' MAULANA MUHAMMAD TAQI USMANI, J.---The appellant was convicted by the Additional Sessions Judge, Mardan, under section 326, P.P.C. And was sentenced to 10 years' R.I. And a fine of Rs.5,000 or in default 6 months' simple imprisonment. He was also convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and was sentenced to life imprisonment and 20 stripes and a fine of Rs.5,000 or six months' simple Imprisonment in case of default. The Federal Shariat Court vide its judgment dated 22-1-1991 dismissed his appeal. However the benefit of section 382-B, Cr.P.C. Was extended to him. Now he has preferred this appeal through leave of this Court, against the aforesaid judgment of the Federal Shariat Court.
2. The allegation against the appellant is that on 4-4-1987 he after inflicting grievous hurt to his cousin Ashraf Khan abducted his wife Mst. Bano from the house of her husband. The report to this effect was lodged by Zewar Khan, brother of the said Ashraf Khan in the Police Station Takhat Bhai, District Mardan vide F.I.R. Exh.PA. Leave was granted in this case only to examine whether the offence committed by the appellant falls A under section 11 or under section 16 of the Ordinance.
We, therefore, do not need to go into the veracity of the evidence produced by the prosecution and we shall cufine ourselves to the nature of the offence committed by the appellant.
3. It is mentioned in the F.I.R. That {{URDU TEXT}}It clearly indicates that Mst. Bano wife of Ashraf Khan had some illicit relations with the appellant and there is nothing on the record to show that she was not willing to go with him. Conversely the complainant while appearing as P.W.8 deposed in his examination-in-chief saying "however, both Mst. Bano and Amanullah were not present in the Kotha and they had run away". The question in these circumstances is whether or not provisions of section 11 are attracted to the act committed by the appellant. In order to ascertain this aspect of the case, it will be pertinent to reproduce section 11 of the Ordinance which reads as under:-- "11. Kidnapping, abducting_or inducing woman to compel for marriage, etc. -Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code ( Act XLV of 1860), or of abuse of authority or any other method of compulsion induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
It is clear from the plain reading of this section that in order to establish a charge under section 11 of the Ordinance the prosecution has to prove either kidnapping or abduction on the part of the accused. "Kidnapping' and "abduction" have not been defined in the Ordinance but it is provided at the end of section 2 of the Ordinance that all the terms and expressions not defined in the Ordinance shall have the same meaning as in the P.P.C.
4. Therefore, the definitions of both the terms shall have to be taken from the Pakistan Penal Code.
"Kidnapping from lawful guardianship" has been defined in section 361 of the P.P.C., and according to this definition the term "kidnapping" applies only where the victim is a minor. In the instant case Mst. Bano, the victim is a married woman whose daughter was of about 10 years of age at the time of occurrence. As Mst. Bano,.The victim in this case . Was not a minor, the offence committed by the appellant does not fall within the definition of kidnapping. As for the "abduction' it is defined in section 362 of the P.P.C. As follows:- "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
' According to this definition of abduction there should be either an element of force on the part of the accused or the use of deceitful means to induce a person. Neither of the two elements are proved on the record. Mst. Bano being a consenting party, the appellant neither used force against her, nor is there any indication that he has used some deceitful means to induce her to go from her house. In the absence of an element of force or compulsion on the part of the appellant, the charge of abduction under section 11 is not established against him.
5. On the other hand section 16 of the Ordinance reads as follows:--"
"16. Enticing or taking away or detaining with criminal intent a woman.-- Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
The words used in this section do not require any force or compulsion on the part of the accused nor is it necessary for the establishment of an offence under this section that a victim be a minor.
Therefore the offence committed by the appellant in fact falls under section 16 and not under section 11.
6. The learned counsel for the appellant submitted that even the provisions of section 16 are not attracted to the present case, because Mst. Bano had accompanied the appellant with her free will, and the provisions of section 16 do not apply where the woman is a consenting party. The question whether or not an offence under section 16 is made out where a woman accompanies an accused with her consent was examined by this Court in the case of Amanullah v. The State (reported in PLD 1988 SC 710) and it was held therein that "taking away a woman with intent to commit illicit sexual intercourse with her" is sufficient to form an offence under this section, even if it is done with the consent of that woman or on her own request.
7. In this view of the matter, we are fully convinced that the offence under section 16 has been fully proved against the appellant. We, therefore, convert his conviction from section 11 to one under section 16 of the Ordinance and sentence him to 7 years' R.I. With 30 stripes and a fine of Rs.10,000 to be paid, if recovered, to the heirs of Muhammad Ashraf Khan, the husband of Mst. Banowho was murdered during the trial. In case the appellant is unable to pay fine he shall further undergo simple imprisonment for a term of one year. He shall also get the benefit of section 382-B, Cr.P.C.
His conviction and sentence under section 326, P.P.C. Shall remain intact. The sentence of imprisonment under both counts shall run concurrently. With this modification this appeal is dismissed.