1988 P Cr (PLP)

Date of hearing: 6th November, 1982. Muhammad Anwar complainant lodged First Information Report (Exh.P.B.) on 29-3-1981 at Police Station Jahanian alleging therein that on 24-3-1981, at about Asar Waila, he went to see Malik Arshad Matela of village Tarin. He stayed there for the night on 25-3-1981. On his return to his house situated in Chak No.97/10-R, he was informed by his wife Mst. Amiran that during the previous night she alongwith her daughter Mst. Fazalan Bibi aged about 13 years and another daughter Mst. Sofia Bibi aged 18/19 years and son Said Ahmad aged 8/9 years was sleeping in the house and in the morning when she woke up she found that her daughter Mst. Fazalan Bibi was missing from the house. It was doubted that she was abducted. The complainant and his wife Mst. Amiran started the search of their daughter Mst. Fazalan Bibi. During the search, they met Muhammad Murad, Ghulam Hussain and Ghulam Qadir. On enquiry they told the complainant that they had seen Nazar Hussain appellant and his mother Mst. Saddan, taking away the abductee Mst. Fazalan Bibi towards bungalow Jahanian. The complainant claims to have made efforts for the return of his daughter through the Panchayat but without any success. He then lodged a report with the police. After the completion of the investigation the police challaned Nazar Hussain and his mother Mst. Saddan under section 363, P.P.C. and section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). They were tried by the Additional Sessions Judge, Multan.

2. In support of its case the prosecution produced 8 witnesses. Lady Doctor Mst. Zahida Khanum (P.W.1) medically examined the prosecutrix Mst. Fazalan Bibi on 1-4-1981 at 3 p.m. for age and rape. In the opinion of the Lady Doctor the prosecutrix had been subjected to sexual intercourse. There were no marks of violence on any part of her body. There was no metting of pubic hair seen and hymen torn. Posteriorly tear old. No pain. No bleeding. No tenderness and no oedema of edges seen. The vagina admitted two fingers easily. Four vaginal swabs were taken, sealed and sent to the Chemical Examiner for detection of semen. Shalwar of the prosecutrix was found stained with some secretion. So it was sealed and handed over to police for Chemical Examiner. Regarding the age the Lady Doctor advised X-ray. Dr. Asghar Hussain (P.W.8) on 12-4-1981, got X-rayed Mst. Fazalan Bibi and according to his report she was between 11 and 14 years. In cross-examination he admitted the variation about the age of 6 months on either side. Dr: Abdul Khaliq (P.W.5) medically examined Nazar Hussain appellant, on 31-3-1981 and found him potent. Muhammad Amin H.C. (P.W.2) recorded the formal F.I.R. (EXh.P.B.). He also got sealed parcel for keeping the same in the police Malkhana and handed over the said two parcels intact to Abdul Majeed, Constable (P.W.3) on 7-4-1981 for onward transmission to the office of the Chemical Examiner, Lahore. Abdul Wajeed P.W.3 handed over the two parcels intact in the office of the Chemical Examiner, Lahore. Mst. Fazalan Bibi prosecutrix appeared as P.W.4. She has supported the prosecution version. According to her at about Ishawela she went out from the house to ease herself. As soon as she came out from her house, she saw Nazar Hussain and his mother Mst. Saddan accused present outside her house. Nazar Hussain accused appellant is alleged to have caught hold of her while his mother Mst. Saddan accused placed her hand on her mouth and thereafter both the accused took her to village Tibba where she was kept at a Bhaini for 5 days. Nazar Hussain appellant is alleged to have committed rape with her there, while Mst. Saddan accused remained outside the room. She was taken by both the accused persons to Pull 114/10-R where the father of the prosecutrix alongwith police was present and she raised hue and cry which attracted her father and the police. Accordingly the police recovered her at the said Pull and also arrested the accused persons there. The police produced the prosecutrix before a Magistrate who recorded her statement. She was also medically examined by the Lady Doctor. In spite of lengthy cross-examination defence could not bring out anything favourable to the accused persons. She denied the defence suggestion that the accused persons took her thumb- impression forcibly in said Bhaini on some papers. She further denied the suggestion that she was ready to marry the appellant but her father did not agree for the said marriage. She denied the defence suggestion that she accompanied the accused persons of her own accord. Muhammad Anwar, complainant (P.W.6) has also supported the prosecution version. He is the father of the prosecutrix and he has denied the defence suggestion that Mst. Fazalan Bibi (P.W:4) was betrothed to Nazar Hussain, accused and thereafter, he refused to marry her. He denied the suggestion that the prosecutrix eloped with Nazar Hussain accused. A.S.I. Amir Zaman (P.W.7) was the Investigating officer in this case Special Public Prosecutor gave up Mst. Amiran, Allah Ditta, Ghulam Hussain, Muhammad Murad, Muhammad Hussain, Talib Hussain, War Khan, Ghulam Qadir, Ghulam Haider, Karam Hussain and Mr..Qaiser Shahzad (P.Ws.) Mst. Amiran (P.W.) and Mr. Qaiser Shahzad A.C. as being unnecessary and the remaining P.Ws. as being hostile. Special Public Prosecutor also gave up Mr. Muhammad Aslam, Secretary, Union Council as being hostile and as being won over by the accused.

