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Criminal Petition No. 61‑R(S) of 1985, decided on 4th December, 1985.

(Against the judgment of Federal Shariat Court, dated 14‑4‑1985).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Appeal against acquittal and for enhancement of sentence‑‑Accused convicted and sentenced by trial Court for offences under S. 12 of Ordinance (VII of 1979) and S. 377, P.P.C.‑‑On appeal acquitted on charge of kidnapping and sentence under S. 377 reduced on account of his young age and being first offender‑‑Petition for leave to appeal seeking conviction and enhancement of sentence‑‑Removal of child being of only a few paces' with object and purpose to commit sodomy and not at all to remove or take away from lawful guardianship, it did not make an additional offence under S. 12 of Ordinance‑‑Acquittal on charge of kidnapping upheld‑‑Lesser sentence for offence under S. 377 being legal and all material factors relevant in context having been considered, held, did not call for interference by Supreme Court‑‑Leave to appeal refused.

Shamas Saeed Ahmad Khan v. Shafaullah and another Civil Appeal No. 17(S) of 1983 rel.

‑‑‑S. 377‑‑Sentence‑‑Reduction in sentence on account of young age of convict and his being first offender upheld by Supreme Court.‑ [Sentence‑‑Age].

‑‑‑S. 12‑‑Penal Code (XLV of 1860), S. 377‑‑Kidnapping for unnatural lust‑‑Removal of child only a few paces with object and purpose to commit sodomy and not at all to remove or take away child from lawful guardianship, will not make an additional offence under S.12 of Ordinance‑‑Acquittal on charge under S. 12 upheld by Supreme Court.

Shamas Saeed Ahmad Khan v. Shafaullah and another Criminal Appeal No. 17(S) of 1983 rel.

Malik Rab Nawaz Noon, Advocate Supreme Court and Akhtar Ali, Advocate‑on‑Record for Petitioner.

Rao Hamid Mukhtar, Advocate Supreme Court and Muhammad Yousaf, Advocate Supreme Court for Respondents.

Date of hearing: 15th September, 1985.

‑The petitioner, the father of a victim of sodomy, seeks leave to appeal against the judgment of the Federal Shariat Court, dated 14th of April, 1985 whereby respondent No. 1 was acquitted of the charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and for his conviction for the offence under section 377, P.P.C. the sentence was reduced to five years' R.I. and a fine of Rs.2,000 or in default one year R.I. allowing him also the benefit of section 382‑B, Cr.P.C.

The house of the petitioner was opposite to that of the respondent a lane intervening. On the 29th of December, 1983 at about 4‑30 p.m. the petitioner came out of his house to see off his guest Muhammad Aziz P.W. 8. Muhammad Ayub (not produced) a brother of the petitioner was also with him. They heard the cries of a boy coming from the Baithak of the respondent and the Baithak was closed. They knocked at the door and saw the respondent No. 1 rushing out of the house from the main entrance. They went inside the Baithak and found Nadeem Akhtar P.W. 6 aged 7 years son of the petitioner present who had been subjected to sodomy and was weeping and crying. Muhammad Akhtar took the boy alongwith him, met Rab Nawaz A.S.I. (P.W. 9) on the way to the police station and made a report of the occurrence charging respondent No. 1 for the offence. A formal First Information Report was registered at Murree Road Police Station on the statement so recorded by Rab Nawaz.

Dr. Nasir Mahmood (P.W. 4) examined Nadeem Akhtar and made the following statement with regard to the condition of the boy:‑‑

"He was a boy of seven years of weak built. On examination of clothes (paint) grey coloured stained. No injury on the buttocks and on knees. On his local examination, anus is wet and congested. Margins were inflamed and red. His annal margins injuries: ‑‑Mucosal laceration present one at 12 'clock position, one laceration at 10 O'clock position and one laceration at 6 o'clock position.

