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Criminal Appeal No. 172‑L of 1984, decided on 7th February, 1985.

‑‑‑S.11‑‑Abduction‑‑Abductee seen by witnesses in bazar going in company of accused‑‑Taking away of abductee by force or by any deceitful means not found‑‑No use of force at that stage alleged‑‑Initially going of abductee from her house by use of any force, not alleged‑ Conviction of accused under S.11 set aside in circumstances.

‑‑‑S.11‑‑Abduction‑‑Police neither locating room, where abductee alleged to have been kept, nor person who was alleged to be sitting there when abductee was taken there by accused‑‑Place of abduction not specified‑‑Held, it was unsafe to hold accused guilty for kidnapping or abduction circumstances.

‑‑‑S.10(2) & (3)‑‑Alleged abductee going with accused in rickshaw and passing through bazar but making no effort of any kind to raise hue and cry‑‑Accused taking her towards bus‑stand but she made no effort of any kind to inform any one about her abduction though coming across numerous persons‑‑Case, held, fell under subsection (2) and not subsection (3) of S.10‑‑Sentence reduced from 10 years' R.I. to 5 years' R.I. plus 15 stripes.

Syed Kamal Mufti for Appellants.

Hafiz Ghulam Bari for the State.

Dates of hearing: 6th and 7th February, 1985.

‑‑The Additional Sessions Judge, Lahore vide impugned judgment dated 29‑9‑1934 found guilty Muhammad Tariq and his mother Mst. Razia under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo imprisonment for life plus 10 stripes and a fine of Rs.1,000 or in default of payment of fine further R.I. for one year. The trial Court further held Tariq accused guilty under section 10(3) of the Ordinance and sentenced him to undergo R.I. for 10 years plus whipping numbering 10 stripes. Both the substantive sentences awarded to Tariq accused were ordered to run concurrently. The trial Court, however, acquitted Noor Muhammad co‑accused under section 265‑K, Cr.P.C. Both the convicts have challenged their convictions and sentences through the present appeal.

2. In support of its case the prosecution produced 8 witnesses. Muhammad Sadiq (P.W.1) is the father of the abductee and complainant in this case. He has deposed that on the day of occurrence i.e. 30‑10‑1983 at about 7/8 p.m. when he returned home after his work, he found that his daughter Mst. Gulzar was not present in the house. He made inquiry about her from the Mohallah. In the Chowk of this Mohallah, Abdul Sattar and Lal Din P.Ws. met him and told him that they had seen his daughter Mst. Gulzar going with Mst. Razia accused. According to him, after this, he had been searching for his daughter but she could not be traced out. Next day i.e. on 31‑10‑1983 at 11‑00 a.m. he reported the matter to the police and made statement Exh. P.A. before the Thanedar. After the report, he continued the search for his daughter. On 3rd or 4th day after the registration of the case when he was searching his daughter at Lahore Railway Station, he saw Tariq accused alongwith his daughter Mst. Gulzar boarding a bus. His daughter saw him and raised noise. He rushed towards her and many people gathered there on hearing the noise. He with the help of the other persons caught both Tariq accused and his daughter Mst. Gulzar P.W. and brought the accused Tariq and his daughter to Samanabad. Near roundabout Samanabad, Muhammad Ashraf, Thanedar alongwith two constables met them and the complainant handed over Tariq accused and his daughter Mst. Gulzar to the said police officer. On the same day Shalwar P.1 which his daughter Mst. Gulzar was wearing was produced before the Sub‑Inspector after removing the same from the person of his daughter and the same was taken into possession by the police officer vide recovery memo. Exh . P. B. signed by him. The said Shalwar was sealed into a parcel. The complainant produced birth certificate Exh. P.C. of his daughter Mst. Gulzar before the police officer who took the same into possession vide recovery memo. Exh. P.D. signed by him. He was subjected to lengthy cross‑examination but nothing favourable to the defence could be brought on the record. He has deposed that Tariq accused had tried to run away on seeing him but he was apprehended by the persons who had gathered there. His daughter, however, did not try to run. It was three or four days after the incident that police handed over back to him his daughter because use they had got her medically examined. He denied the suggestion the police kept her for 5 days after her recovery. He has also denied the defence suggestion that he had agreed to give the hand his daughter in marriage to Tariq accused and Tariq accused given him about Rs.25,000 in this connection and that when he his mind, Tariq accused demanded back the money and he falsely implicated him in this case. It is also denied by him that no body had abducted Mst. Gulzar P.W. and he had fabricated the present case against the accused persons. He had also denied that birth certificate Exh. P.C. was forged one. According to him Mst. Gulzar Bagum was not major.

