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Criminal Appeal No. 684 of 1980, decided on 18th March, 1986.

‑‑‑Ss. 10, 11 & 16‑‑Appreciation of evidence‑‑Finding of acquittal of co‑accused under Ss. 11 & 16 and that of accused under S.10 of Ordinance not challenged by complainant or State‑‑Witnesses of abduction were disbelieved‑‑High Court finding additional reasons to disbelieve evidence regarding abduction‑‑In absence of any confirmatory circumstances such evidence, held, could not be accepted against accused.

‑‑‑S. 11‑‑Trial Court while disbelieving evidence regarding abduction seeking corroboration from statement of accused‑‑Trial Court while convicting accused, held, ignored principle that prosecution has to stand on its own legs.

‑‑‑S. 11‑‑Abduction‑‑Fact that at time of recovery abductee was living in same village at a distance of 400 paces from house of her parents and that she was reluctant to make any statement for four days spoke volumes against prosecution‑‑Evidence of abductee that co‑accused compelled her to marry accused was disbelieved by Trial Court‑‑In absence of any corroboration evidence of forcible abduction which had been rejected against co‑accused, held, could not be relied upon to convict accused‑‑Finding of Trial Court that by taking plea of elopement accused had conceded that abductee was enticed away by him out of lawful guardianship of her father was misconceived‑‑One of essential ingredients of offence of 'kidnapping from lawful guardianship' about age of abductee was missing‑‑Possibility of entering into marriage by abductee, who had attained puberty, with accused of her own not ruled out‑‑Accused acquitted in circumstances.

‑‑‑S. 11‑‑Medical evidence‑‑X‑Ray test may provide a basis for determining age of a person but it is not infallible and accurate and opinion based on such test cannot be regarded as conclusive.

Amjad Ahmad Sheikh for Appellant.

Malik Rehmat Khan Awan for the State.

Date of hearing: 18th March, 1986.

Alam Sher (19), son of Shabbir Ahmad, Naika (19/20), son of Saee; Ahmad (45), son of Wallia; Jagdev (23), son of Saee; Daulat (20), son of Said; Yousaf (35), son of Muhabbat; Muhammad Mansha (26) son of Daulat; Akbar (28) son of Daulat; Ali (30) son of Machia; Allah Yar (60/70) son of Wallia; Mst. Saboo (45) wife of Shabbir; Mst. Amiran (50) widow of Saee and Gulsher (16) son of Shabbir, all Wattoo by caste, residents of Chak No. 615/G.B., Police Station Tandlianwala, were tried by the learned Sessions Judge, Faisalabad, under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Alam Sher also faced trial under Article 10 of the said Ordinance. Vide judgment, dated 7‑6‑1980, Alam Sher was convicted under Article 11 of the Ordinance and sentenced to imprisonment for life and a fine of Rs.5.,000 or in default in the payment thereof to undergo further R.I. for two years. He was also sentenced to whipping not exceeding five stripes. He was, however, acquitted of the charge under Article 10 of the Ordinance. All his co‑accused were acquitted of the charges under Articles 11 and 16 of the Ordinance. Alam Sher has challenged his conviction and sentence through this appeal.

