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Criminal Appeal No. 1302 of 1979, decided on 4th February, 1981.

--- S. 410 read with Penal Code (XLV of 1860), S. 363/376--Appeal (criminal) -Prosecutrix residing in neighbourhood and her state ment finding corroboration from medical evidence as well as testi mony of other prosecution witnesses-Prosecutrix seen in company of accused and factum of her recovery fully established----Nothing to suggest complainant or abductee having any .enmity against accused to falsely implicate him in case--Conviction maintained, is circumstances.

Rana Abdul Hamid Khan for Appellant.

Wilayat Umar for A.-G. for the State.

Date of hearing: 20th January, 1981.

The appellant along with Mst. Sardaran and Zahida Parveen were tried by the learned Magistrate, Lahore; who vide his judgment dated 22nd November, 1979 acquitted Mst. Zahida Parveen and Mst. Sardaran while convicted 'Muhammad Asif appellant under section 366/376, P. P. G. and sentenced him to R. I. for seven years for each of the offences. The sentences of the appellant were however, ordered to run concurrently.

The appellant has assailed the order of his conviction and sentences by means of this appeal.

2. The relevant facts of the prosecution case are that on 26th January 1976 Muhammad Nazir lodged F. I. R. at P. S. Misri Shah, Lahore regarding the abduction of his daughter Mst. Nasreen. Consequently a case under section 363, P. P. C. was registered against the accused. The informant reported that his daughter Mst. Nasreen aged 13/14 years, on 25th January, 1976 at about dupeharwela had gone to the house of the accused situated in the neighbourhood on the asking of Mst. Sardaran and did not return home. He was later on told by Mst. Zahida Parveen and Mst. Sardaran that the abductee had gone with Muhammad Asif appellant and would be restored to him on her availability. She however was not restored and consequently he had to lodge the report. The abductee was however recovered on 28^thJanuary, 1976. she was produced before a Magistrate on 29th January, 1976, who recorded her statement under section 164, Cr. P. C. In her statement she narrated that she had gone to the house of Mst. Zahida Parveen appellant. Muhammad Asif was already present. She was taken by Muhammad Asif and Zahida Parveen on a tonga to get bangles for her and in this way brought her to general bus stand, Lahore. Mst. Zahida Parveen slipped away while Muhammad Asif took her to some unknown place where she was kept for three nights and during that time he raped her. She stated that she was being brought back to Lahore by bus which stopped at Bund Road where she alighted with the appellant and recovered by the Police.

She was medically examined on 29^thJanuary, 1976. As per medic, legal report, her hymen was found torn and healed. No marks of violence were, however, noticed on her body. The two vaginal swabs sent for chemical analysis were found stained with semen.

3. The prosecution produced Muhammad Nazir, the father of the abductee, who reaffirmed the version given by him in the F. I. R. Muhammad Murad P. W. 2 who joined the Police investigation and testi fied the recovery of the abductee and her shalwar P. I. in his presence. Mst. Surrayya, mother of the abductee also appeared as P. W. 3 and stated that she had learnt from her daughter Parveen that Nasreen had gone with Mst. Sardaran. In her cross-examination she stated that Mst. Zahida Parveen never visited her house and Mst. Nasreen never went to her house.

Mst. Nasreen was examined as P. W. 4. She reiterated her statement as earlier recorded under section 164, Cr. P. C. by the learned Magistrate.

Muhammad Azam P. W. 5 stated that he had seen the appellant and Mst. Zahida Parveen going along with the abductee on foot near a mosque. Naseer Ahmad was another witness of recovery of the abductee and shalwar P. I. Muhammad Afzal produced the birth certificate of the abductee Exh. P. D. which proved that she was born on 2nd October, 1961 and that she was about 14 years old on the day of her abduction. Bashir Ahmad, S. I. investigated the case and submitted the challan in the trim Court.

4. Learned counsel for the appellant contended that the evidence led in this case did not prove the guilt of the appellant beyond reasonable doubt. It was submitted that the appellant's case was not distinguishable from that of Mst. Zahida Parveen and Mst. Sardaran, who were acquitter' and he was also entitled to acquittal. It was submitted that the offence of rape was not proved because there was no evidence connecting the appellant with the commission of the crime. Lastly it was contended that the entire prosecution case was doubtful because the abductee was not produced before the learned Magistrate on 28th January, 1976 for recor ding her statement under section 164, Cr. P. C. the day she was allegedly recovered nor medically examined on that day.

5. Learned counsel for the State oil the contrary submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and he was rightly convicted and sentenced by the learned trial Magistrate. It way stated that the statement of the abductee in this case alone was sufficient to hold the appellant guilty of the offences committed by him.

6. I have heard learned counsel for the parties and perused the relevant record with their assistance. Mst. Nasreen, the daughter of the complainant was residing in the neighbourhood of the appellant. Her statement finds corroboration from medical evidence and the evidence of other prosecution witnesses. Muhammad Nazir, the father of the abductee had stated the factum of her abduction, Muhammad Azam had seen her in the company of the accused. Muhammad Nasir and Muhammad Murad P. Ws. testified about her recovery from the appellant. Nothing has come on the record to indicate that the complainant or abductee, had animus against the appellant to implicate him falsely in this case. No father would like to bring stigma on the chastity of his unmarried daughter with a view to implicate some one for the offence.

7. The appraisal of evidence done by the trial Court does not suffer from any infirmity. The ocular evidence finds support from medical evidence. The guilt of the appellant stands fully proved from the evidence on the record. The discrepancies pointed out by the learned counsel for the appellant are minor and not sufficient to vitiate the order of appellant's conviction. The learned trial Court rightly held the appellant guilty of the offences committed by him. The order of his conviction is, therefore maintained.

As regards, the quantum of sentence imposed upon the appellant, the learned trial Magistrate did not impose fine upon the appellant although it .gas mandatory under section 376, P. P. C. and thus he did not comply with the requirements of provision of section 544-A, Cr. P. C.

After notice to learned counsel for the petitioner, and hearing him on the point the petitioner is imposed a sum of Rs. 5,000 as fine, in default whereof to undergo R. I. for six months. In case the amount of fine is recovered, the same be paid as compensation to the prosecutrix.

In the result, this appeal fails and with the above observation stands dismissed.

Order accordingly

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