HASHIM KHAN Versus THE STATE

JUSTICE NASIM HASAN SHAH (CHAIRMAN): ‑‑This appeal by the leave of the Court is directed against the judgment of the Federal Shariat Court dated 22‑3‑1988.

2. The facts, in brief, are that on 17‑10‑1981, Mst. Rukhsana (PW.5) the complainant, was busy in the kitchen of her house and her sister‑in‑laws Mst. Zahida Parveen and Bushra were sitting in the courtyard of the house alongwith one Mst. Farzana, their neighbour. She heard the alarm of her sister‑in‑law Mst. Zahida Parveen. 'She entered the kitchen and found that Hasham Khan, appellant, armed with a knife caught hold of Mst. Zahida Parveen and was dragging her. The complainant and two other ladies tried to rescue Mst. Zahida Parveen but could not succeed. The accused abducted Mst. Zahida Parveen. The report of the incident was lodged by Mst. Rukhsana the same day. 1n the report, she also mentioned the presence of two other persons as helpers of Hashim Khan. One of them was identified as Rashid, the absconding accused. The motive for the offence was that Hashim Khan intended to marry Mst. Zahida Parveen but her mother had turned down his request for marriage. At the trial, the prosecution examined ten witnesses. Hashim Khan, Muhammad Zaman and Zafrullah accused were tried by the Additional Sessions Judge, Kohat. Abdur Rashid accused absconded during the trial and was therefore declared as proclaimed offender. The aforesaid three accused denied the allegation against them. The trial Judge acquitted Muhammad Zarrian and Zafrullah and convicted Hashim under Section 11 of the Hudood Ordinance (hereinafter referred to as the Ordinance) and sentenced him to life imprisonment, 30 stripes and fine of Rs.5,000 or in default in the payment of fine, to suffer further R.I. for two years: under section 10(3) of the Ordinance, 10 years' R.I. and fine of Rs.5,000 and in default, R.I. for two years and 30 stripes: and under section 324, P.P.C. to one year R.I. and fine of Rs.2,000 or in default to suffer further R.I. for six months. All the sentences were ordered to run concurrently. It was further directed that the amount of fine, if recovered, half of the same be paid to Mst. Zahida Parveen as compensation under section 544‑A, Cr.P.C. The appeal preferred by the appellant in the Federal Shariat Court was dismissed and the sentence of fine on conviction under section 10(3) of the Ordinance was set aside.

3. In order to bring home the charge against the appellant the prosecution relied upon;

(i) the recovery from the accused' a Suzuki, a .12 bore gun with five cartridges;

(ii) the recovery of Mst. Zahida Parveen from the custody of the accused;

(iii) direct evidence as furnished by PW.4 Mst. Rukhsana and P.W.6 Mst. Zahida Parveen. (The two witnesses Mst. Bushra and Mst. Farzana were not produced), and

(iv) the medical evidence as furnished by Lady Dr. Khurshid (P.W.3).

4. As regards the commission of the‑offence by the appellant, that has been established by overwhelming evidence. The two Courts below have assessed the evidence in true perspective. The prosecutrix Mst. Zahida Parveen (P.W.6) supported the prosecution case and corroborated the statement of Mst. Rukhsana P.W.5. She was recovered from the custody of the appellant. Clothes EX.P.26, shirt and shalwar Exhs. P.27 and P.28 respectively of Mst. Zahida Parveen were stained with blood and semen. Mst. Zahida Parveen had received injuries at the hands of the appellant. She had stated that the appellant had committed Zina‑bil- jabr with her ten times. In his statement under section 342, Cr.P.C., the appellant H has admitted that she was in his custody but gave an explanation which was rightly rejected by the Courts. The appellant stated as follows:‑‑‑

"She had gone to his house on her own accord, and he wanted to return her to her parents but she refused to go to her parents and in order to return her to her parents he took her to the house of her relatives."

5. The case against the appellant was proved to the hilt. No material evidence has been discarded. It is not the case of misreading of evidence. As such, the evidence does not require reappraisal in this case.

6.Leave to Appeal was also granted to consider whether the appellant was rightly convicted under section II of the case falls under section 16 thereof Mst. Zahida Parveen was medically examined on 10-12-1986 and she was 20/21 years of age at that time. The date of the incident is 17-10-1981. The essential ingredients of section II of the Ordinance are that any woman is abducted or kidnapped with intent that she may be compelled to marry any person against her will or that she may be forced or seduced to illicit intercourse whereas section 16 provides that 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 Learned counsel for the applicant submitted that the case falls under section 16 of the Ordinance. Mst Zahida Parveen eloped with the appellant. The ingredients of section II are missing in this case this plea was also raised before the Federal Shariat Court but the same was rejected by the Court for the following reasons recorded in Para II of the Judgment.

