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Petition for Special Leave to Appeal No. 189 of 1971, decided on 22nd October 1971.

(On appeal from the judgment and order of the High Court, Lahore, dated the 23rd June 1971, in Criminal Appeal No. 270 of 1969).

Criminal Procedure Code (V of 1898),

S. 393 read with Whip ping Ordinance (V of 1969), S. 4(a)‑Criminal Procedure Code and Whipping Ordinance both provincial laws‑Amendment of S. 393 of Cr. P. C. by S. 4(a) by provincial Legislature competent‑Petition for special leave to appeal dismissed.

S. M. Masood Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri. Advocate‑on‑Record for Petitioner.

Nemo for the State.

Dates of hearing : 21st and 22nd October 1971.

The, petitioner stands convicted under sections 366 and 376 read with section 511, P. P. C. and sentenced to substantial terms of imprisonment and to suffer 20 stripes.

On 27‑3‑1969 he lifted Mst. Nasim aged 6/7 years from her gram‑field in village Mir Baz to a cattle‑shed at a distance of one killa and attempted to commit rape on her. He force penetration which resulting in tearing the hymen of the victim and caused bruises on the area outside the vagina. She bleeded from her private part and cried aloud. This attracted Jaffar Ali and Fazil, the two eye‑wittiesses on whose arrival the petitioner fled away. They found Mst. Nasieil lying naked on the ground and groaning in pain. Her chaddar was stained with blood. She was carried to her house whereupon her father reported the incident to the police. The petitioner was arrested on 29‑3‑1969. The loin cloth and the shirt he was wearing were found to be stained with blood.

The Courts below relied on the testimony of Mst. Nasim and the two eye‑witnesses who were the fellow villagers of the petitioner and had no motive to falsely implicate the petitioner. The plea raised in defence that the petitioner was falsely roped in at the instance of one Shakar Shah who was inimical to his father was found to be without any‑substance.

In view of the overwhelming evidence against the petitioner his counsel Mr. S. M. Masood did not agitate against his conviction under section 376/511, P. P.C but contended that no offence under section 366, P. P. C. was made out. He cited a judgment from foreign jurisdiction which was distinguishable on facts. The victim of assault in that case had come to the field of the accused where the accused caught hold of her and committed rape on her. In the instant case the petitioner lifted Mst. Nasim from her gram‑field and forcibly took her away to his cattle‑shed at a distance of 220 feet. All the ingredients of kidnapping within section 366, P. P. C. were thus made out.

Mr. S. M. Masood next contended that the sentence of 20 stripes was illegal and relied on section 393, Cr. P. C., which inter alia provides that the sentence of whipping will not be awarded to an accused person who is sentenced to imprisonment for five years or more. He challenged the vires of section 4 (a) of the Whipping Ordinance (VI of 1969) which provides that notwithstanding section 393 a person guilty of offences enumerated therein which include sections 366 and 376‑ shall be awarded sentence of whipping.

It was argued that under Article 134 of the Constitution of 1962 when a Provincial law is inconsistent with a Central law the latter law shall prevail. The contention is misconceived as both the Code of Criminal Procedure and the Whipping Ordinance are R Provincial laws. The Code of Criminal Procedure can be amended by the Provincial Legislature and Ordinance VI has to the extent of section 4 (a) amended section 393, Cr. P. C.

Neither ground raised in the petition has thus any force to justify interference with the petitioner's conviction and sentences. The petition for leave to appeal is dismissed.

Petition dismissed.

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