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Suo Motu Review No.1/L of 198'6 decided on 19th February, 1987.
--Ss. 10(3) & 11--Constitution of Pakistan (1973), Art. 203-E(3)- Trial Court while recording conviction against accused under S.10(3) of Ordinance VI' of 1979 acquitting him of offence under S.11 thereof on ground that victim could not have been abducted--Trial Court simply observing that evidence did not prove to hilt that accused abducted victim, without referring to evidence which led to this conclusion--Trial Court appeared to have assumed that victim had attained puberty and as such her physical removal could be termed as 'abduction' Charge was for kidnapping and not for abduction--Held, order of acquittal could not have been made without first determining whether alleged victim who had been described by doctor as being a minor aged 12/13 years, was minor or not and if she had not attained puberty then question of abduction would not arise--In such case it should be decided whether act of accused amounted to kidnapping in terms of S.361, PPC--Conviction and sentence of accused set aside and case remanded to Sessions Court for deciding it afresh in light of observations of the High Court.
Farooq A. Chaudhry, for Appellant.
Hafiz Ghulam Bari for the State.
Date of hearing: 19th February, 1987.
- We had remanded this case to the learned trial Judge i.e. Syed Muhammad Rafiq Shah, Additional Sessions Judge, Lahore, for re-deciding the case after framing charge for kidnapping. Later on it was brought to our notice that the charge was for kidnapping but the learned trial Judge had throughout in the judgment described the allegations against the appellant as 'abduction' presuming that the prosecutrix namely, Mst. Shahida had attained puberty. We had, therefore, by an order under Article 203-E (3) of the Constitution re-called the case for review which we proceed to decide.
2. We have heard the learned counsel for the parties and hold that the question involved in this case was whether the appellant was rightly acquitted by the learned trial Court of offence under section 11 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said ordinance) The appellant was charged both under sections 10(3) and 11 of the said Ordinance. The conviction was recorded under section 10 (3) only but the appellant' was acquitted under section 11 of the said Ordinance on the ground that she could not have been abducted. No good reason had been given by the learned trial Court as to how he arrived at this conclusion. There is only one sentence about this allegation and it reads as under:-
"However, the evidence does not prove to the hilt that the accused abducted Mst. Shahida P.W."
He has not referred properly to the evidence which led to this inference. The word 'abducted' has been wrongly used .by the learned trial Judge in the above quoted observations. It appears that the learned trial Judge presumed that the alleged victim had attained puberty and as such her physical removal could be termed as 'abduction'. But the charge was for kidnapping and not for abduction.
3. The order of acquittal could not have been made without first determining whether the alleged victim, who has been described by the lady doctor as being a minor aged 12/13 years, was minor or not. The learned trial Judge should have first decided whether the alleged victim had attained puberty or not. If she had not attained puberty then the question of abduction would not arise. In such case it shall have to be decided whether the act of the appellant amounted to kidnapping in terms of Section 361, PPC. Consequently we set aside the conviction and sentence and remand the case to the Sessions Judge, Lahore, who may try himself or mark it to any Additional Sessions Judge other than the one who passed the impugned order for deciding the case afresh in the light of above observations. The witnesses already examined need not be re-examined, but they may be recalled for further examination or cross-examination if so desired. The parties shall also be at liberty to adduce further evidence, if necessary.
4. The appellant is in custody and shall continue to be in custody till the final disposal of this case.
M.Y.H/360/F.Sh. Case remanded.
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