1998 S C M R 1126

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Munir A. Sheikh and Muhammad Taqi

Usmani, JJ

Hafiz MUHAMMAD RIAZ---Appellant

versus

THE STATE---Respondent

.Criminal Appeal No.52(S) of 1992, decided on 10th March, 1998.

(On appeal from the judgment dated 9-12-1991 of the Federal Shariat Court passed
in Criminal Appeal NO'. 131/I of 1991).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 11 & 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to

appeal was granted to accused to consider whether his conviction could be
converted from S.11 to S.16 and from S. 10(3) to S.10(2) of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 for holding the victim girl the
consenting party to the act.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 11, 10(3) & 2(e)---Penal Code (XLV of 1860), 5.361---By virtue of S.2(e)
of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 definition of
"kidnapping" given in S. 361, P.P.C. being applicable to S. 11 of the said
Ordinance, question of puberty of the victim girl was irrelevant and she being
under sixteen years of age according to medical evidence, her taking away fell
under the definition of "kidnapping" as contemplated in S.11 of the Ordinance---
Conviction of accused under S.11 of the Ordinance could not, therefore, be
converted to S. 16 thereof---Girl being a consenting party to elope with the
accused, which was a mitigating circumstance for giving him a lesser punishment,
sentence awarded to him under S.11 of the Ordinance was considerably reduced
---Abductee had specifically mentioned that the sexual intercourse committed
upon her was against her will for which she used to raise alarm which made the
villagers known about the wrongful act--Mere fact that the girl had accompanied
the accused with her free will after making an excuse of sickness in her school did
not itself prove that she was also a consenting party to the illegal sexual
intercourse---Conviction and sentence of accused under S.10(3) of the Ordinance
were consequently maintained.

Hashim Khan v. The State PLD 1991 SC 567 and Yousuf Masih v. The State 1994
SCMR 2102 ref.

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 11---Sentence---Discretion of Court--Court under S. 11 of the Offence of

Zina (Enforcement of Hudood) Ordinance, 1979, has the discretion to give a lesser
punishment than the imprisonment for life keeping in view the circumstances of
the case.

Hashim Khan v. The State PLD 1991 SC 567 ref. '

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VH of 1979)---

----S. 11---Sentence---Mitigating circumstance---Consent of the girl even if she is

less than sixteen years of age can be taken into consideration for awarding a lesser
punishment under S, 11 of the Ordinance.

Yousuf Masih v. The State 1994 SCMR 2102 ref.

Nasir Saeed Sheikh, Advocate Supreme Court for Appellant. Javed Aziz Sindhu,
Advocate Supreme Court for the State.'

Date of hearing: 10th March, 1998.

JUDGMENT

MUHAMMAD TAQI USMANI, J.---The appellant is held guilty by the two

Courts below of kidnapping Mst. Nazrana Kausar and committing rape on her. For
kidnapping he was sentenced under section 11 of the Offence of Zina
(Enforcement of Hadood) Ordinance 1979 (Hereinafter referred to in this judgment
as the Ordinance) and was sentenced to life imprisonment, thirty stripes and a fine
of Rs.10,000 (Rupees ten thousand) or one year R.I. in default. For committing
rape he was convicted under section 10(3) of the Ordinance and was sentenced to
25 years' R.I. and thirty stripes. The Federal Shariat Court vide its judgment dated
9-12-1991 upheld his conviction and sentence.

Leave was granted to him by this Court vide its order dated 16-8-1992 to consider
whether the conviction of the appellant can be converted from sections 11 to 16
and from 10(3) to 10(2) of the Ordinance for holding the victim Nazrana Kausar
the consenting party to the act. Since leave was granted on this limited question
only we need not go into the details of the case. We have only two issues before us
to determine: firstly, whether or not Mst. Nazrana Kausar eloped with the appellant
and let him commit sexual intercourse with her with free will and secondly,
whether she was competent to give consent keeping in view her age which was
around 15 (fifteen) years at the time of occurrence,

So far as the first question is concerned there is enough material on the record to
show that she was a consenting party to elope with the appellant. When examined
as P.W.3 she stated as follows:--

"On 3-3-1990, accused came outside of my school and told me that I should
see him on the following day i.e., 4-3-1990 outside the Gulyana Village on
4-3-1990, the accused came at 10-00 a.m. outside the Gulyana Village near
Banni Pond where I had come there from my school on the pretext of
sickness."

