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Criminal Appeal No.218/I of 1986, decided on 5th November, 1986.

‑‑‑Ss.10, 11 & 18‑‑Evidence, appreciation of‑‑Accused dragging away prosecutrix at a distance of 40 paces to sand dunes‑‑One of accused removing her Shalwar, forcibly laid her on ground‑‑Second witness corroborating her statement‑‑Prosecutrix subjected to lengthy cross-examination‑‑Nothing available on record to discredit her‑‑Nothing found to show any ulterior motive for giving false evidence‑‑Nothing even suggested to other witness to show his interest or any motive to give false evidence‑‑Occurrence not denied by accused‑‑Defence plea of false implication in place of actual culprits‑‑In spite of lengthy cross-examination of witnesses, accused could not shatter credibility of witnesses and there was thus no reason to attach any importance to defence plea in circumstances.

‑‑‑Ss. 10, 11 & 18‑‑Kidnapping‑‑Offence of‑‑Prosecutrix girl of 10/11 years of age removed from road to distance of 40 Karams to sand dunes‑‑Intention to outrage modesty of child‑‑Removal of child to such short distance, held, would not constitute offence of kidnapping in absence of any intention to remove child from custody of her legal guardian‑‑Conviction and sentence under S. 11 of the Ordinance set aside in circumstances.

Shams Saeed Ahmad Khan v. The State 1985 S C M R 1522; 1986 S C M R 533; P L D 1984 F S C 23 and P L D 1985 F S C 404 ref .

‑‑‑Ss. 10, 11 & 18‑‑Outraging modesty or attempt to commit Zina‑ Prosecutrix, girl of 10/11 years, made naked and laid on ground‑‑Accused did not remove his own Shalwar or tried to mount on her‑‑Accused, held, could not be said to have attempted to commit Zina with girl but outraged modesty of girl punishable under S. 354, P.P.C.,--Conviction and sentence altered accordingly.

Malik Rab Nawaz Noon for Appellants.

Ch. Muhammad Ibrahim for the State.

Date of hearing: 5th November: 1986.

.‑‑Appellants Ibrahim and Mansab were tried by Syed Tathir Hussain Shirazi, Additional Sessions Judge, Mianwali on charges under sections 11 and 10 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance). By his judgment dated 21‑7‑1986 the learned Judge convicted the appellants of the charges and sentenced them as under:‑--

(i) Appellants Ibrahim and Mansab under section 11 of the said Ordinance to life imprisonment, whipping numbering thirty stripes and also to pay fine of Rs.5,000 or in default of payment of fine to further undergo R.I. for two years each.

(ii) Appellant Ibrahim further sentenced under section 10(3) read with section 18 of the said Ordinance to R.I. for 121 years and whipping numbering thirty stripes.

They have filed this appeal jointly against the above conviction and sentences.

2. The allegation against the appellants was that 5/6 days before the date of F.I.R. 13‑6‑1984 Mst. Sutlan Bibi aged 10/11 years was going to her fields with cattle when the two appellants caught hold of her by her arms and took her about 200 feet away to sand dune and removed her Shalwar. The child raised alarm which attracted P.W.5 Muhammad Bilal and Khan Muhammad (not examined). On seeing these witnesses both the appellants ran away. During the struggle the shirt of the child was also torn.

3. The child went to her house and informed her father about the incident. The appellants are alleged to have tried to persuade the complainant not to go to police station to lodge the report. Complainant waited for 5/6 days, but ultimately lodged report on 13‑6‑1984. The F.I.R. was recorded by P.W.4 Gul Muhammad, A.S.I., who had also investigated the case. He recorded statements of the witnesses, arrested the appellants and after completing investigation the case was sent up for trial.

4. In support of the prosecution case following witnesses have been examined:‑--

P.W.1 Abdul Sattar A.S.I. had received complaint (Exh.P.A.) which was recorded by Gul Muhammad, A.S.I. (P.W.5). On the basis of the complaint the witness had recorded formal F.I.R.

5. P.W. 2 Mst. Sultan Bibi has fully supported the case and stated that both the appellants had dragged her by catching hold of her arm to a sand dune, 40 paces from the road where she was with her cattle, that Ibrahim removed her Shalwar, as well as his own and forcibly laid her on the ground, but on alarm being raised by her Muhammad Bilal and Khan Muhammad reached and that on seeing them both the appellant escaped. This child was subjected to lengthy cross‑examination, but the defence failed to discredit her. It was suggested to her that appellant Ibrahim had lodged a case against her father and uncle under section 325, P.P. C. The witness denied knowledge of any such complaint. No document has been produced by the defence to prove that any such complaint was lodged. No other suggestion whatsoever was made to they witness to show that she was interested or was giving false evidence due to any ulterior motive.

6. P.W.3 Amir Ahmad Khan, Constable, is witness of recovery of torn shirt from complainant by Gul Muhammad, A.S.I. This recovery was made at Harnoli Bus Stand, where complainant Mst. Sultan Bibi produced the torn shirt (P‑1) and her complaint was recorded by Gul Muhammad A.S.I. He has proved the recovery memo. (Exh.P.B.) which bears his signature.