Learned counsel for the appellant vehemently argued that in view of certain admitted facts Mst. Zahida Parveen was a consenting party and that the accused being on visiting terms went to their house prior to the occurrence she had already developed intimacy with him. He accordingly contended that the intention, which is necessary to prove the offence under section 11 of the said Ordinanace, is not present in the instant case. He argued that the statement of Mst. Zahida Parveen recorded during the trial was the result of coercion by her relatives as she was handed over to her mother soon after her recovery and during that period she appears to have been properly tutored by her whereas in fact from her conduct it appears that she was a consenting party throughout.

None of these arguments have any force for the reason that before making statement during the trial Mst. Zahida Parveen had already stated a similar version in her statement recorded under section 164 Cr.P.C, soon after her recovery. Similarly no evidence worth consideration has been shown on the record to give any indication about the conduct of Mst. Zahida Parveen showing her as a consenting party.

There is no exception to the above finding.

7. The facts of the present case do not show that the prosecutix was enticed away by the appellant. The element of inducement is missing in this case. The word take does not mean taking by force. IT implies to get into possession or cause to go with an accused. An accused may exert some influence on the woman. There may by some kind of inducement or seduction by the accused to attract the provisions of section 16 of the Ordinance but where any woman has been taken away by force by a person against her will, be provisions of section 11 of the Ordinance would be attracted. It is always a question of fact which is to be determined on the material on record whether the case falls under section11 or 16 of the Ordinance in the pres4ent case, she was abducted by the appellant from her house against her will According to the prosecution evidence, Mst. Zahida Parveen was present in her house. The appellant entered the house. He tried to take away Mst. Zahida Parveen by force. She in order to save herself ran into the kitchen of the house and also raised cries. The appellant started dragging her. He was armed with a knife and the complainant and the other tow ladies tried to rescue her but they could not succeed. With the help of another man the appellant forcibly took her away. Mst. Zahida also received injuries at the hands of the appellant and Lady Dr establishes the fact. Khurshid (PW 3) Mst. Zahida further stated that she was made to sit forcibly on the front seat of the waiting Suzuki Pick-up. She was taken to different places. The accused gave her beating and injured her at aback as well as at her thigh and threatened her that her nose and ears would by cut if she did not consent to marry with him. She pointed out the places where the appellant took her after her abduction sexual intercourse. Exhs. P.26 p.27 and P28 were stained with blood and semen all these facts taking jointly lead us to an irresistible conclusion that the case falls under section 11 of the Ordinance.

8. As regards punishment, the appellant stands sentenced under section 11 of the Ordinance to life imprisonment with whipping (30 stripes) and to a fine of Rs. 5000 and in case of default in its payment to further R.I. for 2 years. It is submitted that the sentence of life imprisonment has been imposed on the appellant because under section 11 of the Ordinance any person found guilty there under shall be punished with imprisonment for life although any person found guilty even for the much more heinous offence of Zina-bil-jabir under section 10 (3)of the Ordinance is liable to punishment to a term extending to life imprisonment and in fact the appellant herein despite e being found guilty under section 10(3) was awarded imprisonment of 10 years only.

9. The submission of the learned counsel for the appellant is that the language employed by the draftsman under section f is inartistic and those express the true intention of the law-maker. According to him the real mention of the law-maker was to make a person guilty under section 10(3) of the Offence and the word extending ahs been inadvertently omitted in the provision. To us also this appears to be the case and was also feel that the real intention of the lawmaker is not refiendere din actual text to the provision. But the question is whether we can supply this omission

10. The Supreme Court in exercise of an its ordinary jurisdiction has had occasion to deal with question on more than one occasion and has and has ruled that even though the Court cannot normally give any meaning to a provision other than that which the words used therein by the draftsman carry however drastic or inconvenient the result may be but the Court nevertheless in order to avoid injustice can give effect to the true and patent intention of the law maker by supplying an omission (see Muhammad Amir khan v. Controller of Estate Duty PLD 1961 SC 119 and Muhammad Ismail v. The State PLD 1969 SC 241)

And in out opinion the jurisdiction of a Shariat court in the matter of Ta zir punishments is even more extensive.

11. Accordingly, in order to avoid injustice and to give effect to the true intention of the law-maker we would supply the inadvertent omission in section11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 with a view to bringing it in conformity with the true intention of the law-maker, as follows:---

11. Kidnapping abducting or inducing woman to compel for marriage etc -----whoever kidnaps or abducts any woman wit intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against get will or in order that she may be forced or seduced illicit intercourse or knowing it to be likely that she will be forced to seduced to illicit intercourse shall be punished with imprisonment which may extent to 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.

(Under lined words are ours in place of the words for life presently appearing in Section 11).

12. Coming now to the question of punishment to be imposed on the appellant the appropriate sentence which should be awarded to the appellant after having been found guilty under section 11 of the ordinance is in our opinion , 10 years only and not life imprisonment. We would, accordingly reduce his punishment under section 11 of the ordinance to the 10 years alongwith whipping (30 stripes), plus a fine of Rs. 5,000 in default of payment of fine to 2 years further R.I The sentence under section 10 and 11 shall however, run concurrently.

The appeal is allowed in the above terms and in the result this appeal succeeds in part.

M.B.A./H-123/S Appeal partly allowed.