2. The occurrence took place on 23‑7‑1979 and it was reported by Muhabbat complainant at Police Station Tandlianwala on 13‑8‑1979. Initially the case was registered under section 363 of the P.P.C. The prosecution version as can be gathered from the file is that on 23‑7‑1979 at morning prayer time Mst. Zohra, her sister Mst. Saidan and her daughter Mst. Zubairan went out in the field to answer the call of nature. When they reached near the Charri field of one Peera, they found Alam Sher appellant and Naik accused standing there with a mare. Naika was armed with a pistol. Both of them overpowered Mst. Zubairan and made her to sit on the mare. Naika threatened Mst. Zubairan and her mother and aunt with the pistol. On their alarm, Amir, Abdur Rehman and Allah Ditta got attracted to the spot. Alam Sher took away Mst. Zubairan on mare's back while Naika started running with the mare. Ahmad, Yousaf and Jagdev accused armed with sticks joined them near the school bridge. Then all of them took Mst. Zubairan to the Dhari of Yousaf where she was confined in a Kotha for two nights. Allah Yar , Yousaf and Naika accused kept watch over her while Alam Sher stayed with her in the Kotha. Thereafter, Alam Sher and Naika took her in a car to a place in district Kasur where she was kept for 15/16 days. Thereafter, they took her to the Dhari of Daulat accused who compelled her under threats of death to marry Alam Sher accused. Alam Sher, Yousaf, Naika, Akbar and Mansha also compelled her for marriage and consequently her Nikah was performed with Alam Sher. She was kept at the Dhari of Daulat for 5/6 days and then Alam Sher brought her to his house in Chak No. 615/G. B. He had been committing Zina with her during the period of abduction. Mst. Saboo, Mst. Amiran, Gullu (Gulsher) and Ali accused used to keep watch over her at the house of Alam Sher appellant. On 16‑8‑1979 Aziz Ahmad A.S.I. recovered her from the house of Alam Sher appellant.

On the same day, she was medically examined by Lady Doctor Mrs. Nafees Akhtar. There was no mark of injury on her body or private parts. Her hymen was broken and the tears were old. On the same day she was X‑Rayed for her age by Dr. A. Hamid Sabir, Radiologist. According to him she was 16.

3. In support of its case, the prosecution examined 11 witnesses in all and its main stay is the testimony of Muhammad Amir, Abdul Rehman, Mst. Zohra and Mst. Zubairan.

4. The appellant pleaded not guilty to the charge. He denied the allegation of abduction .and stated that Mst. Zubairan P.W. voluntarily eloped with him. Later on there was a compromise between the parties in pursuance of which the Nikah of his sister Mst. Sughran was performed with Zawar Ahmad brother of Mst. Zubairan and in exchange Nikah of Mst. Zubairan was performed with him on 2‑8‑1979. He examined Abdul Munir Nikah, Khawan/Nikah Registrar and his own father Shabbir Ahmad in defence.

5. The learned trial Judge did not rely on the evidence of Muhammad Amir, Abdur Rehman, Mst. Zohra and Mst. Zubairan against the co‑accused of the appellant and acquitted them of the charges under Articles 11 and 16 of Ordinance VII of 1979. He also acquitted the appellant of the charge under Article 10 of the Ordinance as in his view the said charge was not established. As regards the allegation of abduction against the appellant, the learned trial Judge observed that by taking up the plea of elopement he did concede the fact that Mst. Zubairan had been taken and enticed away by him out of lawful guardianship of her father. He, therefore, convicted and sentenced the appellant as mentioned above.

6. Learned counsel for the appellant contended that the evidence regarding abduction having not been relied upon against the co‑accused, the same could not form a basis for the conviction of the appellant. He further argued that the evidence available on the record and the attending circumstances clearly indicate that Mst. Zubairan was an adult and she voluntarily entered into a marriage contract with the appellant, therefore, no offence was committed.