7. P.W.4 Gul Muhammad A.S.I., was posted at P.S. Piplan on 13‑6‑1984 when the matter was reported to him by Mst. Sultan Bibi. He had recorded the complaint (Exh.P.A.) at Harnoli Bus Stand and sent it to the police station for registration of the case. He also secured the torn shirt (Exh.P.1), which was produced before him by the complainant and her father. He then recorded statements of the witnesses and inspected the scene of offence at the pointation of the alleged victim of this crime and prepared its site plan (Exh . P . C .) . On 15‑6‑1984 he arrested both the appellants. After completing investigation he sent up the case for trial.

8. P.W.5 Muhammad Bilal is an eye‑witness of the incident. He has deposed that he and Khan Muhammad were going to their village Bala from their fields in Chak No. 21/D.B. and that in the way near Chashma Link Canal they heard screams and rushed towards there and found appellants Mansab and Ibrahim catching hold of Mst. Sultan Bibi whose Shalwar was removed. He further stated that Mst. Sultan Bibi was laid on the ground and she was raising alarm and that on his exhortion both the appellants left the girl and ran away. He also saw that shirt of the child was torn. In cross‑examination he has admitted that he is paternal‑uncle of Mst. Sultan Bibi. Nothing was suggested to him in cross‑examination to show that he was an interested witness or had any motive to give false evidence against the appellants. No doubt he is related to Mst. Sultan Bibi, but this relationship by itself would not make him an interested witness.

9. Appellant Ibrahim has in his statement under section 342, Cr.P.C. stated that he has been involved due to enmity. His father had given beating to Mst. Sultan Bibi, because she had allowed her cattle to trespass on his fields some days prior to the occurrence. Appellant Mansab has stated that he has been implicated simply because of his relationship with appellant Ibrahim.

10. They have produced on witness Noor Khan (D.W.1) in defence to prove alibi of appellant Mansab. He stated that on the day of the incident this appellant was working as his tenant on his land in Goliwali village and that he had also stated before the police that Mansab was a thorough gentleman and was innocent. The evidence of this witness is of no avail, because it is very easy to bring such witnesses in order to prove the plea of alibi, From the cross‑examination of Mst. Sultan Bibi (P.W.2) it would transpire that the defence of the appellant during the trial was that the occurrence did take place, but the culprits were, not identified by the child. Her answer to such suggestion was as under:‑--

"It is incorrect that I could not identify the accused at the time of occurrence."

It would, therefore, appear that the occurrence is not denied by the appellants. According to them some unknown persons were concerned with this crime and that the appellants have been involved due to enmity. We have no reason to attach any importance to this defence plea. In spite of the lengthy cross‑examination to the witnesses, the defence counsel has failed to bring out any circumstance to shatter the credibility of Mst. Sutlan Bibi and Muhammad Bilal P.Ws.

11. The question, however, is as to what offence is made out by the evidence of Mst. Sultan Bibi and Muhammad Bilal. The appellants had taken away Mst. Sultan Bibi from the road to a place about 40 Karams to the sand dunes. This distance might be about 200 feet or 100 paces. The removal of the child to such a short place would not constitute kidnapping, because there was no intention to remove the child from the custody of her legal guardian. The intention of the appellants at the most was to outrage the modesty of the child. In such circumstance the offence of kidnapping cannot be said to have been made out. Reference in this connection may be made to the case of Shams Saeed Ahmad Khan v. The State 1985 S C M R 1522, 1986 SCMR 533; P L D 1984 F S C 23 and P L D 1985 F S C 404, in which it has been held that removal of a child for a few paces with the intent to subject him/her to sexual lust would not constitute kidnapping. We, therefore, hold that the offence of kidnapping is not made out We, therefore, set aside the conviction and sentence awarded by the trial Court to the appellants on the charge of section 11 of the said Ordinance.

12. Now the question whether the appellants can be said to have attempted to commit Zina with the child. In the F.I.R. Mst. Sultan Bibi has stated that she was made naked and laid on the ground, but she did not say that any of the appellants had also removed his Shalwar and had tried to mount upon her. In her deposition she does state that appellant Ibrahim had also removed his Shalwar. She was, however, confronted with the relevant portion of the F.I.R. in which there was no mention of Ibrahim having removed his Shalwar. Under this circumstance it is difficult to hold that the appellants intended to commit Zina with the child. In several cases of this nature we have held that the offender at the most may be said to have outraged modesty of the female, which is an offence punishable under section 354, P. P. C .

13. Consequently we convert the conviction of the appellants under section 10(3) of the said Ordinance to section 354, P.P.C. and reduce sentence to R.I. for eighteen months and fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for three months each. Out of the amount of fine if recovered, Rs.2,000 shall be paid to the complainant' as compensation. While awarding the sentence we have already considered the period of detention suffered by the appellants during the trial. Hence no further benefit under section 382‑B, Cr. P. C . is called for. The appellants are in prison. They shall continue to be in prison to serve out the remaining sentence.

S. A. Appeal partly accepted.

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