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Criminal Appeal No. 2(S) of 1984, decided on 14th May, 1985,

(On appeal from the judgment of the Federal Shariat Court, Lahore, dated 14-3-1984 in Criminal Appeal No. 214/L of 1983).

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

-- S. 11 & 10(3) -Zina-Prosecutrix failing to explain her conduct involving long silence (about 8 months) and absence of protest despite opportunity during course that she remained with accused allegedly under coercion -Prosecutrix asserting under cross-examination that she had an illegitimate child but the statement was not accompanied by a properly made explanation that it was on account of her condition of pregnancy that she was unable to face her relations and had reigned to a fate of being a spoiled woman No presumption, held, could be raised in favour of prosecutrix that she kept silence for such a long time on account of pregnancy. Reasonable possibility, therefore, could not be excluded that prosecutrix left her mother's house with accused on account of her own free will and she remained with him for such a long time without any coercion anal it would be very difficult to assume in her favour that having done that she had not willingly subjected her to illicit intercourse with accused whom she had chosen to run away with-Conviction of accused under Ss. 11 & 10(3) were set aside on extension of benefit of reasonable doubt and accused was thus convicted under S. 10(2) for offence of Zina liable to Tazir.

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

-- Ss. 10, 12 & 13-Interpretation of sections--Life imprisonment Award of sentence-Intermix of Legislature-Questions for examination and classification by legislation with regard to imprisonment pointed out by Supreme Court.

As at present worded section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) does not admit of any possibility of award of the sentence of imprisonment which might be less than the imprisonment for life. The words used are "whoever kidnaps or abducts any woman with intent . . . . . . shall be punished with imprisonment for life and with . . . . "does not admit of any other interpretation. The reference to sections 10, 12 and 13 of the Ordinance which also provided for long sentences of 25 years' R. I. and imprisonment for life, does not support the contention that the imprisonment under section 11 can be lesser than that of imprisonment for life. Argument that read in the context of sections 10, 12 and 13 the provision in. section 11 for award of only one punishment and that also of imprisonment for life, does not stand to reason, might have some force ; but, so long as the language in the relevant section is clear and there is no material for holding that the intention was otherwise, the Court would not change or even interpret the word "shall" as used in section 11 into "may". Further, the argument, that the Legislature might not have intended to use the word "shall" and that it might, in the context of the other provisions have been used on account of a drafting mistake is also without force. The assertion regarding "mistake of drafting", can be examined in its detail only if there is some material available before Court. Mere statement in this behalf is not enough to come to a definite conclusion that it was in reality a mistake. It is for the Legislature to examine the question with a view to find out whether keeping in view the other provisions and punishments in sections 10, 12 and 13, it was not printing or draftsman's mistake to prescribe only one punishment of "imprisonment for life" without leaving any scope for imprisonment of any lesser period (may be, by fixing the minimum as done in subsection (3) of section 10, at a certain higher level than the ordinary). It would also be for the Legislature to examine whether the experience of acquittals under section 11 at the trial level as also conversions from section 10(3) to section 10(2) when there is also a charge of section 11 might not have been indirectly, subconsciously, influenced by the fact that in case of conviction, imprisonment for life is in any case to be awarded under section 11. The other aspect that for the complainant side, when the honour and future life of young girls is involved the finding of consent (which undoubtedly mars the future of young girl in our society)

if at all it is influenced by extreme penalty only, as awardable under section 11, is also for the Legislature to examine. For that reason alone, Supreme Court is not competent to read section 11 in such a manner as to make it possible for the Courts to award any sentence of imprisonment which might be less than for life, but this is a matter for the Legislature to clarify.

Arif 1qbal Hussain Bhatti, Advocate Supreme Court for Appellant.

Rao M. Yousr f Khan, Advocate-on-Record for the State.

Date of hearing : 14th May, 1985.

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).-This appeal is directed against

judgment of the Federal Shariat Court dated 14-3-1984 ; whereby while dismissing a criminal appeal filed by the appellant from his conviction and sentence under sections 10 and 11 of the offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), the sentence of 5 years' R, I. and 10 stripes as also Rs. 5,000 fine on each of the said two counts was modified as follows

Under section 11- Sentence of imprisonment of 5 years' R. I. enhanced to life imprisonment ; sentences of 10 stripes and Rs. 5,000 as fine maintained.

