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Criminal Appeal No. 3-K of 1982, decided on 2nd April, 1983.

---Ss. 10(2) S11--Hostile witness-- Corroboration--Prosecutrix allegedly recovered from accused--Statement under S. 164, Cr.P.C. recorded after 9 days of her recovery--Medical examination conducted after five days of recovery of prosecutrix--Vaginal swabs for detection of semen, not obtained--Witnesses of recovery of prosecutrix, contradicting each other--Medical evidence and recovery evidence found of no help to prosecution- -Statement of solitary hostile witness, uncorroborated by other circumstantial evidence, held, could hardly form basis of conviction--Accused acquitted in circumstances.

Syed Jahangir Hussain Shah for Appellant.

Ghulam Ali Agha for the State.

Date of hearing: 2nd April, 1983.

Hameed son of Sher Khan aged 25 years resident of Bahawalnagar was charged under section 11 of Ordinance VII or 1979 for abducting Mst. Zaibun Nisa and section 10 (3) of the said Ordinance for committing Zina-bil-Jabr with the said girl. He was tried by the learned Additional Sessions Judge-V, Hyderabad Division, Hyderabad and while acquitting him of the offence under section 11, convicted him under section 10 (2) of Ordinance VII of 1979 and sentenced him to 5 years R.I. and 30 stripes vide his judgment, dated 30th August, 1982. Through the present appeal Hameed has challenged his conviction and sentence.

2. The facts in brief are that on 19-9-1980 at 11-15 p.m. Syed Hamid Ali father of Mst. Zaibun Nisa went to Police Station City Hyderabad and lodged a report alleging therein that he alongwith his family resides in Hyderabad. He has a daughter namely, Zaibun Nisa aged about 13 years. He has employed Hameed Khan resident of Garnabad Moanabad District Bahawalnagar as his domestic servant and is thus working for the last 5 years. On 16-9-1980 he went to his Office leaving behind his wife and children including Mst. Zaibun Nisa. At the morning time his wife was busy in teaching Holy Qur'an and at about 10 a.m. she called her daughter Mst. Zaibun Nisa but she did not respond and Hameed the servant was also missing from the house. In the afternoon when he come back home he was informed that Hameed had taken Mst. Zaibun Nisa somewhere and that he has also taken a sum of Its. 3,000 in his name from Shahabuddin the owner of Venus Dry Cleaner. He was searching for his daughter when he was told by Chand, Bashir, Salahuddin and Abdul Razzak that they had seen his daughter Mst. Zaibun Nisa going alongwith Hameed at 10 in the morning. He reported that his daughter was minor, and has been enticed away by Hameed with the intention of marrying her or for having illicit intercourse with her.

3. This report was recorded by Ghulam Rasool then A.S.I. Incharge of the City Police Station, Hyderabad correctly which is Exh. 3/A. This witness recorded the statements of the P.Ws, on getting information that the accused had taken Mst. Zaibun Nisa to Punjab, took the complainant and went to Mcleod Gunj District Bahawalnagar, recovered the abductee alongwith the accused whom he arrested. After the completion of the investigation the challan was put in the Court where the accused was put to trial.

4. At the trial Hameed appellant denied the charge of abduction and rape and stated before the Court that he was not a servant of the complainant and was not residing in his house. He took contract of Rs.7,500 for masonary work, he completed his contractual job but was only paid Rs.2,500 and Rs.5,000 is yet to be paid by the complainant. He has repeatedly demanded for the payment of the outstanding amount from the complainant but he has refused to pay him because he was not satisfied with his work. On the day of his arrest he was wording near Buffalo Perri alongwith two labourers. He was not arrested from Punjab and the girl was not secured from his possession. He is innocent. In defence he produced three witnesses. The trial Court however, convicted and sentenced him as stated earlier.

