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Criminal Revision No. 25 of 1951, decided on 17th July, 1951, against the order of Additional District Magistrate, Bhawalnagar, dated 31st December, 1950.

(a) Criminal Procedure Code (V of 1898), S. 439 (6)‑Peti tion for enhancement of sentence before Court‑Accused has right to prove that conviction is bad and he deserves acquittal.

In meeting the application for the enhancement of sentence the accused is competent to prove that his conviction was not properly recorded and he deserved acquittal.

(b) Criminal Procedure Code (V of 1898), S. 439‑Enhance ment‑Guilt under S. 366 Penal Code proved‑Lenient view taken for awarding sentence by Court‑High Court may enhance sentence.

The Magistrate definitely came to the conclusion that the guilt under section 366 Penal Code was brought home to the accused. But he sentenced the accused to one week's rigorous imprisonment and Rs. 50 as fine, in default of payment of fine to undergo one month's further rigorous imprisonment.

Held, that the Magistrate was guilty of grave indiscretion and imposed a ridiculous sentence. This was nothing short of derelic tion of duty. Such like cases are grave in their nature and their gravity must always be kept in mind by the Courts in administrating justice to the parties.

The High Court enhanced the sentence to 9 month's rigorous imprisonment with a fine of Rs. 50 and in default of payment of fine to one month's rigorous imprisonment.

Government Advocate, for Crown.

Nisar Ahmad, for Respondents.

This is a petition on behalf of the Crown for the enhancement of the sentences passed against the respondents under sections 366 and 379 Pakistan Penal Code each having been con victed and sentenced under section 366 to one week's rigorous imprisonment and Rs. 50 fine, in default of payment of fine to one month's further rigorous imprisonment while under section 379 each was sentenced to one week's rigorous imprisonment and Rs. 50 fine, in default of payment of fine to one month's further rigorous imprisonment.

The facts out of which the present petition has arisen briefly stated are that one Mst. Ilahi Sen a prostitute of Bahawalnagar had connection with Ata Muhammad respondent resident of Chah Dhong Wala at a distance of 3 or 4 miles from Bahawalnagar. She went and lived with Ata Muhammad off and on at his place and returned to her parents. About 17 or 18 days before the present occurrence she similarly went with Ata Muhammad to Chah Dhong Wala. As she was not allowed to return by Ata Muham mad to her home at Bahawalnagar, she sent a message to her father through Hafiz Mahmood to fetch her back from the house of Ata Muhammad. Ghulam Muhammad the father of Mst. Ilahi Sen in the company of his relative Khan Muhammad went on 23^rd f September, 1947 to the residence of Ata Muhammad to bring back Mst. Ilahi Sen. While they were bringing her towards Bahawalnagar they were followed by the respondents. When they reached the bridge Fordwah, they forcibly tried to take away Mst. Ilahi Sen from the possession of Ghulam Muhammad and Khan Muhammad, and in so doing they caused some injuries to them. Hue and cry having been raised by Ghulam Muhammad, Khan Muhammad and Mst. Ilahi Sen about 5 military men i.e., a Jama dar and four sepoys reached for the help of the woman and her companions; when Wali Muhammad respondent succeeded to snatch a pistol out of the possession of the Jamadar. The party of the respondents took away Mst. Ilahi Sen on a camel which they had brought with them arid the pistol was carried away by Wali Muhammad, Ghulam Muhammad the father of Mst. Ilahi Sen made a report on the same day at 3‑30 p. m. at Bahawalnagar Police Station. The loss of the pistol was reported to Major Pitafi who in the company of certain military men followed the respondent and recovered the pistol from the possession of Ata Muhammad at the place called Hota in the presence of the military men and the police men of the Police Station Kaboola. All the respondents were then arrested and produced before the Court to take their trial under the aforesaid sections. The defence story was that Ata Muhammad had connection with Mst. Ilahi Sen for a long time and she often went and lived with him at his place. She similarly went this time and contracted marriage with Ata Muhammad. This was disapproved by her father who in the company of these military men went to his place and forcibly tried to take away Mst. Ilahi Sen but she refused to go back. During the scuffle there the pistol of the Jamadar dropped and it was taken into possession by Walli Muhammad so that it could not be used against him and his companions. They in order to save them selves went to the Montgomery District and produced the pistol there. Their possession of the pistol was not a criminal act. The learned Magistrate came to the conclusion that the offences under section 366 as well as under section 379 Pakistan Penal Code were established and consequently he recorded the conviction of the respondents and passed the aforesaid sentences.