3. Lal Din (P.W.2) and Abdul Sattar (P.W.3) are Waj‑Takkar witnesses. According to them on the relevant date and time, they saw Tariq accused and Mst. Razia alongwith Mst. Gulzar Bagum P.W. passing by their side at the corner of Street No.5 at Punjpir Road. Lal din P.W. has deposed that on the day‑of occurrence at the relevant time he was standing on More of Street No.5 and Abdul Sattar P.W was standing with him and they were talking to each other. Sadiq P.W. came there and inquired from them as to whether they had seen his daughter Mst. Gulzar P.W. They told him that they had seen his daughter going with Tariq accused and his mother Mst. Razia. Abdul Sattar (P.W.3), has corroborated this witness.

4. The most important witness in this case is Mst. Gulzar Begum (P.W.4). She has deposed that she knew the accused and their names Tariq accused was son of Mst. Razia accused while Noor Muhammad acquitted co‑accused was maternal uncle of Tariq accused She has stated that on the day of occurrence at about 6/7 p.m. She and her younger brother were present in the house. Mst. Razia accused came to her house and told her to accompany her to Bazar for some purchases. She replied that she could not accompany Mst. Razia as there was no one in the house. Mst. Razia, however, insisted. On this she went with Mst. Razia and when they reached Bazar Samanabad, a rickshaw was standing there and Tariq accused was in that rickshaw. Mst. Razia accused asked the abductee to sit in the rickshaw but she refused and raised noise. On this Mst. Razia and Tariq accused gave beating to her and forcibly made her to sit in the rickshaw. They took her to an unknown place. In a room of that place, there was a person. Mst. Razia and Tariq accused made her to sit in that room and thereafter the said person and Mst. Razia accused went outside/ leaving behind Tariq accused and Mst. Gulzar P.W. alone in that room. During the night Tariq accused is alleged to have committed Zina‑bil‑Jabr with her. The Shalwar P.1 which she was wearing at that time became stained with blood. According to her, next morning Tariq accused and Mst. Razia accused forcibly got that Shalwar P.1 washed from her. They kept her in that room for 4/5 days. Thereafter Tariq accused was taking her somewhere. At a place where buses were coming and going, she saw her father standing with a person. On seeing her father, she raised alarm and rushed towards him. Tariq accused had tried to run away but he was apprehended by the persons present there and her father brought her to Bazar Ichhra wherea Thanedar and constables were present. The Thanedar brought them to police station, Samanabad where her statement was recorded. Next day she was produced before the Magistrate who recorded her statement under section 164, Cr.P.C. On the same day the police got her medically examined. She was subjected to lengthy cross‑examination but nothing favourable to the defence could be brought on the record. She has deposed in cross‑examination that she did not know Tariq accused before the incident and came to know his name in police station Samanabad. Her father also did not know Tariq accused. According to her Tariq accused had Churri with him when he committed Zina‑bil‑jabr with her. She denied the defence suggestion that she was major. According to her they had pleasant relations with the accused before this incident. It is denied by her that Mst. Razia accused demanded her hand in marriage with Tariq accused from her father and that Tariq accused had paid money to her father from time to time and that her father changed his mind and when Tariq accused demanded his money back he falsely involved them in the present case. It is further denied by her that next day of the incident, police apprehended them and kept them for 5 days and thereafter produced them before the Magistrate. She denied the suggestion that no body had abducted her and Tariq accused had not committed Zina‑bil‑jabr with her.

5. A.S.I. Muhammad Akbar (P.W.5) is the formal witness who recorded the statement of the complainant Sadiq P.W. Exh. P.A.

