TANZIL-UR-RAHMAN, CJ.--- This jail criminal appeal arises out of Judgment dated 9-9-1991 passed by the learned IInd Additional Sessions Judge, Karachi (South), in Criminal Case No.453 of 1986 (F.I.R. No.28/86 of P.S. Mahmoodabad Karachi) whereby he convicted the appellant under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (hereinafter referred to as `the said Ordinance') and sentenced him under section 11 of the said Ordinance for life imprisonment and fine of Rs.5,000, in default to undergo further R.I., for one year and whipping numbering thirty stripes. He also sentenced the appellant under section 10(3) of the said Ordinance for five years' R.I., and thirty stripes. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C
2. The facts of the case, briefly stated, are that on 21-1-1986 complainant 1uhammad Mahmood lodged the F.I.R. At P.S. Mahmoodabad to the effect that his daughter Mst. Farzana alias Kali aged about 14-15 years on 15-1-1986 left his house at about 8-00 p.m., saying that she was going to see television in the neighbouring house and did not return. On enquiry, he came to know that his daughter has been kidnapped by one Muhammad Akhtar with the help of the wife of his brother Muhammad Aqleem, who have now shifted to unknown place.
3. The F.I.R. Was recorded by S.I. Abdul Hameed and subsequently given to S.I. Muhammad Latif for investigation on 15-3-1986. S.1. Muhammad Latif verified the investigation carried out by S.I. Abdul Hameed. On 5-6-1986 P.W. Hazrat Shah (the next door neighbour, in whose house the prosecutrix was alleged to have gone to see television) alongwith complainant produced Mst. Farzana at P.S. Mahmoodabad. S.I. Muhammad Latif recorded her statement under section 161, Cr.P.C. And got her medically examined. He also got her statement recorded under section 164, Cr.P.C. Before the 1st Class Magistrate. On 31-8-1986 S.I. Muhammad Latif arrested the appellant Muhammad Salim on the pointation of the complainant. He got him medically examined and challaned him showing Mst. Nasiba (with whose help she was ' alleged to have been abducted) as absconder, who was later on declared as proclaimed offender on 20-1-1988 and the case was ordered to proceed against the present appellant. Charge for the offence punishable under sections 11 and 10(3) of the said Ordinance was framed against the appellant to which he pleaded not guilty.
4. The prosecution in support of its case examined in all ten witnesses. P.W.1 Hazrat Shah, is the next door neighbour and an eye-witness to the recovery of prosecutrix. P.W.2 Muhammad Mahmood is the complainant and the father of the prosecutrix. P.W.3 Mst. Farzana is the prosecutrix who was alleged to have been abducted. P.W.4 Mst. Shamim Bano is the mother of the prosecutrix. P.W.5 Muhammad Afzal is the Mashir of the arrest of the appellant. P.W.6 Hamid Ahmad is S.I., who recorded the F.I.R. P.W.7 Dr. Asghar Ali Baloch physically examined the prosecutrix and found her age to be between 15-16 years. P.W.8 Dr. Liaquat All carried out potency test of the appellant and found him potent. P.W.9 Muhammad Latif is the S.I. Of P.S. Mahmoodabad and Investigating Officer.
P.W.10 Iqbal Ahmad is a clerk from the Police Surgeon Office who testified the signature and writing of Lady Dr. Mahmooda Badruddin on the medical certificate who had examined the prosecutrix and given her opinion that she was not virgo intacta and was habitual to sexual intercourse and pregnant for about 2/3 months.
5. The appellant recorded his statement under section 342, Cr.P.C. And also, examined himself under section 340(2), Cr.P.C., wherein innocence was pleaded by him. He, however, examined no witness in defence.
6. Muhammad Sharif Khattak, learned counsel for the appellant appointed by this Court, raised the following Pleas:--
(i) There is a delay of about seven days in lodging the F.I.R.;
(ii) The prosecutrix was not recovered from the possession or custody of the appellant;
(iii) The statement of the prosecutrix before the Court and under section 164, Cr.P.C. Are self- contradictory;
(iv) The finding of the learned trial Judge that the prosecutrix was less than 16 years of age is wrong;
(v) No offence under section 11 has been brought home. At the most, it may be a case falling under section 16 of the said Ordinance; and
(vi) It is not a case of rape, the case at the most may fall under section 10(2) of the said Ordinance.
7. As regards the first plea, there is undoubtedly a delay of seven days. The occurrence took place on 15-1-1980 and the report was lodged on 22-1-1986, but in such circumstances where the honour, of the family is involved, this delay is not material and the case should not fall flat on that ground.
