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Criminal Appeal No. 1 (Shariat) of 1985; in Criminal Petition No. 5-R (S)/1985, decided on 16th September, 1985.

(On appeal from the judgment, dated 23-12-1984 of the Federal Shariat Court, Islamabad in Criminal Appeal No. 131/L of 1984).

---Art. 203-F (2-B)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12--Penal Code (XLV of 1860), S. 361--Re-examination of evidence--Leave to appeal granted tore-examine evidence so as to see whether accepted principles of criminal justice have been followed in impugned judgment.

---S. 377--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12--Penal Code (XLV of 1860), S. 361, P.P.C.--Conviction under S. 377, P.P.C. based on ocular testimony and medical evidence- Entire material available on record having been perused by Supreme Court no principle of criminal justice was found to be infringed while accepting version of incident as laid forth by prosecution at trial- Conviction maintained.

---S. 12--Penal Code (XLV of 1860), Ss. 361 & 377--Conviction and sentence on charge of kidnapping or abducting in order to subject to unnatural lust--Plea that victim, boy of 7/8 years, had gone to house of accused himself where he was subjected to unnatural offence of sodomy and there was no element of "taking" or "enticing" him there by accused, repelled--Accused had deliberately asked victim to carry a kitten to his house, an animal which was normally loved by children and a young child of 7/8 years would naturally feel attracted to it, victim was thus induced and taken away by accused to his house and offence of kidnapping was established against him.

Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf P L D 1963 S C 51 ref.

Talib H. Rizvi, Advocate Supreme Court with Ali Imam Naqvi, Advocate-on-Record for Appellant.

M.M. Saeed Beg, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for the State.

Date of hearing: 16th September, 1985.

-This appeal, by leave of this Court, is directed against the judgment, dated 23-12-1984 passed by the learned Chief Justice of the Federal Shariat Court (sitting at Lahore) whereby the appeal filed before him by Muhammad Akram (the appellant herein) challenging the judgment of the Additional Sessions Judge, dated 22-7-1984 convicting him under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), and under section 377, P.P.C. was partly allowed and the sentence of 10 years' R.I. on the first count was modified and reduced to 9 years and 6 months' R.I. by giving him the benefit under section 382-B, Cr.P.C.

Niamat Ali (P.W. 4) who is the grandfather of a young boy of about 8 years, named Asif Riaz, lodged a report at 9 p.m. on 14th December, 1983 at Police Post, Ghazia Abad within the jurisdiction of Police Station Mustafabad, Lahore (which later on constituted the formal F.I.R.) that the appellant had committed sodomy upon his grandchild, in the following words:-

"I am living in Mohallah Darul Islam, Ghazia Abad for the last about 22/23 years. Today at about 6 p.m. I sent my grandson, Asif Riaz, son of Riaz Ahmad, aged about 7/8 years, a student of 3rd standard for delivering Maltas in the house of his maternal-uncle, Dildar Ahmad, who on his return to the house told him that while returning to his house, his neighbour, Muhammad Akram, son of Din Muhammad Lohar, resident of Lane No. 2, Mohallah Darul Islam, called Asif Riaz and desired him to carry a kitten to his house at which Asif Riaz went in the house of Akram for leaving the kitten there. He was followed by Muhammad Akram who then bolted the door from inside and thereafter removed the Shalwar of Asif Riaz and so committed sodomy with him. Asif Riaz returned to the house at which Niamat Ali himself came out of the house and found' Muhammad Akram running out from his house. He was also so seen by Muhammad Amin, son of Wazir Khan, caste Rajput."

The victim, Asif Riaz (P.W. 6) was medically examined by Doctor Ahmad Afifi (P.W. 5) the same day at 10.15 p.m. who deposed that the victim was a young boy of average built of about 8 years old and though he did not find any visible mark on his person but on examination of the ano-rectal region he noticed that all the anal and perianal region was red, congested and bruised. Ano-rectal fold were red and looking raw. He took two ano-rectal swabs and sent them to the Chemical Examiner for the detection of semen. The report (Exh. P.C.) received from the Chemical Examiner was positive in nature. He, therefore, opined that the victim was subjected to sodomy.

The accused, Muhammad Akram (appellant) was arrested by the Investigating Officer on 19-12-1983 and his examination for potency by the doctor showed that he was potent and capable of committing the alleged offence. On examination under section 342, Cr.P.C. he, however, denied having kidnapped the boy or committed sodomy upon him; on the other hand took up the plea that he was not in Lahore on the day of the occurrence, having gone to village Missin Collar in District Sheikhupura. With regard to the question why he had been implicated, his plea was that this was because of rivalry that existed between the parties over a- Deni Madrassa which he was running in his house (being a Hafiz-i-Quran) and the Masjid Committee of a similar Deni Madrassa being run in the nearby mosque of which the complainant was a member.

