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Criminal Petition for Leave to Appeal No. 44‑R(S) of 1985, decided on 16th September, 1985.
(From the Judgment of the Federal Shariat Court, Lahore, dated 2‑1‑1985 in Criminal Appeal No. 184/1, of 1984).
‑‑‑Art.203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 10(3)‑‑Penal Code (XLV of 1860), S.361‑‑Zina‑bil Jabr‑‑Victim of 16 years of age‑‑Section 361, P . P . C . was to be read for discovering definition of kidnapping for purpose of S.11 of Ordinance‑‑Plea of consent, held, would not be of any avail to accused, victim of crime being of age specified in definition of "kidnapping from lawful guardianship" in S. 361, P.P.C.
‑‑‑Art.203‑F‑‑Of fence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 10(3)‑‑Leave to appeal‑‑Questions raised in favour of petition were regarding findings of fact which related to appreciation of evidence and which after hearing were found to be not suffering from any infirmity‑‑Leave to appeal refused.
‑‑‑Ss. 11 & 10(3)‑‑Zina‑bil‑Jabr and kidnapping‑‑Sentence‑‑Reduction‑ Young age and poverty of accused‑‑Accused being convict of Zina‑bil -Jabr and kidnapping/abduction under S. 11 of Ordinance, Court, held, had no discretion to award sentence of imprisonment less than that of life.‑‑[Sentence].
S. Abid Nawaz, Advocate‑on‑Record for Petitioner.
Abdul Asim Jafri, Advocate Supreme Court for the State.
Date of hearing: 16th September, 1985.
.‑‑Leave to appeal has been sought from judgment dated 2‑1‑1985 of the Federal Shariait Court whereby petitioner's conviction under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) 3f 1979, and sentences of life imprisonment, 5 stripes, a fine of Rs.5,000 under the former provision, while 10 years' R.I. and 30 stripes under the latter provision, were confirmed.
The petitioner was charged with the abduction of Shamshad Kausar a minor girl about 12 years of age and thereafter commission of Zina‑bil Jabr with her which are punishable under sections 11 and 10(3) of the Ordinance. The petitioner had in reality kidnapped Mst. Shamshad Kausar from a lawful guardianship she being a minor and was taken away to Murree Hills. She was also subjected to Zina‑bil‑Jabr.
The arguments with regard to consent would not be of any avail to the petitioner as the victim of the crime was of age specified in the definition of "kidnapping from lawful guardianship" in section 361, P.P.C. namely, sixteen years and the said section according to the law is to be read for discovering the definition of kidnapping for purpose of section 11 of the Ordinance.
Learned counsel also raised some questions with regard to the findings of fact. They relate only to the appreciation of evidence, which, after hearing him we are of the view, does not suffer from any infirmity.
Lastly, he raised the contentions for reduction of sentence on account of the young age and poverty of the petitioner.
In the circumstances of the present case, he does not deserve any leniency in so far as Zina‑bil‑Jabr is concerned and regarding kidnapping /abduction under section 11, the Court as the law stands now, has no discretion to award sentence of imprisonment less than that of life.
This petition has no force; accordingly leave to appeal, is refused.
M . B . A . Petition dismissed.
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