Muhammad Rafiq appellant then used to commit rape on her.
It is alleged that during this period, Muhammad Rafique married her and also obtained her affidavit and got it attested from a Magistrate. She was then brought to Rawalpindi where she was kept in the quarters attached to the Bungalow of one Col. Nazar. Mst. Shafqat managed to inform her parents about this occurrence and the police recovered her. The present case was registered after about 2/3 months of the occurrence. It is also alleged that Mst. Shafqat was born on 18th May, 1954, at Arifwala, District Sahiwal.
3. Muhammad Rafiq appellant was charged under section 363/366/376, P.P.C. Whereas his mother was charged under section 363, P.P.C. The appellants pleaded not guilty and produced five witnesses in their defence. Muhammad Rafiq in his statement under section 342, Cr.P.C. Denied the prosecution allegations and stated that Mst. Shafqat had come to him of her own accord at Nowshera and requested him to marry her. He then married her. He further stated that the parents of Mst. Shafqat used to accept money from him. Mst. Sadiq Jan in her statement also denied the prosecution allegations and stated that she had been implicated on account of her relationship with Muhammad Rafiq.
4. The prosecution in support of its case examined six witnesses, whereas Irshad Muhammad Vaccinator, Municipal Committee Arifwala was summoned as a Court-witness.
5. On 21-2-1989, neither the appellants nor their counsel appeared. The bail of Muhammad Rafiq appellant was cancelled and non-boilable warrants for his arrest were ordered to be issued.
However, boilable warrants were issued against Mst. Sadiq Jan appellant and the case was adjourned to 2-4-1989. On 2-44989, on account of non-appearance of the appellants, the appeal was adjourned to 30-4-1989. The case was fixed before me on 16-5-1989. On that date, none appeared and non-boilable warrants were ordered to be issued against them with direction to the S.H.O., Police Station 'EY Division Rawalpindi, to execute the warrants. On the next date of hearing viz. 28-6-1989, the Inspector appeared and stated that the appellants were not residing at the address given in the memo. Of appeal. I, therefore, decided to hear the appeal in the absence of the appellants and directed the Law Officer to prepare the case from both angles and highlight the points which favor the defence.
6. Today, the learned counsel for the State was directed to read the whole file and I have gone through the evidence with his assistance.
' The learned counsel for the State has submitted that the only point which favors the appellants and which was urged before the trial Court is that Muhammad Rafique appellant entered into marriage with Mst. Shafqat with her consent at Nowshera, as according to the statement of Muhammad Rafique, her parents were going to marry her against her wishes to someone else and that Muhammad Rafique has produced defence witnesses to prove the factum of marriage. He has relied upon the statement of Mirza Abdul Hafeez, Advocate Nowshera (D.W.1), who deposed that the affidavit Exh.D.B. Was attested by him on the identification of Diwan Qazim Ali Khan. He further deposed that he read the contents of the affidavit to Mst. Shafqat who put her signatures Exh.D.B./1, after admitting it to be correct. Pir Muhammad Zaman D.W.2, petition-writer deposed that he had written the affidavit Exh.D.B. On the dictation of Mst. Shafqat on 11-11-1968. Muhammad Kazim Ali (D.W.3), deposed that he signed (Exh.D.B./3) on the affidavit as a witness. Haji Fazal Rehman (D.W.4) deposed that he was Imam Masjid of Chunigi Mohallah and on 19-11-1968, he solemnized the marriage of Muhammad Rafiq with Mst. Shafqat at Church Road, Nowshera. The dower was Rs,1,000 and Rs,60 as maintenance in case of estrangement. He proved Nikahnama Exh.DA. And also admitted his signature on it as Exh.D.A./1. D.W.5 Muzammal Shah deposed that he was the witness of the marriage and proved the Nikahnama Exh.DA.
' On the face of the aforesaid documentary evidence the learned counsel for the State submitted that the girl was a consenting party, hence the appellants have not committed any offence.