6. S.I. Muhammad Ashraf (P.W.6) is the investigating officer in this case. On receipt of Exh. P. A. he proceeded to the spot, prepared the site plan Exh. P.E. signed by him. He recorded the statement of witnesses under section 161, Cr.P.C. He searched for the abductee and the accused. On 5‑11‑1983 when he was present at roundabout Samanabad, Sadiq P.W. produced Mst. Gulzar and Tariq accused before him and he recorded the statement under section 161, Cr.P.C. He arrested Tariq accused. He took her Shalwar P.1 into possession vide recovery memo. Exh. P.B. He also got her medically examined. He also got Tariq accused medically examined. He got the statement of Gulzar P.W. recorded under section 164, Cr.P.C. before a Magistrate. On 16‑12‑1983, Sadiq P.W. produced birth certificate Exh. P.C. which was taken into possession by this police officer vide recovery memo. Exh. P.D. Mst. Razia accused was subsequently arrested as she was on bail earlier. According to this police officer, Noor Muhammad was found innocent during the investigation and therefore, was placed in column No.2 of the challan. In cross‑examination, it is stated by him that he did not seek opinion of the doctor about the age of Gulzar P.W. because her birth certificate was there. He has, however, admitted that Mst. Gulzar P.W. stated before him that Mst. Razia accused said to her many times that she would perform her Nikah with her son Tariq accused. He has admitted that he had not gone to the place where Zina was committed with Mst. Gulzar P.W. because she stated that she could not identify that place. He had also not taken Tariq and Mst. Razia accused to that place. According to him, it did not come to his notice during the investigation that Tariq accused was armed with anything at the time of occurrence. He has deposed that he had not investigated whether there was marriage proposal between Mst. Gulzar P.W. and Tariq accused. He has denied the defence suggestion that Mohallahdars appeared before him in defence of the accused and he intentionally had not recorded their statements.

7. Lady Dr. Akhtar‑un‑Nisa (P.W.7) on 6‑11‑1983 at 6‑25 p.m. medically examined Mst. Gulzar Begum and found the following observations:-

‑

"Examination for rape.‑‑ (1) No mark of violence was present on the body.

(2) Hymen was torn and tear was old.

(3) Vagina admitted two fingers easily.

(4) Two vaginal swabs were taken, sealed and sent to the Chemical Examiner.

Opinion.‑ She was subjected to sexual intercourse."

8. Dr. Khalid Jamil Akhtar (P.W.8) on 5‑11‑1983 medically examined Tariq accused and in his opinion there was nothing to suggest impotency and he was capable of performing sexual intercourse.

9. Tariq accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations. When asked why this case was made against him, he stated as under:‑

"There was a marriage proposal which was withdrawn by Sadiq P.W. Upon this I demanded my money amounting to Rs.25,000 from him which he had paid to the father of Mst. Gulzar P.W, for her hand in marriage with me and due to this he involved me in this false case."

Mst. Razia accused in her statement recorded under section 342, Cr. P. C. also denied the prosecution allegations and stated that she had been falsely involved due to her son Tariq accused. The accused persons had produced no evidence in defence.

10. The trial Court vide impugned judgment convicted and sentenced the present appellants as mentioned above.

11. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record

12. It is vehemently contended by Mr. Kamal Mufti that section 11 of the Ordinance is not attracted to the facts of the instant case and therefore, the conviction of the appellants under that section is liable to be quashed. Hafiz Ghulam Bari, the learned counsel for the State frankly admits this legal position. According to the F.I.R., the complainant Muhammad Sadiq while searching his daughter Mst. Gulzar met Lal Din and Abdul Sattar P.Ws. who on his inquiry told him that his daughter Mst. Gulzar was seen going in the company of Tariq, Mst. Razia and Noor Muhammad accused in the Bazar. They were talking. There is nothing to show that at that stage of the case, Mst. Gulzar was taken away by force or by any deceitful means. In fact no use of force was alleged at that stage. Thus so far the initial going of Mst. Gulzar from her house with the accused persons is concerned, there is no allegation of use of any force. The version given by Mst. Gulzar in her statement under section 164, Cr.P.C. and before the trial Court is slightly different. According to her, Mst. Razia accused who was already on visiting terms came to the house of the complainant and asked Mst. Gulzar to accompany her to the Bazar. In the Bazar, Tariq accused was already standing there. Mst. Razia asked Mst. Gulzar P.W. and Tariq accused to sit in a rickshaw. When asked where she was being taken Mst. Gulzar was informed that she should better keep quiet otherwise she will be murdered. Mst. Razia also sat in the same rickshaw. According to her 164, Cr.P.C. statement Mst. Gulzar did not know where she was taken. She was kept in a room where there was another person whose name or particulars are not known. She was kept for one night and she was subjected to Zina by Tariq accused against her will. Next morning Tariq accused took her towards Railway Station near the bus stand. However, according to her version before the trial Court, she was kept in the said room for 4/5 days. It was near the Railway Station where her father Muhammad Sadiq complainant was already standing. On seeing him, she raised alarm. Thus she was recovered near the Railway Station. The fact whether she was kept for one day in the said room or 4/5 days is not quite clear. Apart from her statement under section 164, Cr.P.C. where she has mentioned only one night, the complainant Muhammad Sadiq in his statement before the trial Court has created confusion. In dross‑examination he has stated as under:‑

"Three four days after the incident police handed over back to me my daughter because they had got her medically examined. One or two days after the recovery of my daughter police handed over her back to me. During these 1/2 days police got her medically examined and got recorded her statement."

