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Criminal Appeal No.97 of 1984, decided on 28th June, 1987.

---Ss.361 & 363--Circumstance of case though indicating that girl of fourteen years had gone of her own accord wile the accused, nevertheless accused having enticed away a female below age of sixteen, was guilty of offence of kidnapping and rightly convicted under S.363, P.P.C.

---Ss.375 & 376--Rape committed with girl below age of sixteen whether with or without her consent--Accused guilty of rape.

--Ss.363 & 376--Sentence--Trial dragging on for eleven years- Circumstances of case merited reduction in sentence--High Court in appeal reduced sentence of seven years' R.I. under S.376, P.P.C. to three years while maintaining sentence of three years under S.363, P . P . C .--Both sentences ordered to run concurrently and benefit of S.382-B. Cr.P.C. extended to accused.

Abdul Rashid Nizamani for Appellant.

Zaheer Qureshi for the State.

Date of hearing: 26th May, 1987.

Appellant Amanullah alongwith Mohammad Irfan was tried for the offences punishable under section 363 376 read with section 34 P.P.C. by the learned 1st Additional Sessions Judge, Karachi. He has been convicted under section 363, P.P.C. and sentenced to suffer R.I. for three years and to pay fine of Rs.5,000/- in default shall undergo R.I. for six months more. He has also been convicted under section 376, P.P.C. and sentenced to suffer R.I. for seven years and fine of Rs.5.000/- in default to undergo further period of six months. Both the sentences have been ordered to run concurrently. Mohammad Irfan co-accused has been acquitted. Amanullah has filed this appeal under section 410, Cr.P.C. against his conviction.

The case of prosecution in brief is that complainant Mohsin alongwith his wife, five daughters and two sons used to live in House No.11-E, 544 New Karachi. His daughter Mst. Alam Ara at that time was about 14 years old while other children were younger to her. On the night of 18-2-1973 complainant and other inmates of the house went to sleep on the upper portion of the house at 10-00 p.m. In the morning at about 8-00 a.m. complainant was informed by his wife that Mst. Alam Ara is missing. On this he made enquiries in the Mohallah and came to know that the appellant who used to live in his neighbour and was also missing. On further enquiries one Muhammad Ismail told him that he had seen Amanullah and Mst. Alam Ara going towards the bus stop at about 11-00 p.m. in the night. Complainant tried to search Mst. Alam Ara but his efforts failed. He went and lodged report at police station, New Karachi on 19-2-1973 at 1710 hours. Police on 22-3-1973 secured Mst. Alam Ara alongwith appellant Amanullah and co-accused Irfan. The case was challaned and finally appellant was convicted as stated above.

On 17-3-1980 charge was framed under section 363, 376/34, P.P.C. against both the accused to which they pleaded not guilty therefore the case proceeded and prosecution examined complainant Mohsin Ali Ex.5. He produced his F.I.R. as Ex. 6 P.W.2 Mst. Alam Ara, abductee as Ex. 7, P.W.3 Saeedul Hasan, Muhammad Ismail Lx. 9, Mukhtiar Ahmed Ex. 10, Dilawar Abbas Ex.12. Mazhar Ali Ex.14, P.W.8 Husanara Ex. 16, mother of Mst. Aslam Ara, A.S.I. Saeed Ahmed Khan Ex. 22. Dr. Hammeda Qureshi Ex. 26 Medical Officer who examined Mst. Alam Ara produced the medical certificate as Ex. 27. Appellant in his statement under section 342, Cr.P.C. Ex.29 denied the allegation and stated that he is innocent and parents of list. Alam Ara approached to his mother for the marriage but as a neighbour they had knowledge that character of family members was suspicious and not good therefore his mother refused this proposal upon which they were got him involved in the false and fabricate case. He has not examined any witness in his defence.