Under section 10(3)-Sentence of 5 years' R. I. and 10 stripes was maintained while the sentence of fine was set aside.

It was also directed that in default of payment of fine of Rs. 5,000 under section 11, the appellant was to undergo one year's R. I. and that the fine when recovered shall be paid as compensation to Mst. Shahnaz Bibi the prosecutrix.

It may also be mentioned that two other persons in addition to the present appellant (Muhammad Sharif son of Faqir Muhammad) were sought to be prosecuted for the same offence. They are : Muhammad Sharif son of Jamal Din and one Muhammad Boota. Only the present appellant and Muhammad Boota faced the trial, Muhammad Sharif son of Jamal Din remained a proclaimed offender. Muhammad Boota was acquitted on the finding that no evidence was produced by the prosecution against him.

The prosecution case as contained in the deposition of Mst. Shahnaz Bibi the prosecutrix is as follows

"Shahnaz Bibi wife of Muhammnd Safdar aged 20 years, caste Rajput, housewife residence of Mehdipur P. S. Kahna, Lahore.

"My father died about 10/12 years back. I was married with Muhammad Safdar four years back. I lived with Muhammad Safdar happily for about two years. Thereafter I came back to the house of my mother due to strained relations with my husband. -I know both the accused present in Court. When I came to the house of my mother Muhammad Sharif accused came to my mother and suggested that he could get me divorced from my husband if my marriage would be solemnized with Muhammad Sharif (absconder) who is his brother-in-law. My mother refused to marry me with Muhammad Sharif (absconder). Thereafter, Muhammad Sharif accused brought a blank paper on which he got thumb-impression of my family including myself. One day when my mother went to Kahna, Muhammad Sharif accused came to me and requested that his wife was not well, therefore, I should accompany him for preparing Chapatis. I accompanied Muhammad Sharif accused, my brother Muhammad Shafi was present in the house. When I was going with Muhammad Sharif the other Sharif (absconder) met us on the way and he was sitting in a tonga. Both the Sharifs seated me in that tonga and took me to Boowa Asal from there they took me to Lahore. Then they took me to Sind in train. They kept me for seven months in Sind where they have been committing. Zina with me forcibly. Afterwards they brought me back to my village. Then Sharif accused kept me for 15 days in his house from where I made good my escape to my mother's house. I told the whole incident to mother and brothers. Then my mother went to inform the police alongwith Muhammad Hanif member. The Investigating Officer came to our house and I got my statement recorded. Thereafter, I was medically examined."

This deposition was sought to be supported by the deposition of Mst. Begum, mother of the prosecutrix and some items of circumstantial evidence.

Both the learned Courts below having accepted the version given by Mst. Shahnaz Bibi, found the appellant guilty under section 10 and section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).

Learned counsel has raised two-fold contentions : One, that the charge having been framed under section 10(2) and section 16 of the Ordinance, the appellant could not have been convicted under section 10(3) and section 11 of the Ordinance without amending the charge in accordance with the procedure prescribed in the Criminal Procedure Code ; as, the offences for which the appellant: has been convicted are graver than those mentioned in the charge ; and further that, as contended, the Federal Shariat Court wrongly assumed that a sentence lesser than that of imprisonment for life could not be awarded under section 11 of the Ordinance. On merits learned counsel analysed the deposition of Mst. Shahnaz Bibi to contend ;hat it could not be a case of use of force, co-ercion or even of deceit. In alternative he contended that the appellant's plea that he had only assisted the husband of Mst. Shahnaz Bibi in retrieving his estranged wife by carrying their luggage only be upheld.