This admission of the girl goes a long way to prove that she went with him with
her free will. It is also on the record that she remained with the appellant from 4-3-
1990 to 13-3-1990 during which period the appellant took her at several places but
she did not try to escape from his clutches.

In these circumstances the possibility cannot be ruled out that the appellant did not
force her to accompany him.

The pertinent question, therefore, is whether her consent could be treated as a legal
consent to exonerate the appellant from the liability of section 11 or section 10(3)
of the Ordinance. So far as section 11 is concerned it reads as follows:--

"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."

It covers not only the abduction for which the use of force is a necessary ingredient
but it also covers kidnapping. Kidnapping is defined in section 361 of P.P.C. as
follows:--

"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."

By virtue of section 2(e) of the Ordinance which makes the definitions of P.P.C.
applicable to the Ordinance, this definition of kidnapping will be applied to section
11 of the Ordinance. This definition of kidnapping does not take into account
whether the girl is pubert or not; rather it provides that whoever takes or entices
any minor female under the age of sixteen years shall be guilty of kidnapping from
lawful guardianship. Therefore, the question of puberty of Mst. Nazrana Kausar
becomes irrelevant in so far as the conviction of the appellant under section 11 is
concerned. According to the lady Doctor Rahat Batool P.W.10, who examined her,
she was about 14-1/2 years of age. Therefore, being under sixteen years of age her
taking away will certainly fall under the definition of kidnapping as contemplated
in section 11 of the Ordinance.

In the light of the above discussion, conviction of the appellant under section 11
cannot be converted to section 16 of the Ordinance, however, the admission of the
girl as quoted hereinbefore can be taken as a mitigating circumstance for giving
him a lesser punishment under that section. It has already been held by this Court
in the case of Hashim Khan v. The State, PLD 1991 SC 567 that even in section
11, the Court has the discretion to give a lesser punishment than the life
imprisonment keeping in view the circumstances of the case. It is also held in the
case of Yousuf Masih v. The State 1994 SCMR 21022108 that the consent of the
girl even if she is less than sixteen years can be C taken into consideration for
awarding a lesser punishment under section 11 of the Ordinance.

The position in the case of 'Zina-bil-Jabr' is a little different.

We did not find anything on the record to show that Mst. Nazrana Kausar had let
the accused commit sexual intercourse with her wilfully. Her statement in this
regard is as follows:--
 "It was a village. He detained me there for 5/6 days. He had been
committing Zina-bil-Jabr with me there. I used to raise alarm. The people of
the village came to know this state of affair when the accused due to fear of
the villagers brought me out from the village during night time."

Here, the girl has specifically mentioned that the sexual intercourse committed
upon her was against her will for which she used to raise alarm which made the
villagers know about this wrongful act. The mere fact that she had accompanied
the accused with her free will after making an excuse of sickness in her school
does not itself prove that she was also a consenting party to the illegal sexual
intercourse. Therefore, even if the question of her age or puberty is kept aside for a
moment, she cannot be held nor suspected to be a consenting party to Zina. Hence,
the conviction of the appellant under section -10(3) of the Ordinance needs no
alteration.

For the reasons given above, we maintain the conviction of the appellant under
section 11 of the Ordinance, however, reduce his sentence thereunder from life
imprisonment to ten years' R.I. However, his conviction and sentence under
section 10(3) of the Ordinance is maintained. Both sentences of imprisonment
shall run concurrently and the benefit under
section 382(b), Cr.P.C. shall be given to him.

With this modification in sentence under section 11 only, this appeal is partly
allowed.

N.H.Q./M-121/S Order
accordingly.