It was rightly contended by the learned counsel for the respondents that in meeting the application for the enhancement of sentence he was competent to prove that the conviction o his clients was not properly recorded and they deserved acquittal. It has therefore become essential for me to decide whether the conviction of the accused under both heads was rightly, recorded. I will first 'deal with the case under section 366 Pakistan Penal Code. Now there ate two stories before the Court. Firstly, that the, occurrence took place at the bridge named Fordwah and secondly at the place of Ata Muhammad. If it is established as was vehemently argued by the learned counsel for the respondents that the occurrence took place at the place of Ata Muhammad then certainly the case of the prosecution should fail and the respon dents should be acquitted, otherwise the conviction should stand. Now the main story of the defence was that after Mst. Ilahi Sen had come with Ata Muhammad she had willingly entered into a lawful marriage with him and this exasperated Ghulam Muhammad father of the Ilahi Sen who is a prostitute and he with the help of Imamud Din who had connection with Ilahi Sen and who was equally enraged by the union between Mst. Ilahi Sen and Ata Muhammad collected other military men and went to the residence of Ata Muhammad and they tried to take away Mst. Ilahi Sen for cibly. It is a fact that except this plea there is no evidence worth the name in support of it. There is no person of that Dhong who had appeared to support that story. The respondents who were so attacked made no report at the Police Station Bahawalnagar. They even did not make that statement in the Police Station Kaboola in the District of Montogomary. These facts clearly establish that the story advanced in defence by the accused was not established. The evidence on behalf of the prosecution consists of Mst. Ilahi Sen, her father, Khan Muhammad and military persons. There is not an iota of evidence on the file that Imamud Din had any connection with Ilahi Sen. If that was not established then there were no reasons for Imamud Din and his companions to make false statements on behalf of the prosecution. All the military men had unanimously deposed that they had reached the scene of occurrence on the hue and cry of Mst. Ilahi Sen. her father and Khan Muhammad. They had also testified to the fact that the respondents were forcibly taking away the woman and had succeeded to take her away. As I had already observed I can find no ground to discredit the evidence of these disinterested witnesses. If I accept their version then I cannot disbelieve Mst. Ilahi Sen, Ghulam Muhammad and Khan Muhammad. It was con tended by the learned counsel for the respondents that the evidence of the military men is of little value against his clients who were not known to the military persons and who were not asked to identify the respondents. I find a complete reply to this argument from the learned counsel for the Crown i.e., that the witnesses had deposed that some persons were snatching away Mst. Ilahi Sen forcibly out of the possession of two other persons. Mst. Ilahi Sen, Ghulam Muhammad and Khan Muhammad now the respon dents and had identified them and had testified to that fact in Court. The objection of the learned counsel therefore i. e., his clients were not identified by military men is of little force.

Mr. Nisar Ahmad further contended that the statement of Mst. Ilahi Sen should be disbelieved because she was under the influence of her father. This criticism of the learned counsel also does not appeal to me because I am convinced by the disinterested evidence of the military persons that Mst. Ilahi Sen was forcibly dragged and taken away. The statements of those military witnesses fully corroborate the testimony of Ilahi Sen, Ghulam Muhammad and Khan Muhammad.