In my opinion unnatural sexual offence (sodomy) has been committed with him. However, to confirm three annal swabs are being sent alongwith paint to the Chemical Examiner Punjab, Lahore for detection of semen and blood. Exh. P.C. is the correct carbon copy of my medical legal report which is in my hand and signed by me. A copy of medico‑legal report, alongwith a sealed phial, one sealed envelope and one paint were handed over to the accompanied police.

I have seen both the reports of Chemical Examiner, which are positive, so it is confirmed that the unnatural sexual offence has been performed with Nadeem Akhtar."

The respondent was arrested on the 30th of December, 1983. He was also examined by Dr. Nasir Mahmood the same day who found him normal and capable of performing sexual intercourse.

The respondent denied his involvement in the occurrence. He claimed to be innocent and alleged that he had been falsely implicated on account of a dispute over the hand of one Mst. Rashida, his relative. He was cross‑examined by the Public Prosecutor under section 44 of the Qanoon‑e‑Shahadat and produced two witnesses in defence who stated about his innocence and also stated that no such occurrence had taken place on the day and at the time stated by the prosecution witnesses. Instead they alleged enmity and dispute between the father of the respondent and the petitioner.

The trial Court found that the offence under section 12 of the Ordinance was matte out on the allegations convicted the respondent for the same and took a lenient view as he was a "first offender and hardly about 18‑19 years of age". He sentenced him to fifteen years' R.I. and a fine of Rs.10,000 and in default to undergo further R.I. for two years. He was also awarded fifteen stripes. The respondent was also found guilty by the trial Court of the offence under section 377, P. P. C. and was sentenced to ten years' R. I. and a fine of Rs.10,000 or in default to undergo R.I. for two years. Both the sentences were ordered to run concurrently.

On appeal of the convict and a petition for revision filed by the petitioner, the Federal Shariat Court came to the conclusion that the offence under section 12 of the Ordinance was not made out and it was only offence under section 377, P.P.C. that was established. Taking the same factors in view i.e. the young age of the convict and his being the first offender, the sentence was reduced for the offence under section 377, P.P.C. to five years' R.I. and the fine to Rs.2,000 or in default one year R. I.

The petitioner now seeks the restoration of the conviction of the respondent under section 12 of the Ordinance and a sentence of life imprisonment for the same. He also seeks enhancement of the sentence under section 377, P.P.C. on the ground that victim was of a tender age and he had been brutally dealt with by the respondent.

It is borne out from the evidence and has been held by both the Courts that the removal of Nadeem Akhtar was of only a few paces and that its object and purpose was to commit sodomy and not at all to remove or take away the child from the lawful guardianship. It was removal from the lane to the Baithak a matter of few paces. We have in a recent decision Shamas Saeed Ahmad Khan v. Shafaullah and another (Criminal Appeal No. 17(S.) of 1983) dealt with this legal issue in the following words‑‑

"As regards the other charge, criminal liability under section 12 of the Ordinance, like other offences of the category, depends on the existence of the intention or reasonable knowledge of the person accused of the crime. If the intention be to kidnap or abduct for the specified purpose, or kidnapping or abduction is coupled with the reasonable knowledge of the likelihood of the specified purpose then the offence will definitely fall under section 12 of the Ordinance. If, however, the intention be to commit the very act indicated as the purpose with no intention to commit kidnapping or abduction then merely because the victim was moved a few paces in terrorem or shoved along, for safe and unobtrusive achievement of the intended purpose will not make an additional offence under section 12 of the Ordinance."

Applying that test, the Federal Shariat Court correctly acquitted him on the charge under section 12 of the Ordinance.

As regards the conviction of the respondent under section 377, P.P.C. it is based on evidence. The sentence has been awarded by both the Courts keeping in view the young age of the respondent and, also the fact that he was the first offender. It is a legal sentence and, all the material factors relevant in the context having been considered," it does ‑not call' for interference in the exercise of our jurisdiction under Article 203‑F of the Constitution. Leave to appeal is, therefore, refused.

M. I. Petition dismissed.

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