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Criminal Appeal No. 42/K of 1984, decided on 5th March, 1985.

---Ss. 10(3) & I1--Penal Code (XLV of 1860), S. 452--Abduction or elopement--Complainant alleging forcible abduction of his sister by dragging her to distance of 250 paces in jungle--Accused identified in light of lantern--Hand of abductee promised to one of accused before her marriage to another--No marks of dragging found on Katcha path up to jungle--No remarks of violence on her body or private parts found- Quiet journey by her in bus--Lantern burning inside room while witness sleeping outside--Lantern not taken into possession by Police- Contradictions in F.I.R. and statement at trial about number of accused- Case of abduction or kidnapping, held, was not made out to fall within ambit of S. I1 of Ordinance--No evidence on record found to bring case under S. 452, P.P.C.--Accused acquitted of charge under both sections.

---Ss. 10(3) & 1 I--Penal Code (XLV of 1860), S. 452--Sexual intercourse- Doctor finding abductee subjected to sexual intercourse in past 6/7 days- Abductee recovered from accused and alleging to have subjected to sexual intercourse by one of accused-No valid marriage existing between them--Accused, held, guilty of committing sexual intercourse with abductee punishable under S. 10(2) of Ordinance-- Sentence under S. 10(3) was set aside and conviction under S. 10(2) of Ordinance recorded in circumstances.

Aftab Ahmad Alvi for Appellants.

Rashid Tariq Khan for the State.

Dates of hearing: 4th and 5th of March, 1985.

--The appellants have challenged the order, dated 19-9-1984, passed by the learned Vth Additional Sessions Judge, Hyderabad, convicting them under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and also under section 452, P.P.C. By the same order they were sentenced under section 452, P.P.C. to 5 years' R.I. each, with a fine of Rs.1,000 each. In default of payment of fine they were to suffer 3 months' R.I. each further. Under section II of the Ordinance VII of 1979 they were awarded life imprisonment each, with whipping numbering 30 stripes each and a fine of Rs. 1,000 each. In default of payment of fine they were to suffer 3 months' R.I. each further. Usman appellant was also convicted under section 10(3) and sentenced to 10 years' R.I. with whipping numbering 30 stripes. All the sentences were ordered to run concurrently.

2. The occurrence took place on the 11th of February, 1982 at about mid-night in the house of the complainant, P.W. 1, in village Ahmad Rajo, District Badeen. It was reported by Ramzan, P.W.1 on the 13th of February, 1982 at 11-30 a.m. to Ghulam Muhammad, A.S.I. P.W.6 at Police Station Taluka Golarchi that his sister, Mst. Bachan had been forcibly abducted by the three appellants and Allah Dino (not challaned), father of Usman and Mehar appellants. The complainant stated that he identified the accused in the light of the lantern, which was lit in the house and saw them forcibly drag Mst. Bachan to a distance of about 250 paces upto Jungle in which they vanished. The P.W., however, did not follow them further for fear.

3. Mst. Bachan was recovered on the 16th of February, 1982 at Bus Stop Sujawal, which is about 30/40 miles from Golarchi. She was taken to Golarchi and then Badin on the next day and produced before the Lady Doctor Razia Memon, P.W.5 for medico-legal examination. The Lady Doctor was told the age of Mst. Bachan as 16. She found that her clothes were neither torn nor stained and there were no marks of violence on any part of the body. On local examination she found as under:- -

"Genitalis: Pubic hair unshaved and matted. No bruises or laceration seen in vagina.

Hymen: Ruptured and one tear seen on the left side--tear with no bleeding--Vagina cavity about one finger dilated--Hymen is hypernic and tender. Menstrual bleeding per vagina..

In my opinion the act of sexual intercourse has been performed:"

The police then challaned the case.

4. The prosecution examined 6 witnesses in support of its case. P.W. 1, Ramzan, who is the brother of the alleged abductee stated the facts given in the F.I.R. Mst. Bachan, appeared as P.W.2. She deposed that her Nikah had been performed with her cousin Eiso, about two years earlier but 'Rukhsati' had not taken place as yet. She also produced her Nikah Nama Exh. 10-A. At the time of occurrence she was living in the house of her brother and father in village Ahmad Rajo. Allah Dino, the father of the appellant Usman had earlier demanded her hand for his son but her brother and father refused on the ground that she had already been wedded.

5. On the eventful night she was sleeping in the room of the house while her brother was sleeping outside. Her father was sleeping in the other room. At about mid-night she was awakened by the appellant Gul Hassan. She saw the three appellants in the lantern light and variously armed. They started dragging her on which she raised cries. Her brother Ramzan P.W.1, her father Hamzo and another brother Gul Muhammad came but the appellants threatened to kill them in case they came near. Meanwhile Mistri (not produced), Ali Muhammad, P.W. 3, and Lal Bakhsh (not produced) came running. The appellants threatened them also with life if they came near.

6. The appellants then took her away on the bullock cart inside the jungle. There, Usman forcibly committed Zina on her four nights in the jungle. She was then brought to Bus Stop Sujawal by appellants Usman and Gul Hassan. There she saw her brother Ramzan alongwith Ali Muhammad, Lakho and the police. She raised cries and grabbed her brother. The police arrested both the appellants and secured the custody of the witnesses. She also produced her statement as Exh. 10-B made under section 164, Cr.P.C., before the Magistrate and also identified her Shalwar as Article 2 which was smeared with blood and semen.

