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Criminal Appeal No.7 (S) and Jail Petition No.5‑R (S) of 1984, decided on 29th April, 1986.

(On appeal from the judgment/order of the Federal Shariat Court, Lahore, dated 10‑3‑1984 in Criminal Appeal No. 116/L of 1983).

‑‑‑Ss. 10 (3) & 11‑‑Appeal against conviction and sentences‑‑Prosecutrix admitting that she had not raised any alarm nor made any effort to escape, despite ample opportunity‑‑Prosecutrix remained with another person and did not go to her parents' house after having escaped‑‑Her conduct showing that she was not forcibly abducted‑‑Medical evidence indicating her age 18 years‑‑Probability being that prosecutrix was a consenting party, conviction under S.11 set aside and that under S. 10(3) altered to one‑under S 10 (2) and sentence reduced.

M. Bilal, Advocate Supreme Court with Aitzaz Ahsan, Bar‑at‑Law (absent), Mahmood A. Qureshi, Advocate‑on‑Record for Appellant.

Ch. Ghulam Ahmad, Advocate Supreme Court with Rao M. Yousaf Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 29th April, 1986.

These two matters Criminal Appeal No. 7 (S) of 1984 and Criminal Jail Petition No.5‑R (S) of 1984, arise out of the same judgment. They are being disposed of together.

2. Both the convicts in these matters are brothers inter se. The Criminal Appeal has been filed directly as of right.‑The matters are so connected inter se that it would be essential to hear the Jail Petition also as an appeal. Therefore, we convert it into an appeal and proceed to dispose it off accordingly.

3. These appeals are directed against judgment dated 10‑3‑1984 of the Federal Shariat Court; whereby the conviction under section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance (No.VII) of 1979, of Muhammad Rafiq appellant and sentence of 14 years' R.I. and 15 lashes awarded to him were upheld. And when dismissing the appeal of Muhammad Siddique from conviction under section 11 of the Ordinance the sentence of 14 years' R.I. 15 lashes and Rs.5,000 fine in default where of three years' R.I. was enhanced to life imprisonment, 15 lashes and Rs.5,000 fine in default whereof three years' R.I

4. The cases against the two appellants as contained in the deposition of Mst. Nasreen alias Naseem P.W. the prosecutrix, is as follows:‑

"I used to reside with my father at Khanewal. Siddique accused used to reside just opposite to our residence. Siddique accused took me on the pretext to take me to the house of my maternal uncle as my stepmother used to treat me with cruelty. I accompanied him but the said accused instead of taking me to the house of my maternal‑uncle, took me to his house at Kasur. The said accused committed rape on me while proceeding to Kasur. The said accused kept me in his house and thereafter he left the house for Khanewal. The other accused namely Rafiq now present in Court also committed rape on me during my stay in their house at Kasur. Hamid P.W. brought me to the house of my maternal‑uncle at Multan. My Khalu took me to Police Station, Khanewal. I made my statement before the police as well as before the Magistrate. I was also medically examined by the lady doctor."

5. It may be mentioned here that the result of the Chemical Analysis on the vaginal swabs was positive which shows that sexual intercourse was committed with Mst. Nasreen.

6. Under cross‑examination the witness admitted that she had boarded the bus for different journeys and also that when reaching Kasoor she had realised that the house did not belong to her maternal‑uncle. She also admitted that the house was situated within a populated Mohallah. Despite that she did not raise any alarm nor did she make any effort to escape notwithstanding that she had ample opportunity. She further admitted that it was eight days after she had reached Kasoor that Hameed P.W. came there and took her to her maternal‑uncle's house. It is also interesting to note that during the days she made statement in Court she was putting up with one Muhammad Aslam. She was unable to disclose where her father then resided. She admitted that she had never seen her father after the occurrence. She also admitted that her father never approached Muhammad Aslam for taking her back to his own house nor did she ask Abdul Hameed to take her to her parents' house.

7. All what has been reproduced above from the deposition of the prosecutrix shows that she was not forcibly abducted. The question remains whether she was more than 16 years of age or was a minor. On this point the evidence of the lady doctor is relevant. According to her when examined within a fortnight of the occurrence the prosecutrix was 18 years of age.

8. In these circumstances when it is more than probable that the prosecutrix was a consenting party the conviction under section 11 for abduction cannot be upheld. Accordingly we accept the appeal of Muhammad Siddique and acquit him. Muhammad Rafiq who has been convicted only under section 10 (3) also gets the benefit of the aforementioned consent of Mst. Nasreen and his conviction is converted into offence under section 10 (2) and the sentences is reduced to 7 years' R.I., 10 stripes and Rs.10,000 fine in default whereof he would suffer three years' R.I With these modifications the two appeals are partly allowed.

M.I. Appeals partly allowed.

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