8. As regards the recovery of the prosecutrix, sufficient material has come on record that the prosecutrix was enticed away and taken by Muhammad Saleem the appellant, after she was coming out at about 8/9-00 p.m. On 15-1-1986 and on the very night she was taken to Rawalpindi by train where she lived with the appellant for several months. The prosecutrix has clearly stated in her statement before the learned Magistrate under section 164, Cr.P.C. As well as in the Court that she was raped three times before the alleged Nikah was performed. The letters produced and exhibited leave no room for doubt that the appellant had taken away the prosecutrix and detained her there at Rawalpindi. This fact was located by P.W.1 Hazrat Shah, who had himself gone to Rawalpindi in search of the appellant and the prosecutrix as he was being harassed by Mahmoodabad police since the prosecutrix had gone to his house, as alleged, to see the television there and was allegedly kidnapped by the appellant the very night. The telegrams sent to the complainant from Rawalpindi by Hazrat Shah asking the complainant to come with the police, throw sufficient light on the point of living of the prosecutrix with the appellant and her recovery from the house there by Hazrat Shah. It appears that Hazrat Shah had prevailed upon the appellant, as is evident from the several letters and telegrams Exhs.33, 34, 34-A, 34-B, 34-C, 34-D alongwith six postal envelopes received at Karachi and one reply envelope stating the address of the appellant meant for sending reply to him. The contents of these letters coupled with the statement of the prosecutrix and the medical report clearly manifest that the prosecutrix was in the custody and possession of the appellant, who had detained her with him and was recovered from his house at Rawalpindi and brought by Hazrat Shah P.W.1, after giving him a word that the prosecutrix will be sent back afterwards to Rawalpindi.
9. There seem to be no material contradictions between the statements of the prosecutrix made by her before the learned trial Court and the learned 1st Class Magistrate under section 164, Cr.P.C. In fact, no questions were put to her while she made her statement in the Court. No attempt was made to show the contradictions, if any. She was, however, cross-examined at length to show that she went out of the house, gone to Rawalpindi and staved there with her free will and choice. The relevant portion reads as under:-- "It is not a fact that the accused *did not get me seated in the taxi against my wishes, allegedly: It is a fact that I did neither raise alarm or cries in the street when I was being allegedly seated forcibly by the accused nor I raised cries in the taxi nor I raised alarm at Mahajir Camp. I did not raise cries from Mahajir Camp to Railway Station due to fear. I did rat raise any cries or alarm at the platform of the Railway Station to attract the persons available on the railway station at Karachi. I did not raise cries during travelling into train from Karachi to Pindi. It is a fact that I did not raise cries or alarm at any place from the street of my house till the house at Rawalpindi where I was kept for about 8-9 months. The house in which I was kept against my wishes his Bhanja, Bhatija and married Bhabi and Bhai in the said house. I did not narrate the facts to the inmates of the said house at Rawalpindi but his brother on knowing the facts from the accused expressed to the accused that he should take away from his house if he has abducted me from my parents' house.
But the accused did not go out (sic) from his house."
Earlier she deposed in the examination-in-chief that:-- "The accused M. Saleem forcibly subjected me to sexual intercourse and committed Zina in the house at Rawalpindi. He kept me forcibly there at Rawalpindi for 7-8 months and used to commit forcible Zina upon me. After 7-8 months P.W. Hazrat Shah reached Rawalpindi and found out me there and took me from the house of M. Salim to Peshawar in his house with the grandmother
(Dadi) of Hazrat Shah. I was behaved very properly at Peshawar and nobody committed any offence upon me. Then after 2-3 days I came from Peshawar with Hazrat Shah and then police station. I narrated the facts of the incident to my father Muhammad Mahmood, Shamim Bano, Anwar and others."
10. As regards the submission of the learned counsel that the finding of the learned trial Judge that the age of the girl was less than 16 years makes no difference inasmuch as she has been proved on record to have attained puberty.
11. For the facts and reasons discussed above, the conviction under section 11 of the said Ordinance is altered to section 16 of the said Ordinance and so the conviction under section 10(3) of the said Ordinance is altered to IF section 10(2) of the said Ordinance.
12. The appellant is punished with the sentence of imprisonment for seven years' R.I. Under section 16 of the said Ordinance with fifteen stripes and a fine of rupees five thousand, in default to undergo further R.I. For one year. He is also sentenced to five years' R.I. Under section 10(2) of the said Ordinance G with fifteen stripes and a fine of rupees five thousand, in default to undergo R.I., for one year.
13. The substantive sentences of imprisonment will run concurrently. The appellant shall also be entitled to the benefit as provided under section 382-B, Cr.P.C.