7. Muhammad Amir (P.W.3), Abdur Rehman (P.W.4), Mst. Zohra (P.W.5) and Mst. Zubairan (P.W.7) furnished ocular account regarding the incident of abduction. The gist of their evidence is that Alam Sher appellant and Naika who was armed with a pistol forcibly made Mst. Zubairan to ride the mare of Alam Sher who took her away and Naika started running with the mare. It will thus be noted that the role attributed to Naika was more grave than that of the appellant because he was armed with a pistol. The evidence of aforementioned P.Ws. against Naika has been rejected by the learned trial Judge and Mst. Zubairan's statement against other accused namely Ahmad, Yousaf, Jagdev, Daulat, Ali, Allah Yar, Mst. Saboo. Mst. Amiran and Gulsher was also rejected. The learned trial Judge has given cogent reasons for the same in the impugned judgment. His finding regarding acquittal of co‑accused of the charges under Articles 11 and 16 and that of the appellant under Article 10 of the Ordinance has not been challenged by the complainant or the State. Additional reasons for rejecting the statements of the wtinesses of abduction are that Muhammad Amir, Abdur Rehman and Mst. Zohra are witnesses of late appearance. The, alleged abduction took place on 23‑7‑1979. The F.I.R. was lodged on 13‑8‑1979 and Mst. Zubairan was recovered by the police from the house of the appellant on 16‑8‑1979. Muhammad Amir P.W. admitted that he did not appear before the police and his statement was not recorded during the investigation. Abdur Rehman and Mst. Zohra admitted that they made statements before the police after the recovery of Mst. Zubairan i.e. three days after the registration of the case. Furthermore, Mst. Zohra stated that 30/40 residents of the Chak also reached the spot and saw the occurrence while Muhammad Amir gave out that nobody from the Chak came to the spot during the occurrence. Mst. Zubairan stated that she did not see any other person being attracted to the spot on their alarm. In the absence of any confirmatory circumstances, the same evidence cannot be accepted against the appellant. It appears that the learned trial Judge sought corroboration from the statement of the appellant ignoring the principle that the prosecution has to stand on its own legs.

8. Mohabbat complainant admitted in cross‑examination that Mst Zubairan was handed over to him on the very day she was recovered from the house of Alam Sher. He further admitted that he had been taking her to the police station consecutively for four days and she made her statement on the fourth day. This fact lends support to the view that Mst. Zubairan was not willing to make any statement against the accused and was taken to police station again and again for that purpose. Mst. Zohran (P.W.5) who appeared in the witness‑box nine months after the occurrence admitted that her daughter Mst. Zubairan, the alleged abductee, attained puberty 3/4 years back. It is an admitted fact that at the time of recovery Mst. Zubairan was living in the house of Alam Sher situated in the same village at a distance of 400 paces from the house of her parents. Aziz Ahmad A.S.I. stated that Mst. Zubairan was present in the courtyard of the house of Alam Sher when he reached there. If it had been a case of forcible abduction or of marriage to which Mst. Zubairan was not a consenting party, she would not have been brought in the house of Alam Sher situated in the village of her parents. The fact that she was reluctant to make any statement for four days and was living in the same village in the house of the appellant speaks volumes against the prosecution. It will be noted that according to Mst. Zubairan, co‑accused Yousaf, Naika, Akbar, Mansha and Daulat who was armed with a gun compelled her to marry Alam Sher but all of them have been acquitted and her above statement against them has not been relied upon. In the absence of any corroboration, the evidence of forcible abduction furnished by the prosecution which has been rejected against other accused cannot be relied upon to convict the appellant. The observation of the learned trial Judge that by taking up the plea of elopement the appellant had conceded that fact that Mst. Zubairan had been taken and enticed away by him out of the lawful guardianship of her father, is misconceived. One of the essential ingredients of the offence of 'kidnapping from lawful guardianship' is that the minor girl must be under 16 years of age at the time she is removed or enticed away. In the instant case the alleged abduction took place on 23‑7‑1979. Mst. Zubairan was X‑Rayed by Dr. Abdul Hamid Sabir Radiologist on 16‑8‑1979 who stated that she was 16 years of age. An X‑Ray test may provide a basis for determining the age of a person but it is not infallible and accurate, and the opinion based on such test cannot be regarded as conclusive. In view of the facts and circumstances of the case, there is a reasonable possibility that Mst. Zubairan who had attained puberty 2/3 years prior to the alleged abduction, had entered into a marriage contract with Alam Sher of her own.

9. For the foregoing reasons, I allow this appeal, set aside conviction and sentence of the appellant and acquit him of the charge. He is on bail. He shall be discharged from his bail bonds.

H.A.K./241/L Appeal accepted.

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