' Mst. Gill Mina aged about 9 years and Gul Jan aged about 7 years, daughter and grandson respectively of complainant Mian Wali were playing outside their house on 15-12-1992 but at 11-00 hours they disappeared. The complainant was searching for them when he came to know that they had been abducted by two Afghan. Mohajirs named Abdul Khalil and Baz Muhammad. The complainant went to Police Station, Sariyab on 20-12-1992 and recorded F.I.R. No,189/92.
2. Mst. Gul Mina was recovered from the house of appellant Abdul Khalil on 21-12-1992 and on the same day she was medically examined by a lady doctor who found that Mst. Gul Mina had been subjected to sexual intercourse. The girl charged appellant Abdul Khalil for committing Zina-bilJabr with her after abducting her.
3. After investigation both the appellants, Abdul Khalil and Baz Muhammad, were sent up for trial before Additional Sessions Judge III, Quetta, who charged them under section 364-A, P.P.C. Read with section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Additional Sessions Judge also charged appellant Abdul Khalil under section 10 of the Hudood Ordinance for subjecting Mst. Gul Mina to Zina-bilJabr between 15-12-1992 to 21-12-1992. Both the appellants pleaded not guilty to the charges and claimed trial. Seven witnesses were produced in proof of the prosecution case. Both the appellants made depositions under section 342, Cr.P.C. Both the appellants also made depositions on oath. Appellant Abdul Khalil also produced three defence witnesses whereas appellant Baz Muhammad produced on defence witness. After the conclusion of the trial the learned Additional Sessions Judge held both the appellants guilty under section 16 of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 7 years, to suffer 15 stripes and to pay a fine of Rs,1,000 or in default to further undergo rigorous 'imprisonment for 6 months. Appellant Abdul Khalil was also convicted under section 10(2) of the Hudood Ordinance and was sentenced to undergo rigorous imprisonment for 10 years, to suffer 30 stripes and to pay a fine of Rs,1,000 or in default to further undergo rigorous imprisonment for 2 months. Both the convicts have challenged their conviction and sentence by the appeal in hand.
4. In so far as appellant Abdul Khalil is concerned, the allegation of the prosecution against him was that he had abducted Mst. Gul Mina minor daughter of the complainant and had subjected her to rape. On the contrary the plea of appellant Abdul Khalil was that he had married Mst. Gul Mina and in that capacity he had been cohabiting with her. He also produced oral evidence to prove the allegation of Nikah. However, no evidence was produced to show that any Nikah had been registered or that any Nikah had taken place with the consent of the guardians of the girl. The alleged Nikahkhawan did not remember as on which date he had performed the Nikah of appellant Abdul Khalil with Mst. Gul Mina and what was the dower amount. This deposition of the Nikahkhawn and the factum that no document of Nikah had been prepared would be sufficient to disprove the allegation of Nikah of this appellant with Mst. Gul Mina. Actually no Nikah had ever taken place and appellant Abdul Khalil was guilty of committing Zina-bil-Jabr with Mst. Gul Mina and for that purpose he had abducted her. It has also come in evidence that she was recovered from his house on the 6th day of her disappearance. It is to be noted that since appellant Abdul Khalil had taken up the plea that Mst. Gul Mina was his wife it was incumbent upon him to prove the solemnization of Nikah with her by very strong and cogent evidence but he miserably failed in this respect. He had brutally subjected to Zina-bil-Jabr a minor girl of 9/10 years.
5. In so far as the case of appellant Baz Muhammad is concerned, besides the oral chital of the complainant in the F.I.R. Nothing was brought on the record to prove his involvement in the abduction of Mst. Gul Mina. Actually no prosecution witness had deposed anything against this appellant and nowhere it was alleged that he was ever instrumental in the abduction of Mst. Gul Mina by appellant Abdul Khalil.
6. From the evidence produced during the trial it was proved beyond any doubt whatsoever that appellant Abdul Khalil had abducted Mst. Gul Mina and had then subjected her to sexual intercourse without marrying her and without her consent. Actually he had committed the offences of abduction of Mst. Gul Mina a minor girl of 9/10 years and then subjecting her to Zina-bilJabr under sections 11 and 10(3) of the Hudood Ordinance. But the learned trial Judge thought it fit to convict him for enticement of the girl and then committing sexual intercourse with her with her consent. Whereas the girl being of such a minor age could neither be a willing party to the act of sexual intercourse with her nor she accompanied him knowingly for that purpose. He abducted her on the pretext of giving sweets. To her. The record does not show as what reasons prevailed with the learned trial Judge for convicting appellant Abdul Khalil under sections 16 and 10(2) of the Hudood Ordinance instead of under sections 11 and 10(3) thereof. A notice of enhancement of sentence did not appear appropriate at such late stage of the proceeding in appeal when it had become ripe for hearing arguments and then to pronounce final order therein. Whereas none of the offences could be proved against appellant Baz Muhammad.
7. Consequently the appeal is partly accepted. The conviction and sentence of appellant Baz Muhammad son of Muhammad Yar recorded on 9-6-1994 by the learned Additional Sessions Judge III, Quetta are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.
' In so far as appellant Abdul Khalil son of Ghulam Mohiuddin is concerned, his appeal is dismissed.
The conviction and sentence recorded on 9-6-1994 by the learned Additional Sessions Judge III, Quetta are maintained. However, both the substantive sentences of imprisonment shall run concurrently. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C.