7. After going through the whole record I find that in the present case, the point which needs consideration is whether the girl was a minor or major at the time of occurrence. In this respect the prosecution has produced oral as well as documentary evidence to prove the age of Mst. Shafqat P.W. The prosecution has relied on Exh.P.B. Which is a birth certificate of Mst. Shafqat. According to this document Mst. Shafqat was born on 18-5-1954 and this document was proved through the mouth of Irshad Muhammad (C.W.1) Vaccinator, Municipal Committee, Arifwala, who appeared alongwith the original record of the Committee. He deposed that according to the entry in the Birth Register, the date of birth of Mst. Shafqat was 18-5-1954 and this has been recorded at Serial No, 128 of that register. Oral evidence with respect to the age of Mst. Shafqat was given by Muhammad Sultan (P.W.2) and Mst. Shafqat P.W.1. She has narrated that she was forcibly taken by the appellant Muhammad Rafique with the connivance of his mother Mst. Sadiq Jan and thereafter Muhammad Rafiq committed rape with her against her consent.
8. The sole point for the disposal of this appeal is whether Mst. Shafqat at the time of occurrence, was minor or major. There is no dispute with respect to the age of Mst. Shafqat which has been proved through the evidence of Irshad Muhammad (C.W.1) Vaccinator, Municipal Committee, Arifwala as well as the certificate Exh.P.B., according to which Mst. Shafqat was born on 18-5-1954.
Hence her age at the time of occurrence was 14 years and 7 months. The defence has relied on the evidence of Akhtar Ali, H.C. Of Civil Hospital, Nowshera. He proved the certificate Exh.D.C. Of lady doctor Sakhawat Nasreen, who on physical examination of Mst. Shafqat opined her age between 17/18 years, but no X-Ray was taken by the lady doctor to arrive at the conclusion of her opinion. I agree with the trial Court that in the absence of opinion of the Radiologist, by mere physical examination, the lady doctor could not ascertain the age of the girl, which as been conclusively proved through the mouth of Irshad Muhammad C.W.11 and the certificate Exh.P.B. The girl at the time of alleged occurrence was minor, hence the offence of kidnapping is proved.
9. The next point which could give benefit to Muhammad Rafique appellant is that there might be bona fide mistake of fact with respect to the age of the girl. In order to appreciate this legal proposition, it would be useful to reproduce section 6, P.P.C. Which deals with general explanations.
It reads:- "6. Throughout this Code every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled 'General Exceptions', though those exceptions are not repeated in such definition, penal provision or illustration."
' The other relevant provision is section 76 of the Pakistan Penal Code, which is also reproduced here fir facility of reference:-- "Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it."
The combined reading of both these sections, would demonstrate that mistake of fact could be a defence if it is in good faith and one was bound by the law to do it. In the present case, Muhammad Rafique appellant was not bound by the law to abduct or kidnap Mst. Shafqat. The question of bona fide mistake as a defence came up for consideration in some cases of like nature, particularly in Prem Narain v. Emperor AIR 1929 All. 82, where Suleman J., rejected the defence of bona fide mistake of fact with the following observations:-- "There is no reason to suppose that the accused believed that she was over 16. Even if he did, that would be no valid defence to the charge. If it now turns out that she was under 16 years of age, the accused, even if he honestly believed her to be over 16, cannot protect himself as he must be deemed to have acted at his peril."
Respectfully following the law laid down above, I find that the trial Court wasi c justified in convicting the appellants under the aforesaid sections.
10. I have given my anxious consideration to the quantum of sentence which should be imposed upon the appellants. I find no justification to reduce the sentence of imprisonment of Muhammad Rafique appellant. However, at this stage, it would not be in the interest of justice to maintain the sentence of lashes imposed upon him, because when the trial Court imposed the said sentence of D lashes i,e, on 30-9-1971, Muhammad Rafique appellant was 23 years of age and now it would not be proper to inflict the sentence of lashes after the lapse of eighteen years.
11. The upshot of the above discussion is that the conviction and sentence of imprisonment of Muhammad Rafique appellant under section 363/366/376, P.P.C. Is maintained and so is the sentence of fine, but the sentence of lashes is remitted. The conviction of Mst. Sadiq Jan under section 363, P.P.C. Is E maintained, but in view of her sex, her sentence is reduced to three years' R.I.
The sentence of fine, is however, maintained.
' The appellants are on bail. The District Magistrate shall take necessary steps for their arrest and committal to jail to serve out the remaining portion of their sentence.