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Criminal Appeal No. 159/L of 1985, decided on 20th February, 1986.

‑‑‑S. 10(2)‑‑Zina liable to Tazir‑‑Abductee aged 22 years‑‑No violence exercised on her‑‑Torn hymen, quite old‑‑Vaginal swabs showing no r semen stains‑‑ Abductee having travelled to Bannu and back to Lahore in train with accused‑‑Not raising any alarm during journey‑‑No threat or coercion proved‑‑Statement of abductee before Magistrate exonerating accused, corroborated by medical evidence‑‑ Abductee, held, went with accused voluntarily or was in any case consenting party, prosecution had, therefore., failed to prove any case against accused‑‑Conviction and sentence was set aside in circumstances.

Iqbal Mahmood Awan for Appellant. Shah Nawaz Khan for the State. Date of hearing: 20th February, 1986.

The appellant was convicted by the learned Additional Sessions Judge, Lahore, on the 16th of June, 1985 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 4 years' R.I., with whipping numbering 30 stripes. He was also fined a sum of Rs.2,000. In default of payment of fine he was to suffer 6 months R.I. further. He has challenged his conviction and sentences through the present appeal.

2. The occurrence took place 18/19 days before lodging of the F.I.R. which was done on the 30th of October, 1982. Mst. Haneefan, P.W. 3, the mother of Mst. Parveen, the alleged abductee made a statement before Sanaullah, A.S.I. , P.W. 6 that the appellant his brother Hameed (since acquitted) and Marian (not challaned) come to her house and took away her daughter Mst. Parveen, aged 20/22‑in her absence. Mst. Parveen was apprehended on the 5th of November, 1982 near the Police Station, Gulberg. She was medically examined on the 6th of November, 1982 by lady doctor Razia, P.W. 1. Her statement was also recorded before a Magistrate. The Police then, after necessary investigation, challaned the case.

3. There were 6 witnesses examined in support of the prosecution case. Lady doctor Razia P.W. 1, who proved her medico‑legal report, stated as under:‑

(1) Clothes had been changed.

(2) No mark of injury on the body.

(3) Hymen had got an old big tear on posterior part.

(4) Vagina admitted two fingers easily.

(5) Two vaginal swabs were taken sealed and sent to the Chemical Examiner for detection of semen.

In my opinion she had been subjected to sexual intercourse. She was having menses at the time of examination. Exh. P.A./1 is the correct carbon copy of my medico‑legal report which is in my hand and bears my signatures."

In cross‑examination she stated that she could not give any idea about the age of the old tears, but stated that it could be 1/2 months. She further stated that inference can be drawn from her findings that no mark of injury were present on the body and no violence was committed during the sexual intercourse. Her opinion that she was subjected to sexual intercourse was based on the torn hymen.

4. Mst. Parveen herself appeared as P.W. 2. She deposed that Mst. Marine wife of the brother of the appellant was on visiting terms with her family, being neighbourer. On the day of the incident Abdul Majeed appellant came to her house and stated that his brother's wife was sick. Her father had gone out at that time for some labour and her brother was also not present. She was sick herself. Abdul Majeed appellant took her from her house to Bannu, Kohat on the pretext that his brother's wife was sick. There he threatened her with a knife and committed Zina‑bil‑Jabr. She was then brought back to Lahore. However, while they were passing near Gulberg Police Station, she raised alarm on which the Police arrested them. She went on to say that the appellant forcibly procured her thumb‑impressions on some papers. She admitted to have been medically examined at the instance of the Police and that her statement was also recorded by the Magistrate.

5. In her cross‑examination she stated that Abdul Majeed had come to her house at about 7/8 a.m. and took her to Bannu, Kohat by train. She admitted that there were many passengers present in the train and she raised hue and cry but no one was attracted. Rather, she was silenced by Abdul Majeed by giving her two slaps and show of knife. The parents, sisters and brothers of Abdul Majeed were also present in the house where she remained about 10/12 days. Thereafter, she was brought to Lahore by train in which many persons were also travelling. She, however, did not raise hue and cry on the return journey due to constant threat by Abdul Majeed. She admitted that:‑-

"It is correct that I and Abdul Majeed accused both went to the Police Station at our own. Police recorded my statement. I stated before the Police that Abdul Majeed accused told me that his brother's wife Mst. Maryum was ill. Confronted with Exh. D.A. where it is not so recorded." She further stated that "I did not state before the learned Magistrate that Abdul Majeed accused committed Zina‑bil‑Jabr with me as I was threatened by the I.O., not to make such a statement before the learned Magistrate as he was in league with the accused. I had not made the statement before the learned Magistrate voluntarily. The learned Magistrate did not ask me any question before recording my statement.

6. It is to be noted that the abductee is the only witness to incriminate the appellant and on whose evidence the conviction was recorded. She admits having made a statement before the learned Magistrate in which she did not level any allegation of offence against the appellant. She was at that time with Sanaullah, A.S.I. She further admitted that she was called by Abdul Majeed and went to Bannu with him. She remained there 10/12 days and came back with him. She further admitted that she went with Abdul Majeed appellant to the A Police Station of her own and got her statement recorded. It is, therefore, quite clear that she either went with Abdul Majeed voluntarily or was in any case a consenting party. No threat of coercion is proved to be there. In her statement before the learned Magistrate Exh. D.C., she stated that the appellant had not committed any excess or illegal act. The explanation given by him in Court about this aspect appears to be due to the influence of the prosecution. It is not believable that the A.S.I., who was accompanying her influenced her not to make any statement adverse to the appellant. The statement of the Magistrate as P.W. 4 shows that she made the statement voluntarily and independently.

7. The statement of the lady doctor also shows that no violence had been exercised on her. The torn hymen was quite old. The vaginal swabs did not show any semen‑stain as shown by the report of the Chemical Examiner Exh. P.G. Her statement before the Magistrate is, therefore, fully corroborated. She is also aged 22 years. In view of B the above and without going into the question of the validity of the marriage with Abdul Majeed, we are of the view that the prosecution failed to prove any case against the appellant. This appeal is, therefore, allowed and the conviction and sentences are set aside. The appellant is on bail. His bail bonds shall stand discharged.

S. A. Appeal allowed.

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