Complainant Mohsin Ali is not eye-witness of the incident. He has corroborated the version as given by him in the F.I.R. and stated that after taking meals they went upstairs for sleep at about 8.00 night while Mst. Alam Ara was present on the ground floor of the house and was doing household work. On the next morning they woke up and found that Mst. Alam Ara was not in the house. He went to search of his daughter to the house of appellant Amanullah. He met his Bhabhi Mst. Shakila who replied that appellant and one Irfan had come in his house. He then went to the house of one respectable person of the locality namely Abdul Wahid Farooqui and asked him to accompany him at Police Station. He advised not to go to police station because he wanted to search Mst. Alam Ara from the locality. However, at the advice of family members Mohsin Ali went and lodged report which he produced as Ex. 6. He has stated that he had accompanied the police in search of Mst. Alam Ara. When they reached at North Karachi near Godra Camp Bu, Stop they saw Mst. Alam Ara and accused Irfan and Amanullah with her. Police arrested all the three persons and brought them at police station. In his cross-examination he has denied to have given any proposal to the mother of accused relating to the marriage of Mst. Alam Ara with Amanullah. Mst. Alam Ara in her evidence stated that at the time of incident her age was 13-14 years. On the night of incident she was washing the untensils of her house when she heard knock at the door and saw appellant who called and told her that his Bhabi Shakila was ill and asked her to accompany there. She went where she found Shakila and appellant Amanullah who put off light of lantern and pressed her mouth. She resisted on which he replied that he was joking with her. Thereafter he asked her to lie down on which she also resisted then he took out knife and put her in a taxi and took her to Malir. Where she was kept two nights in house and Amanullah committed rape on the point of knife. She has stated that accused Irfan also came in that house. In the morning both the accused took her towards Cantt. Station but on the way she met her father who was with police officer. She narrated whole story to her father and police party. She was brought to the police station where her statement was recorded and was referred to Civil Hospital for examination. She has stated that police also secured clothes from her and accused present in the Court are the same. In cross-examination she has stated that she has not resisted or raised cries when appellant put her in taxi. She was put some contradictions from the police statement but these contradictions were not proved through Investigating Officer Saeed Ahmed A.S.I., who recorded statement of Mst. Alam Ara therefore no note can be taken of these contradictions. Saeedul Hassan Ex. 8 and Mazhar Ali Ex. 14 are the Mashirs of the arrest of accused and recovery of Mst. Alam Ara. Saeedul Hassan has produced Mashirnama as Ex. 8-A. They both have stated that two accused and girl was found present at Godra bus stop. P.W. Muhammad Ismail in his evidence has stated that on 18-2-1973 he was lying on the cot outside of his but when at about 10.00 p.m. he saw appellant Amanullah alighted from the taxi which had stopped outside his house. He saw Amanullah going inside the house while accused Irfan was sitting in the taxi. Amanullah brought one girl in Burqua thereafter they both sat in taxi and went away. On the following day on return from his work he met complainant Mohsin Ali who informed him that Amanullah and Irfan had kidnapped his daughter. He has stated that he could nut identify, the Burqua-clad girl who was getting in the taxi. Mukhtiar Ahmed Ex.10 has stated that he came to know that daughter of complainant had appeared at the police station alongwith her father. He alongwith Mohallah people went here and found Mst. Eram with her father, mother and one Tassadaq Hussain at the police station". He was shown pair of clothes by police and prepared such Mashirnama Ex. 11 which he produced. This witness was not cross-examined. Syed Dilawar Hussain has stated that he was shown by police one basket containing clothes such as under shirt, under wear, lipstic and ladies clothes, such Mashirnama as Ex. 13 was prepared. He has stated that he did not see accused Amanullah and Irfan at the police station nor police recovered clothes from girl or accused. Begum Saghir Husanara Ex. 16 is mother of the victim girl. She has stated that in the morning it was found that 'her daughter was not present and she was told by Mst. Anees Bhabi that Amanullah and Mohammad Irfan had taken away Mst. Alam Ara. Then her husband went to the police station and lodged the report and on the third day police secured her daughter from accused. She went to police station where her daughter informed that she had been forcibly taken away by the accused and kept her in wrongful confinement. Where they forcibly committed sexual intercourse against her wishes and torn her clothes before committing rape. A.S. I. Saeed Ahmed Ex. 22 is the Investigating Officer who recorded the F.I.R. and secured Mst. Alam Ara and arrested 'the accused. He recorded the statements of the witnesses and secured the clothes of Mst. Alam Ara and sent to Chemical Examiner. He produced the report of the Chemical Examiner as Ex. 24 and 25. Dr. Hammada Qureshi the Medico-Legal Officer at Civil Hospital Karachi who examined Mst. Alam Ara on 23-2-1973, sent by S.H.O. New Karachi Police Station, she has stated that Mst. Alam Ara who is young of average built and height. Her secondary sexual character were well developed and hymen had old tears at 2, 3 and 11'O clock position, Vagina admits one finger easily. In her opinion she used to sexual intercourse. She produce such certificate as Ex. 27. In the certificate the age of Mst. Alam Ara is given as 14 years. The Doctor was not cross-examined therefore it has been proved that Mst. Alam Ara at the time of incident was 14 years old and such fact is mentioned in the F.I.R. as well as Mst. Alam Ara has stated in the evidence.

Mr. Nizamani appearing for the appellant argued that on the same evidence co-accused Irfan has been acquitted and entire evidence against the appellant is of interested witnesses. It is contended that there are material contradictions in the evidence of the witnesses.