5. The learned counsel for the parties heard. The only question which requires determination by this Court is whether the conviction of the appellant can be based on the statement of Mst. Zaibun Nisa a solitary and hostile witness unless corroborated by other unimpeachable evidence The learned trial Court was also confronted with the same question, and he was fully conscious of the situation. He had before him the statement of Mst. Zaibun Nisa a lone hostile witness but in his view the version of the occurrence given by the prosecutrix had been fully supported by the statement of Lady Doctor Mrs. Suraya Siddique (P.W. 3), the arrest of the accused and the recovery of the prosecutrix on the same day at Mcleod Gunj thus convicted him.

6. I on my part, after carefully examining the case, have, however, come to a different conclusion. I have no quarrel with the proposition that conviction can be based on the strength of the statement of a lone witness, he or she being hostile notwithstanding, provided that it is supported by other circumstantial evidence. Where the position is vice versa i.e. the statement of a solitary hostile witness in uncorroborated by other circumstantial evidence conviction will hardly be justified

7. In the instant case the version of the occurrence given by Mst. Zaibun Nisa she being the hostile witness simply cannot be believed. Now let us see how far and to what extent the other evidence produced by the prosecution in support of its case corroborates the tainted evidence of Mst. Zaibun Nisa. Mst. Zaibun Nisa was allegedly recovered from Bahawalnagar District on 21st of September, 1980. It is also alleged by the prosecution that the appellant was also arrested the same day at the same place. Ghulam Rasool P.W. who had affected the recovery of Mst. Zaibun Nisa and the arrest of the appellant deposed at the trial that he went to Punjab alongwith the complainant and on 21-9-1980 on getting information about the movements of the girl and the accused went alongwith the complainant and police force to Mcleod Gunj Police Station, Bahawalnagar and from near the police station he secured the girl from the possession of the appellant. Syed Hamid Ali P.W. the father of the girl, however, at the trial stated that he accompanied the police to Punjab and he was made to sit in Mcleod Gunj Police Station, and at 5-00 p.m. the police returned alongwith his daughter Mst. Zaibup Nisa. The version of the above two witnesses clearly indicates that at the actual time of recovery of Mst. Zaibun Nisa her father did] not accompany the police. If that be the case, one fails to understand as to how Ghulam Rasool P.W. had recognized and identified Mst. Zaibun Nisa or for that matter, the appellant.

8. It is not the case of the prosecution that as soon as Mst. Zaibun Nisa was recovered, she was taken to a Magistrate for recording her statement under section 164, Cr.P.C. or that she was got medically examined at Bahawalnagar. In fact her statement was got recorded a: Hyderabad, after about 9 days of her recovery and she was also got medically examined on 25-9-1980 again at Hyderabad. No explanation has been furnished by the prosecution as to why Mst. Zaibun Nisa was not got medically examined soon after her recovery at Bahawalnagar and why her statement was got recorded after 9 days of her recovery. Mst. Zaibun Nisa was involved in very serious crime and it was the bounden duty of the Investigating Officer to have got her medically examined at once and that her statement too should have been recorded without any delay. These lapse on the part of the investigation create doubt in my mind about the recovery of Mst. Zaibun Nisa and the arrest of the appellant from Punjab. In view of the above it will be hardly justified to hold that the recovery and arrest of Mst. Zajbun Nisa and the appellant corroborates the statement of Mst. Zaibun Nisa.

9. The other piece of evidence which has been pressed into service is the medical examination of the prosecutrix and the statement of the Lady Doctor at the trial. As earlier stated the prosecutrix was got medically examined at Hyderabad after about 5 days of her recovery. This medical examination too is of no assistance to the prosecution because the Lady Doctor did not obtain the vaginal swabs of the prosecutrix for the detection of semen. Thus, no material has been brought on the record by the prosecution to connect the appellant for committing sexual intercourse with Mst. Zaibun Nisa.

10. In view of the above, the other circumstantial evidence does not at all corroborate the ocular version given by Mst. Zaibun Nisa, and therefore, no case has been made out against the appellant under section 10 (2) of Ordinance VII of 1979. Thus by accepting his appeal. I acquit him of the charge. He has already been ordered to be released through my short order, dated 2-4-1983.

S. A./312/F Appeal accepted.

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