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Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑---

-‑‑‑S. ‑10 (2)‑Rape‑Appreciation of evidence‑First information report lodged with delay of nearly five days‑Prosecution story of alleged victim having been taken against her will from L to General Bus Stand at F and from F to K by bus and from K to S by train, and again to Land then. again to F (all such places being in different districts)‑Hardly entitled to belief‑Finding of trial Court holding victim having eloped with accused appellant out of her own free will‑Correct‑Victim detained in police post for two days before getting her statement recorded under S. 164, Criminal Procedure Code, 1898 and Such fact indicative of victim being not willing to state as desired by Investigating Officer and such time having been availed .of in persuading her, or making her agreeable under pressure of relatives or Police‑‑Statement thus recorded not only not voluntary but victim not even making any allegation of appellant having committed rape with her‑Alleged abductee of victim also not tried for offence of rape‑Held, difficult in circumstances to arrive at positive conclusion of rape having in fact been committed by appellant with alleged victim during 5‑6 days' period of elope ment.‑[Rape‑Evidence].

Mian Ataul Haq for Petitioner...

Sh. Ziauddin for the State. .

Date of hearing : 6th May, 1980.

Ehsan Ahmad son of Us man Ghani has been convicted by the learned trial Court under subsection (2) of section 10 of the Enforcement of Hudood Ordinance, 1979, on the allegation that he committed zinc with Mst. Nighat Sultana, and sentenced to undergo rigorous imprisonment for a period of three years, five stripes and to pay a fine of Rs. 500 in default whereof further R. I. for three months has been ordered. His co‑accused Mst. Shahnaz Begum, Mst. Khurshid Begum, Irfan Ahmad (sisters‑ and brother respectively) and one Islam Din, in whose house at Lahore the offence had been committed, have been acquitted. The order of the learned trial Court, dated the 19th March, 1980 is being impugned in this appeal.

2. The case for the prosecution briefly stated is that. on the 9th of Moharramul Haram in the year 1979 Mst. Shahnaz Begum and Mst. Khurshid Begum sisters of the appellant came to the house of P. W. 9 Mst. Nighat Sultana, the alleged abductee, and suggested her to accom pany them for buying some clothes etc. from the Bazar. She left in their company and boarded a rickshaw from Mandi Chowk which was hired by Ehsan Ahmad appellant. In the way Shahnaz Begum, Mst. Khurshid Begum got down from the rickshaw and when Mst. Nighat Sultana P: W. 5 tried to alight the same the appellant held her by her arm and pointed out a knife towards her in a threatening mood. He took her to Faisalabad Bus Stand and went to Khanewal by bus. Enroute to Khanewal Ehsan Ahmad appellant had been threatening to Mst. Nighat Sultana that she would be killed if she raised alarm. When they reached Khanewal, the appellant took her to a house which belonged to his relatives who were ready to leave for Sibi. They also left for Sibi in their company and Ehsan Ahmad appellant kept her at Sibi for 3‑4 days and there he had been committing zina biljabar with her. Irlan Ahnrad (acquitted co‑accused) the brother of the appellant reached Sibi and then they brought her to Lahore to the house of Islam Din accused. She was also subjected to rape by Ehsan Ahmad appellant during the night they spent at Lahore. The appellant got her signatures on a blank paper under coercion and at the request of Mst. Nighat Sultana (P. W. 9) she was taken to Faisalabad from Lahore by bus, and at the bus stand, on seeing Amir Hussain and Nazir Hussain P. Ws. she raised alarm whereupon the Police apprehended the appellant and Mst. Nighat Sultana while Irfan Ahmad and Islam Din (acquitted co‑accused) had slipped away. The Police recorded her state ment and produced her before a Magistrate where her statement under section 164 of the Code .of Criminal Procedure was recorded.

On the 7th December, 1979 at 3‑40 p. m. Dr. Mrs. Nafis Akhtar medically examined Mst. Nighat Sultana (P. W. 9) and found her hymen broken, tear old healed, no mark of injury or contusion on her body. Her vagina admitted freely index finger. Her vaginal swabs were sent to the Chemical Examiner, which were found to be stained with semen vide Chemical Examiner's report Exh. P. R.

3. The occurrence took place on the 30th of November, 1979 and Muhammad Ibrahim P. W. 8, the father of Mst. Nigbat Sultana (P. W. 9) lodged the report with a delay of nearly five days i.e. on the 4th of December,. 1979, while the police station was only at a distance of one furlong: It is too much to believe that against her will Mst. Nighat, Sultana (P. W. 9) was taken to the General Bus Stand at Faisalabad, which is one of the busiest bus stands and that from there in a bus she was taken to Khanewal and then from there in a train to Sibi wherefrom she was brought to Lahore and then again taken by bus to Faisalabad,, and all this happened against. her will: I am in full agreement with the finding of the learned trial Court that she eloped with the appellant out of her own free will. The learned trial Court has given cogent reasons for arriving at such a conclusion and I need not reproduce the same.

But the above referred findings, by itself, do not exonerate the appellant. According to P. W. 6 Meharban Khan, A. S. I. he proceeded to Lahore for the recovery of Mst. Nighat Sultana on the 7th of December, 1979 at 3‑00 p. m. and came back to Faisalabad at 11‑00 p. m. and it is about 7 minutes after his arrival at Faisalabad Bus Stop that Mst. Nighat Sultana (P. W. 9) alighted from the bus and he apprehended her whereas according to P. W. 3 Lady Dr. Mrs. Nafis Akhtar she medically, examined Mst. Nighat Sultana at 4.00 p. m. on the 7th of December, 1979. This would show that the story of apprehension of the appellant on the 7th December, 1979 at sometime later than 11‑00 p. m. is a concoction, bare and simple. Before the statement of Mst. Nighat Sultana was recorded under section 164, Cr. P. Code she was kept in the Police Post for 2 days i. e. 7th and 8th December, 1979. as has been admitted by P. W. 6 Meharban Khan, A. S. I. The reason, the logic or the legality for the same is not understandable. She should have been produced before the Ilaqa Magistrate forthwith for the recording of her statement, if the same was thought necessary. Her detention in the Police Post for two days indicates that she was not willing to make statement as desired by tire Investigating Officer and this time was availed of in persuading her or making her agreeable under pressure of the relatives or the Police. Be that as it may, it appears that her statement under section 164 of the Code of Criminal Procedure was not recorded under some sort of influence, and was not made by her voluntarily. Nevertheless, in the same statement, she has not alleged that the appellant committed zina biljabar with her, and this is the earliest statement made by Mst. Nighat Sultana (P. W. 9) before a judicial authority. In this view of the matter when her main story of forcible abduction has been rightly disbelieved by the learned trial Court and I am of the view that her recovery‑story is also a concoction and when her statement under section 164 of the Code of Criminal Procedure despite being not voluntary, does not incorporate an allegation of zina and when Mst. Nighat Sultana, the alleged abductee, has not been tried for the offence of zina it is difficult for me to arrive at a positive conclusion that during the course of 5‑6 days' elopement period zina biljabar or zina was in fact committed by the appellant with Mst. Nighat Sultana (P. W. 9).

In such circumstances, by way of abundant caution, I would give the benefit of doubt to the appellant. His appeal is allowed and conviction and sentence is set aside. He shall be released forthwith if not wanted in any other case.

Appeal Allowed.

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