7. Ali Muhammad, who is the maternal uncle of Mst. Bachan appeared as P.W.3 to depose about the recovery of Mst. Bachan and arrest of the two appellants. He further stated that Lathi' Exh. 11-C was recovered from Gul Hassan and hatchet Exh. 11-B from Usman. He also testified about the arrest of Usman and Gul Hassan appellants.

8. Lakho appeared as P.WA He stated that the complainant Ramzan had shown him the place of Vardat'. It was a Katcha place in the house of the complainant. There were no foot-marks available at the Vardat'. The police prepared the Mashirnama' which he produced as Exh. 14-A. He, however, did not say anything about the recovery of Mst. Bachan or the arrest of the two appellants. He also did not mention anything about dragging of Mst. Bachan on the way upto jungle.

9. The statement of Lady Doctor Razia Memon, P.W.5 has already been referred to above. She also produced her medico-legal report Exh. 15-A. Ghulam Muhammad, A.S.I., who had investigated the case appeared as P.W.6. He testified about the arrest of the appellants and the recovery of the various weapons from them. All the witnesses were consistent and no substantial contradiction is noticeable in their statements. The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.

10. It is contended by the learned counsel for the appellants that the case of the prosecution suffers from many fatal defects and, therefore, the conviction is liable to be set aside. He has, particularly, referred to the age of Mst. Bachan. It was stated to be 16 before the Lady Doctor Razia Memon, P.W.5. The age according to Nikah Nama, produced by Mst. Bachan as Exh. 10-A should be about 17 on the date of occurrence. The age in Exh. 10-B (the statement under section 164, C.P.C.), is given as 17/18 years. It is argued that as the age of Mst. Bachan was more than 16 years, and as there was no marks of dragging and other violence on her person she was a consenting party to the elopement which is not as offence under section 361, Cr.P.C. The learned counsel also referred to her journey in bus for about 40 miles without raising any alarm noise or protest. He also pointed out that while the prosecution stated Mehar appellant to be armed with hatchet on the night of occurrence the arm recovered from him was a 'Lathi' EXh.ll-E.

11. We have gone through the record and find much force in the arguments raised. It is to be noted that according to Usman appellant and his brother Mehar the father and brother (P.W.1) of Mst. Bachan had promised her hand to Usman before her wedding with Eiso. It is, therefore, probable that she had developed some sort of affinity with Usman appellant and she eloped with him after her father and brother wedded her to another. The. fact that there were no marks of dragging upto Jungle through the path was Katcha and absence of marks of violence on her body or the private parts support the conclusion further. Even the quiet journey in the bus reinforces it. These facts further show that the occurrence had not been seen by any one. Firstly, the lantern was lit in the room while P.W.1 was sleeping outside as stated by Mst. Bachan. Further, the lantern was never recovered by the police at the time of investigation and was rather produced by the P.W.1 himself later. The contradiction in the F.I.R. that there were four persons at the time of raid and subsequent statement that they were three only also goes to support the defence plea. In this view of the matter and for the contents of the statement of Lakho, P.W.6 we are of the view that it was not a case of abduction or kidnapping to fall within the ambit of section 11 of the Ordinance VII of 1979. We further find that there is no evidence on the record to place the case under section 452, P.P.C. In this view of the matter, we set aside the conviction of the appellants under both the sections i.e., 452, P.P.C. and 11 of the Ordinance VII of 1979 and acquit the appellants of the charges thereunder.

12. The learned counsel then submitted that even charge under section 10(3) is not true for the reason that Mst. Bachan, aged 16/17 is stated to have eloped with her previous fiance. This contention may be correct but the conviction under section 10(2) may be justified for the reasons given hereinafter. It is to be noted that according to the Lady Doctor, P.W.5 the hymen of Mst. Bachan had a tear on the left side, though without bleeding and was hypernic and tender. The vagina cavity was also dilated and admitted one finger. The opinion of the Lady Doctor was that Mst. Bachan had been subjected to sexual intercourse in the- past 6/7 days. The contention of the learned counsel that the sexual intercourse might have been performed later at the instance of the police, for the reason that she remained with P.W.6 from 16th of February, 1982 till 20th of February, is. however, not believable. It is not a case of any of the parties and no such suggestion was put to him. Further, Mst. Bachan was taken in custody at Sujawal on 16th and her medical examination took place on 17th of February at Badin which is beyond Golarchi. In this view of the matter, we agree with the prosecution that Usman appellant committed sexual intercourse with Mst. Bachan while he had no valid marriage with her. In this view of the matter, though we set aside his conviction under section 10(3) of the Ordinance VI1 of 1979 yet convict him under section 10(2) of the same Ordinance and sentence him to a term of 8 years' R.I., with whipping numbering 30 stripes. He is also fined a sum of Rs.5,000. In default of payment of fine, he will suffer 6 months' R.I. further.

15. The other appellants Mehar and Gul Hassan shall, however, be released unless their detention is required in some other case.

S.A./335/F.Sh.C Order accordingly.

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