The prosecution at the trial examined 7 witnesses in support of its case. Besides the Police officials, the medical officer, Niamat Ali (P.W. 4), who had lodged the F.I.R. Muhammad Amin (P.W. 3), who though not an eye-witness of the actual occurrence but had allegedly seen the accused Muhammad Akram running from his house after the occurrence and Asif Riaz, the victim of the sodomy were examined; while the accused produced three witnesses in defence mainly to establish his plea of alibi.

The learned Additional Sessions Judge, Lahore, after taking into consideration the entire evidence led before him found the accused Muhammad Akram guilty on both counts, vide judgment, dated 22-7-1984 and, accordingly, convicted and sentenced him as under:-

(i) Ten years' R.I., with a fine of Rs.1,000 or in default to suffer further one year's R.I. plus whipping numbering ten stripes under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) ; and

(ii) Five years' R.I. with a fine of Rs.500 or in default to suffer further six months' R.I. under section 377, P.P.C.

Aggrieved by the above judgment, the convict Muhammad Akram appealed to the Federal Shariat Court. The appeal was heard by the learned Chief Justice who was pleased to allow it to a slight extent, namely, that the sentence on the first count was reduced by six months. However, his conviction on both counts was upheld.

Muhammad Akram feeling dissatisfied with the judgment-of the Courts below moved this Court for leave to appeal. This was granted on 20-2-1985 to re-examine the evidence so as to see whether "the accepted principles of criminal justice have been followed in the impugned judgment".

We have heard the learned counsel of both the parties at length and have also perused the entire material available on the record and are satisfied that no principle of criminal justice was infringed by the learned Courts below while accepting the version of the incident as laid forth by the prosecution at the trial. We have no doubt that Asif Riaz was subjected to sodomy by the appellant in his house and that he was rightly convicted under section 377, P.P.C. for his misdeed.

The only question which really arises and needs examination by us is that even if the version of the prosecution of how the incident occurred, namely, that the appellant asked Asif Riaz to take a kitten which he had with him and leave it at his house and when the boy went there he was followed by the appellant and then prevented from returning by the appellant who bolted the door from inside and proceeded to commit sodomy be correct whether the offence under section 12 of the Ordinance would even in these circumstances be established

Section 12 of the Ordinance does not define kidnapping or abducting. These offences are defined in sections 361 and 362, P.P.C. According to clause (b) of section 2 of the Ordinance the terms and expressions not defined in this Ordinance have the same meaning as in the P.P.C. According to section 12 of the Ordinance whoever kidnaps or abducts any person in order that such person may be subjected to unnatural lust of any person will be liable to be punished with death or rigorous imprisonment for a term which may extend to twenty-five years. Kidnapping as defined in section 359, P.P.C. is of two kinds; kidnapping from Pakistan and kidnapping from lawful guardianship. In this case Asif Riaz was kidnapped from lawful guardianship and according to section 361, P.P.C. kidnapping from lawful guardianship is committed by any one who "takes" or "entices" any minor under fourteen years of age if a male, out of the keeping of the lawful guardian of such minor without the consent of such guardian.

The question, therefore, arises whether, in the facts and circumstances of this case, Asif Riaz can be said to have been taken or enticed by the appellant to his house, where he was subjected to the unnatural offence of sodomy The submission on behalf of the appellant is that the boy had gone to the house of the appellant himself and there was no element of taking or enticing him there, by the appellant.

A somewhat similar situation arose in the case of Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf P L D 1963 S C 51. In this case Christa Renate had left her matrimonial residence and joined her paramour (Lt.-Col. Yusuf) and it was argued that in such situation Lt.-Col. Yusuf, the respondent, could not be said to have taken or enticed her away. The argument was repelled by this Court and it was observed:-

"The mere fact, moreover, that he did not himself actually go to the house of the complainant to take away the lady but that she joined him, by arrangement, while he himself stayed at the house of Lt.-Gen. Rana, does not lead to the conclusion that he was not "taking" her away."

It was also observed that:-

"There was obviously a strong influence emanating from the respondent and operating on the lady's mind (which may be also co-operating with her inclination), to leave her husband's house, all the time. We are, therefore, convinced that the respondent was guilty of "enticing" and "taking" away Christa Renate from the house of her husband, at Lahore."

In the instant case the accused had asked the victim to carry a kitten to his house. The accused deliberately chose to ask the victim to carry his kitten, which is an animal which is normally loved by children and a young child of 7/8 years would naturally feel attracted to it. The boy was thus duped to go to the house of the appellant where he was subjected to his unnatural lust. He was, in our opinion, "enticed" and "taken" away by the appellant to his house and thus the offence of kidnapping was established against him.

The result is that there is no force in this appeal which is, accordingly dismissed hereby.

M.I. Appeal dismissed.

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