A perusal of the above, shows that the suggestion of the defence might be true that Mst. Gulzar was kept in the room only one night not for 4/5 days and for the remaining period she remained with the police. So far the room where she was kept during the said night is a mystery. It is surprising that the police could neither locate that room nor the person who was sitting there when Mst. Gulzar was taken' there by Tariq and his mother Mst. Razia. It is admitted even by the State counsel that unless the place of abduction is specified, it is not safe to hold the accused guilty for kidnapping or abduction. The complainant and the accused are neighbours and were already on visiting terms to each other. The possibility that Mst. Gulzar was kept in a part of the same house cannot be ruled out. Another circumstance which supports this contention is the medico‑legal report of Mst. Gulzar. According to the lady doctor, the examine was found a pubert, as she was already having menstruation. As regards her birth certificate Exh. P.C., her date of birth is shown as 16‑4‑1969. The defence counsel however, doubts the bona fide of this certificate as it was produced before the police after 46 days of the occurrence. However, even this date of birth does not affect her puberty. According to the defence counsel, she was major at the relevant time. In the peculiar circumstances of the case, we find that the prosecution has not been able to establish the charge under section 11 of the Ordinance against the appellants satisfactorily. These circumstances clearly show that it was a simple case of elopement of Mst. Gulzar P.W. with Tariq accused. In this view of the matter, the conviction of the appellants under section 11 of the Ordinance is liable to be set aside.

13. As regards the conviction of Tariq accused under section 10(3) of the Ordinance, it is argued that even this conviction is not maintainable and the case at the most would fall under section 10(2) of the Ordinance. Reliance in this behalf is mainly placed upon the medical evidence of Lady Dr. Akhtar‑un‑Nisa Gillani who medically examined Mst. Gulzar on 6‑11‑1983 at 6‑25 p.m. According to the medical evidence, there were no marks of violence on her body. Hymen was torn and tear was old. The vagina had admitted two fingers easily. It is, in these circumstances, inferred by the defence counsel that Mst. Gulzar must be a consenting party and was already used to sexual intercourse. It is suggested that the possibility that she might be already carrying on with Tariq accused cannot be ruled out and, therefore, must be having sexual intercourse with him. Another circumstance which shows her consent is her own conduct. She went with the accused first in rickshaw and passed through the bazar but made no effort of any kind to raise hue and cry. Similarly in the room where she was kept for night, she could not get the assistance of any one. The most important circumstance in this regard is that on the next morning when She was being taken by Tariq accused towards bus‑stand near Railway Station, she made not effort of any kind to inform any one about her adduction. It is not denied even by the learned State counsel that from the room till she reached the railways station, she must have come across numerous persons but she kept mum during this period and did not disclose to anyone that she was being taken away forcibly or deceitfully by the accused. Confronted with these circumstances, the learned State Counsel admits that the case would fall under subsection (2) and not subsection (3) of section 10 of the Ordinance.

14. Mr. Kamal Mufti the learned counsel for the appellants has tried to argue that the prosecution case is false and the accused have been involved in the case because the complainant Muhammad Sadiq was not prepared to return Rs.25,000 which he had obtained from Tariq accused for giving the hand of his daughter Mst. Gulzar in marriage to him. We do not find any force in this contention. The prosecution case is established against Tariq accused through the testimony of Mst. Gulzar prosecutrix corroborated by the statement of her father Sadiq, 1,61 Din and Abdul Sattar P.Ws. Another important circumstance which goes against the defence is recovery of Mst. Gulzar Bagum P.W. and apprehension of Tariq accused together at the same time and puce. The version of the prosecutrix is further corroborated by her medical examination and the report of the chemical examiner which is positive. We are satisfied that Mst. Gulzar and Tariq accused eloped together and committed sexual intercourse with each other. The possibility that Mst. Razia mother of Tariq accused was not there cannot be ruled out because the prosecution tried to involve even Noor Muhammad vernal uncle) who was found innocent even by the prosecuting agency and placed in column No.2 and he was ultimately acquitted by the trial Court under section 265‑K, Cr.P.C.

15. In view of the above discussion the conviction of Tariq and Mst. Razia appellants under section 11 of the Ordinance are slot aside and they are acquitted of that charge. The conviction of Muhammad Tariq under section 10 (3) is altered to under section 10(2) (if the Ordinance and his sentence is reduced, to R.I for 5 years plus 15 stripes. Mst. Razia shall be released forthwith if not required in any other case.

M. A. K. Order accordingly.

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