3. Nazar Hussain appellant in his statement recorded under section 342, Cr.P.C. denied the prosecution's allegations and said that he has been involved in this case due to enmity with the P.Ws. He however, did not produce any evidence in defence. 4. 'The trial Court vide impugned judgment, dated 18-5-1982 acquitted Nazar Hussain and his mother Mst. Saddan under section 11 of the Ordinance, but Nazar Hussain appellant was found guilty under section 10(3) of the Ordinance and was sentenced to undergo R.I. for a period of 14 years, with 20 stripes.

5. Hence this appeal. 6.I have heard at length the counsel for the parties and have also perused the entire material available on the record.

7. It is contended by Qazi Muhammad Saleem the learned counsel for the appellant that there is no witness to support the version of the prosecutrix and medical evidence of the prosecutrix suggested that she was of a loose character. According to the counsel her recovery at Pull 114/10-R is also doubtful. According to him the evidence on the record as a whole does not inspire confidence and the case of the prosecution is rather doubtful. I have given 'my anxious consideration to these contentions raised on behalf of the appellant but find no substance in them. There is nothing on the record to suggest that the prosecutrix Mst. Fazalan Bibi or he father Muhammad Anwar complainant had any enmity or motive t falsely implicate the appellant in this case. Further I am convinced that the prosecutrix was absent from her house from the night between 24th and 25th of March, 1981 till her recovery on 29-3-1981 at Pull 114/10-R. According to the learned defence counsel the recovery of the prosecutrix is doubtful because the time of her recovery given by different witnesses is different. No doubt there is some discrepancy regarding time of her recovery given by -different witnesses but that alone is not sufficient to discard the recovery completely. Such discrepancies regarding time of recovery may be due to lapse of time between her recovery and giving of statement. Even otherwise it is but natural for a human being to err in such matter. The defence has not suggested how the prosecutrix was recovered by the police. It is not denied even by the learned defence counsel that if Mst. .Fazalan Bibi was not recovered in the manner and from the place as alleged by the prosecution then the defence should have suggested how and in what circumstances the prosecutrix was recovered and the appellant was arrested by the police. After taking into consideration the relevant facts I find that the trial Court has rightly believed the recovery of Mst. Fazalan Bibi prosecutrix and arrest of Nazar Hussain appellant together at Pull 114/10-R and this is a strong piece of evidence to corroborate the statement of the prosecutrix.

8. It is further argued on behalf of the appellant that Mst. Fazalan Bibi prosecutrix was a consenting party and she eloped with the appellant of her own free will otherwise she could not be expected to go out all alone at such late hours of the night and she could easily raise alarm to attract her mother, sisters and other people residing in the vicinity. It is further suggested that according to the medical evidence the prosecutrix was a habitual case and therefore, must already have sexual intercourse with the appellant or with some other persons. It is not necessary to express any positive opinion regarding this plea because in the circumstances of the case this will not help the appellant as Mst. Fazalan Bibi prosecutrix was minor at the relevant time. According to the Exh.P.H. (copy from the birth register) the date of birth of the prosecutrix Mst. Fazalan Bibi is 15-3-1968. Thus, at the time of occurrence she would be about 13 years of age. According to her ossification examination by Dr. Asghar Hussain (P.W.8) her age was given between 11 and 14 years. According to the Lady Doctor Mst. Zahida Khanum (P.W.1) the prosecutrix had at the relevant time teeth 7/7-7/7, breast small in size, axillary hair very scanty and pubic hair present in central part only. These are also indications that the prosecutrix was not major at the relevant time. There is nothing on the record to suggest that she had attained the age of majority or puberty or had started her menstruation at the relevant time. Confronted with these circumstances the learned defence counsel has frankly admitted that it is not possible for him to argue that the prosecutrix was major at the time of occurrence. The learned counsel has also not pressed the defence suggestion that the prosecutrix had performed Nikah with the appellant and had signed certain documents in this behalf or otherwise she had married him or was willing to marry the appellant.

9. The learned counsel for the State also relied upon the medical evidence of the Lady Doctor (P.W.1) and the report of the Chemical Examiner (Exh.P.K.) to corroborate the statement of the prosecutrix. There is nothing on the record to show that the sealed parcels regarding vaginal swabs of the prosecutrix and her Shalwar were in any way tampered with by anyone before they were received in the office of the Chemical Examiner, Lahore.

10. The last argument advanced on behalf of the appellant is regarding reduction in sentence. According to the counsel the appellant is unmarried young man and first offender and the only bread-winner of the family. It is further pointed out that although the prosecutrix may not be major, yet she was a consenting party and may have involved the appellant by developing illicit intimacy with him.

11. After taking into consideration the relevant facts and circumstances of the case, I have reached the conclusion that the trial Court has rightly convicted the appellant under section 10(3) of i the Ordinance. Accordingly his 'conviction is maintained under the said section. However, in the circumstances of the case, I find that the ends of justice would be met by reducing the sentence of imprisonment from 14 years to 8 years' R.I. and from 20 stripes to 15 stripes. Accordingly, while maintaining the conviction of Nazar Hussain appellant under section 10(3) of the Ordinance; I reduce his sentence to 8 years' R.I. with 15 stripes. S.A./419/FSC Order accordingly.