The cross-examination on Myt. Shahnaz Bibi shows that she failed to explain her conduct involving long silence and absence of protest despite ample opportunity during the course that she remained with the accused allegedly under coercion. Even if it be assumed for the sake of argument that when initially travelling in the bus for a short time she was unable to raise alarm on account of the accused having showed her a dagger, it is not acceptable that she travelled, as admitted by her from Lahore to Sind, in a train without finding an opportunity either to run away or to create an alarm; because no such explanation has been offered by her in this behalf in regard to the long train journey. Secondly, even if it be assumed that she could have been kept in seclusion when in Lahore or during transit and she had no opportunity of either running away or creating alarm during that 8/9 days stay, it does not stand to reason that she has had no opportunity for more than half a year when kept in Sind to either run away or raise an alarm. She asserted under cross-examination that she had an illegitimate child. But this statement is not accompanied by a properly made explanation that it was on account of her condition of pregnancy that she was unable to face her relations and had resigned to a fate of being a spoiled woman. No presumption can be raised therefore in her favour that she kept silence for such a long time on account of pregnancy. There is some evidence that at the relevant time she was not living with her husband who as suggested by the prosecution had gone to Karachi, for his livelihood. Keeping in view all these circumstances, although the evidence on the record is not enough to give a positive finding that the spouses were estranged and that the appellant was only helping the husband to retrieve his wife by use of some force, a reasonable possibility in this case cannot be excluded that Mst. Shahnaz Bibi left her mother's house with the accused on account of her own free will and she remained with him for such a long time without any coercion. Similarly, it will be very difficult to assume in her favour that having done that she had not willingly subjected herself to illicit intercourse with the accused whom she had chosen to run away with. Therefore, the conviction of the appellant under section 1 I and subsection (3) of section 1 has to be set aside on extension of benefit of reasonable doubt. Accord ingly the appellant- is acquitted in so far as section 11 is concerned..

Regarding the conviction under subsection (3) of section 10 as heldl above the conviction cannot be maintained for Zina-bil-jabr (punishable under subsection (3) of section 10 of the Ordinance). Instead the appellant is convicted under section 10(2) of the Ordinance for the offence of Zina liable to Taiir. The sentence under the said provision awarded by the learned trial Court of 5 years' R. I. with 10 stripes and fine of Rs. 5.000 in default whereof one year's R. 1. are, therefore, restored. The amount of fine when recovered, shall be paid as compensation to Mst. Shahnaz Bibi.

The legal contention raised by the learned counsel regarding conviction under section 10(3) and section 11, in view of the above setting aside of the same on merits, need not now be examined.

We may, however, observe that as at present worded section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) does not admit of any possibility of award of the sentence of imprisonment which might be less than the imprisonment for life. The words used are "whoever kidnaps or abducts any woman with intent . . . . . . shall be punished with imprisonment for life and with . . . . . ." does not admit of C any other interpretation. The reference by the learned counsel to sections 10, 12 and 13 of the Ordinance which also provided for long sentences of 25 years' R. I. and imprisonment for life, does not support the contention that the imprisonment under section 11 can be lesser than that of imprisonment for life. His argument that read in the context of sections 10, 1 and 13 the provision in section 11 for award of only one punishment and that also of imprisonment for life, does not stand to reason, might have some force ; but, so long as the language in the relevant section is clear and there is no material for holding that the intention was otherwise, the Court would not change or even interpret the word "shall" as used in section 11 into "may". Further, the argument, that the Legislature might not have intended to use the word "shall" and that, it might, in the context of the other provisions have been used on account of a drafting mistake is also without force. The assertion regarding "mistake of drafting", can be examined in its detail only if there is some material available before us. Mere statement in this behalf is not enough to come to a definite conclusion that it was in reality a mistake.

We accordingly while repelling these arguments, would observe that it is for the Legislature to examine the question with a view to find out whether keeping in view the other provisions and punishments in sections 10, 12 and 13, it was not a printing or draftsman's mistake to prescribe only on punishment of "imprisonment for life" without leaving any scope for imprisonment of any lesser period (may be, by fixing the minimum as done in subsection (3) of section,10, at a certain higher level than the ordinary), It would also be for the Legislature to examine whether the experience of acquittals under section 11 at the trial level as also conversions from section 10(3) to section 10(2) when there is also a charge of section 11 might not have been indirectly, subconsciously, influenced by the fact that in case of conviction, imprisonment for life is in any case to be awarded under section 11. The other aspect that for the complainant sides when the honour and future life of young girls is involved the finding of consenP (which undoubtedly mars the future of young g;rl in our society) if at all it is influenced by extreme penalty only, as awardable under section ll, is also for the Legislature to examine. For that reason alone, this Court is not competent to read section 11 in such a manner as to make it possible for the Courts to award any sentence of imprisonment which might be less than for life, but this is a matter for the- Legislature to clarify.

With these remarks the appeal, as held above, is partly allowed.

M. B. A. Appeal partly allowed.

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