Mr. Nisar Ahmad referred to the evidence of Hafiz Mahmood and contended that that contradicted the statement of Ghulam Muhammad. Indeed there is contradiction between the testimony of the two witnesses but I attach no importance to it. In my opinion whether Ghulam Muhammad went to bring his daughter of his own accord or at the information received by him through Hafiz Mahmood is immaterial. The crucial question for determination is whether he had gone to bring his daughter and had brought her and she was taken back forcibly by the accused while he was still on his way. This fact is proved beyond doubt, and the evidence of the prosecution in support of this story carried con siderable weight in the presence of the fact that the respondents were unable to substantiate their counter story in order to prove that their conviction could not be recorded. On facts my decision is in favour of the Crown. The next question is whether legally the offence is established. Now the ingredients of section 366 are :‑--

(1) Kidnapping or abducting any woman.

(2) Such kidnapping or abducting must be

(a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will ; or

(b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.

The second part of the section requires two things :‑

(1) By criminal intimidation or abuse of authority or by com pulsion inducing any woman to go from any place.

(2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse with some person.

Now it is abundantly established that Mst. Ilahi Sen was abducted. The question then is whether the second ingredient in the present case is established. This as already observed is divided under two heads:‑

(1) marriage of such person against her will, and

(2) forced or seduced to illicit intercourse.

As regards the first point the position of the respondents is that Mst.. Ilahi Sen had willingly entered into marriage ties and executed a document in support of it but the learned Magistrate has rightly rejected that evidence and I am perfectly in agreement with him. It was the case of the defence that the marriage was performed by one Fazal Shah but the document shows that Fazal Shah was not present and the so‑called Nikah Khan was one Allah Bakhsh. Mst. Ilahi Sen had deposed that she had not thumb marked any document in token of her marriage with Ata Muhammad. It was not proved by the defence that there was any thumb impression of Mst. Ilahi Sen on the said document. This evidence clearly proves that the first ingredient of part 2 of this section is established. As regards the second point it is true that Mst. Ilahi Sen had gone with Ata Muhammad willingly. Till her willingness Ata Muhammad was not guilty of any offence but as soon as she changed her mind to go away from Ata Muhammad and she was forcibly taken back to his house, the element of compulsions to have illicit intercourse with her came immediately into existence. My conclusions therefore are that both the ingredients which were necessary to bring the case within the ambit of this section were existing in this case. The conviction of the respondents therefore was rightly recorded. The question of sentence indeed needs my consideration. It cannot be denied that the learned Magistrate was guilty of grave in discretion in, this case and imposed a ridiculous sentence. It shows that while he definitely came to the conclusion that the guilt was brought home to the respondents he had no intention 'to impose proper penalty of law on them. This was nothing short of dereliction of duty. Such like cases are grave in their nature and their gravity must' always be kept in mind by the Courts in administering justice to the parties. I would therefore accept this petition and main taining the conviction of the respondents excluding Laloo who is not before me and who has not been served and against whom the case is not pressed by the Crown, enhance the sentence of Walli Muhammad, Ata Muhammad, Farid and Abdul Aziz to y months rigorous imprisonment with a fine of Rs. 50. In default of payment of fine to one month's rigorous imprisonment.

The next question for my consideration is the conviction of the respondents under section 379 Pakistan Penal Code. It is a fact that the pistol was recovered from Walli Muhammad alone consequently the others, could not be guilty for the possession of an unlicensed pistol. The Magistrate was wrong in recording the conviction of other respondents under this section. This was admitted by the learned Crown counsel. I therefore, maintain the conviction of Walli Muhammad under section 379 Pakistan Penal Code and enhance his sentence to three months' rigorous imprison ment and to a fine of Rs. 50. In default of payment of fine to fifteen days further rigorous imprisonment. In his case the sentence shall run concurrently. The others are acquitted for an offence under section 379 and their sentence is set aside. Fine if paid shall be refunded to them. The respondents shall surrender themselves to serve the sentence imposed on them, but excluding the period already served by them.

K. M. A. Petition accepted.

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