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Criminal Appeal No. 1224 of 1980, decided on 23rd February, 1983.

-- Ss. 376 & 366-Abduction -Rape-Prosecutrix on getting up when her charpai lifted-Waking up when accused covered about 30 karams-Her alarm not attracting any one-Raped by four accused by laying her on ground but no marks of violence found on her buttocks, elbows and back-Minor abrasions insignificant-Her statement about time of abduction self-contradictory-Close relations of prosecutrix not supporting prosecution case and declared hostile-Material contradictions in statements of prosecutrix, her father-in-law and her husband-Commission of rape by four real brothers improbable---Prosecution story, held, highly improbable and contradictory -Accused given benefit of doubt and acquitted.

Syed Sajjad Raza Jaffery for Appellant.

Khurshid Alam Ramay for the State.

Date of hearing: 23rd February, 1983.

Bahawal, Afzal, Sultan and Akbar sons of Sikandar were tried for the abduction of Mst. Begum and for rape on her. On 29th October, 1980, they were convicted under sections 366 and 376, P. P. C. by Mian Wasim Ahmad Nasir Bhatti, Magistrate Section 30, Mianwali. Each accused was sentenced to seven years' R. I. on the two counts. They were also awarded 20 stripes each under section 376, P. P. C. The convicts have come up in appeal.

2. Briefly the facts of the case are that the four brothers (accused) suspected Ahmad Khan of illicit relations with their sister Mst. Jindo and in order to avenge the insult, on the night between 27th and 28th July, 1975 they lifted the charpai of Mst. Begum his wife from the courtyard of her house, where she was sleeping near her husband. A few Karams away from them, Ahmad Khan's father, his uncle Samand Khan and Muhammad Shafi were sleeping. Lifting Mst. Begum's charpai they hardly covered a distance of about 30 Karams Mst. Begum got up. She raised alarm. Leaving her charpai there Bahawal accused carried her on his shoulder, they took her to the tube-well of Tagga Khan. After liting a lantern each accused raped. Thereafter, Bahawal accused took her to the house of Ghulam Rasool in village Rashidpur where Ghulam Rasool and his wife Bano kept a watch on her. In the morning Ahmad Khan, his father, Falak Sher, Samand Khan and Shafi went in search of Mst. Begum. They found her at the house of Ghulam Rasool where she had been confined. The occurrence was reported at Police Station Bhakkar, District Mianwali on 28th July, 1975 at 6.30 p.m. on the written report of. Mst. Begum. The matter was investigated. On 29th July, 1975 P. W. Lady Dr. Mst. Awan Niazi, 'Medical Officer, Civil Hospital, Bhakkar, examined Mst. Begum, and found three minor abrasions on her cheek, wrist and hand. Her nose was red and tender. There was a laceration on the inner side of the lower lip. The swabs were stained with semen. The accused were arrested and tried in due course.

3. At the trial, they denied guilt and ascribed the case to enmity. It may be mentioned at the outset that a highly improbable story has been, put up by the prosecutrix. I find it difficult, to believe her story that she did not get up when her charpai was lifted and she woke up when the accused had covered a distance of about 30 Karams that thereafter she raised an alarm. Again it was highly improbable that her alarm which attracted no one and she was carried a mile away to tube-well, where there were other persons. Further I find that at the tube-well the accused were said to have lit a lantern and she was raped by all of them while they lay her on the ground. Strangely enough, there are no marks of violence on her buttocks, elbows and back. The minor abrasions found on the finger and cheek are so trivial and thus insignificant. In a case of rape of a woman of about 25 years of age, struggle to defend her honour would show some signs Had she resisted, she would certainly receive a number of injuries on her buttocks, elbows and even on other parts of her body but no such evidence is there in this case. Moreover, the statement of Mst. Begun is self-contradictory. According to her it was morning prayer time when they had reached the tube-well of Tagga Khan. This timing did not fit in with the prosecution story that she was lifted at about mid-time. She further went on to say that after the four accused had raped her, she was carried to the house of Ghulam Rasool by Bahawal on his shoulder there Mst. Bano wife of Ghulam Rasool kept a watch on her. Thereafter her husband and the three eye-witnesses came there and rescued her. From whom they got the clue of Ghulam Rasool's house is not disclosed.

4. Another material aspect of this case was that close relation of the prosecutrix and of her husband namely P. W. 3 Samand Khan, uncle of P. W. Falak Sher and his "prosact" P. W. Muhammad Shafi did not support the prosecution case and were declared hostile. The version of these two witnesses was that there was a land dispute between Falak Sher and Bahawal. They, however, did say that Mst. Begun was missing one night but they saw her coming home on her own the next morning. Why should close relations turn hostile in a case of this nature when honour of the whole "bradari" is involved, it leaves one in doubt about the matter. Moreover, there are material contradictions in the statements of the prosecutrix, her father-in-law and her husband. P. W. Ahmad Khan, did not mention before the police that his wife had told him that she was carried on her cot, to a distance of 30 Karams when she woke up and was carried by Bahawal accused on his shoulder. He also did not mention that she had told him the name of the owner of the tube-well where she was taken to nor he mentioned about the litting of the lantern there. P. W. Ahmad Khan admitted in his cross-examina tion, that P. W. Muhammad Shafi lived nearly 35 miles away from his house and the house of P. W. Samand Khan was about 30 Karams from his house. However, there was no explanation as to why these two were sleeping near the house of Mst. Begun that night. Furthermore, accord ing to P. Ws. Ahmad Khan, Ghulam Rasool and his wife Mst. Bano had confined Mst. Begun whom they rescued and she narrated the rape story to them. On the contrary according to Ahmad Khan's father I'. W. 2 Falak Sher, when they went to the house of Ghulam Rasool, they enquired from Ghulam Rasool about Mst. Begum and in the meantime Mst. Begum came out on her own and narrated her story to them. Under cross-examination, he admitted that when they reached home, it was there that Mst. Begum narrated the story to them. P. W. Falak Sher in his statement before the police had not mentioned about having seen the cot by the eye-witnesses at some distance from the house. Before the police, it was not mentioned by Falak Sher that he asked from Ghulam Rasool and Mst. Bano about Mst. Begum. It was suggested to the witness during cross-examination that, in fact, one Amin Khan had abducted Mst. Begum and in connivance with one Bashir Khan, a local Zamindar, they had falsely roped in the accused with whom they had previous enmity on account of some litigation. It is noteworthy that Mst. Begum admitted previous litigation with Bahawal but her husband denied it. For four real brothers to have committed rape was again another improbability.

5. In view of the aforementioned analysis of the prosecution evidence, the prosecution story was highly improbable and contradictory, therefore, giving the benefit of doubt to the four accused, I accept their appeal and acquit them of the charges against them. They will be released forthwith not required in any other case.

M.B. A. Appeal accented.

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