Mr. Zahir Qureshi appearing for the State has supported the conviction and submitted that prosecution has proved the case as there exists no enmity 'between the parties.

Complainant Mohsin Ali father of Alam Ara, Mst. Saghir Husanara are not the eye-witnesses of kidnapping. According to the F.I.R. complainant was informed by Muhammad Ismail who saw accused and Mst. Alam Ara going in a taxi. Mst. Alam Ara has been secured from Godra Bus Stand and both the Mashirs namely Saeedul Hassan Ex.8 and Mazhar Ali Ex.14 have supported the case. In respect of recovery of Mst. Alam Ara from the bus-stand alongwith accused Mashirnama as Ex. 8-A has been produced. The evidence of Mohammad Ismail is that he saw one lady in Burqa going with the accused. It is not stated that Mst. Alam Ara was with the accused. Mukhtiar Ahmed Ex. 10 is Mashir with the accused. It is not stated that Mst. Alam Ara was with the accused, Mukhtiar Ahmed Ex. 10 is Mashir of recovery of clothes of Mst. Alam Ara. He has stated that he has been shown pair of ladies clothes by police and such Mashirnama as Ex. 11 was prepared which is correct. Mashir Dilawar Ex. 12 is Mashir of. securing the clothes of accused .Amanullah and Irfan. He has not supported to the extent of recovery of clothes from the accused but stated that articles were shown by the police and Mashirnama Ex. 13 prepared is the same and bears his signature. This witness has also not been cross-examined. Mst. Saghir Husanara categorically stated that her daughter informed her that rape was committed on her by the accused. The report of the Chemical Examiner Ex. 24 has wrongly been produced as it relates to Crime No.42/73 of P.S. New Karachi. Whereas the F.I.R. of the present case was registered as Crime No.43/73. The report of the Chemical Examiner Ex. 25 is relevant. According to the report on article No.3 dirty white Chaddi of appellant, article No.5. Shalwar (violet silken) of Alam Ara and Shalwar (green silken) of Alam Ara the semen was detected. Mst. Alam Ara has fully supported the case. From the above circumstances it is clear that Mst. Alam Ara had gone with the accused on her own accord. The incident as alleged took place at 10.00 night. She has not raised cries while going with the accused. She was secured after three days from the bus stop in the city like Karachi in spite of that she did not raise cries while going with the accused. In these circumstances I do not believe this theory that she was taken forcibly from the house. Now the question arises whether appellant could be absolved from the charges of kidnapping in spite of the fact that Mst. Alam Ara was the willing party. The age of the girl has been proved to be 14 years and according to section 361, C.P.C. whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person -without the consent of such guardian, is said to kidnap such minor or person from lawful guardian, and if it proved then he is liable for conviction under section 363, P.P.C. Therefore the consent in the present circumstances when Mst. Alam Ara vas minor is immaterial. With regard to the rape in the same manner as provided under section 375 if rape is committed With or without tier consent when she is under 14 years of-age the accused is liable for punishment under section 376; P.P.C. From the Chemical Report it is clear that semen was detected on Chaddi of, appellant and clothes of Mst. Alam Ara, thus medical evidence gets support. According to the Medical report victim Mst. Alam Ara was not virgin. She remain with the accused for more than two days and she has admitted that rape was committed on her. With regards to the enmity by the accused that mother of victim proposed marriage with appellant, and on refusal the ease was filed is hardly believable. Further the F.I.R. of this case was immediately lodged and Mst. Alam Ara was recovered and there is no explanation for appellant about recovery and arrest. The entire evidence in this respect cannot be discharged when there is nothing to prove the allegation of defence which are unnatural and unbelievable.

Upshot of the above discussion is that the case of kidnap and rape, as contemplated under sections 361 and 375, P.P.C. read with sections 363 and 376 has been proved. In the result the appeal is dismissed. Looking to the circumstances of the case and long litigation as case was decided by the trial Court on 31st. July, 1984 i.e. after 11 years of the incident and all along the accused has suffered by attending Court and this appeal is also being disposed of after three years as such, the circumstances of this case requires consideration for the reduction of the sentence. I therefore reduce the sentence of appellant awarded under section 376, P.P.C. from seven years to three years but maintain sentence a/s 363, P.P.C. and order that both the sentences should run concurrently. Appellant is on bail. He shall be remanded to custody to serve out the sentence. Appellant is given benefit of section 382-B, Cr.P.C. The Jail Authorities should compute the period of appellant which he has remained in jail as under-trial prisoner or otherwise towards the substantive sentence.

K.B.A./A-139/K Sentence reduced.

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