1968 P Cr (PLP)

Manzoor Hussain for the State. Date of hearing: 15th March 1968. The appellants Khan Muhammad and Wahid Bux have been convicted under sections 366 and 376, P. P. C. and sentenced to suffer rigorous imprisonment for four years under each count and pay fine of Rs. 150.00 and Rs. 300.00 in default rigorous imprisonment for one year under each count. These sentences have been passed on them separately for the abduction of Mst. Hakiman and Mst. Habiban. The appellants Ladho and Pinjal have been convicted under section 366, P. P. C., and sentenced to suffer rigorous imprisonment for two years and pay fine of Rs. 300.00 in default rigorous imprisonment for six months each. These sentences have also been passed separately on each of them for the abduction of each of the girl Mst. Hakiman and Mst. Habiban. The sentences of imprisonment in the case of all the appellants have been directed to run concurrently. Appellant Abdur Rehman, who had been tried along with them, has been acquitted. The appellants have filed these appeals which will be disposed of under this judgment.

2. The facts of the prosecution' case briefly are that Shah Ali P. W. 3 had four daughters out of whom three were unmarried at the time of the incident. Mst. Hakiman was one of his daughter out of those unmarried girls. Mst. Habiban was his niece. It is alleged that Khan Muhammad ape Shafi Muhammad had taken up the garden of Haji Muhammad Saleh, which was close to the house of Shah Ali, on lease. These two girls used to go to the garden to fetch water from the well there. Khan Muhammad and Shafi Muhammad allegedly cut jokes with them on account of which they complained to their father Shah Ali. He reprimanded them after which probably there was no com plaint. On the 19th of August 1965, at about 1 a.m. while Mst. Hakiman and Mst. Habiban were sleeping on the same cot in their courtyard, Khan Muhammad and others came there, woke them up and took them away. Shah Ali is said to have given them a Hakal as he woke up on the barking of the dogs but because he was threatened he did nothing in the matter. Shah Ali, after the girls were taken away, reported the matter to several persons including Sher Muhammad, Haji Muhammad Saleh, Noor Muhammad and Jan Muhammad, and then went to Police station at Ahmadpur, which was at a distance of two and a half miles from the scene of offence and lodged his first information report Exh. 10, at 5 a.m.

3. The Police during the course of investigation visited the scene of offence and prepared its mashirnama. They secured the girls under mashirnama Exh. 18, on the 19th of August 1965, from Jawar cultivation nearby. The girls were then sent for examination to Dr. Shamim Akhtar. After the usual investiga tion was completed, the appellants along with Abdur Rehman were challaned.

4. The appellants, when questioned, denied the allegations made against them and attributed the filing of this case to enmity with the witnesses. They have examined no witness in defence.

5. The case of the prosecution depends upon the evidence of Mst. Hakiman P. W. 1 and Mst. Habiban supported by the evidence of Shah Ali P. W. 3, Haji Muhammad Saleh P. W. 5, Noor Muhammad P. W. 7 and Jan Muhammad P. W.

8. The evidence of Mst. Hakiman and Mst. Habiban is to the effect that they were gagged on the night of the incident and were dragged out of their house by the appellants. Their evidence also is that they went on raising cries but nobody came to their rescue. They have also stated that for quite some distance Khan Muhammad and Wahid Bux appellants carried the girls on their shoulders till they reached the bungalow of Ghulam Mustafa. Their evidence also is that they were taken from place to place. Mst. Hakiman and Mst. Habiban have also stated that they were raped by Khan Muhammad and Wahid Bux respectively. The evidence of these witnesses does not appear to be natural because it is not possible to believe that they raised cries but nobody went to their rescue. Their father, uncle and several other persona were sleeping in the house. It is impossible in the extreme to believe that they would all remain quiet and not go for the rescue of the girls. Even if it be assumed that Shah Ali and others did nothing at the time when the girls were being taken away from his house, there was nothing to prevent them from taking up weapons and pursuing we culprits after they had left the house of Shah Ali, If they had pursued them they would have certainly overtaken them because the girls have stated that they were being taken on shoulders by two of the appellants. The theory of cries having been raised by the two girls also does not find mention in the first information report lodged by Shah Ali, father of Mst. Hakiman. The statements of these girls that they were gagged and dragged out of the house also does not find corroboration from what is stated in the first information report. On the contrary, the first information report lodged b; Shah Ali is to the effect that the girls were awakened while they were sleeping on a common cot and then taken away. The appellants could not have awakened the girls if they had not been in league with them. The character of the girls also does not appear to be above board because Mst. Habiban, at any rate, has been admitted by Sher Muhammad P. W. 4 to have been taken away by one Yousuf before this incident. Even Mst. Hakiman has admitted that Mst. Habiban had illicit relations with Yousuf. The evidence brought on record therefore creates a doubt about abduction of these two girls. They probably on their own accord in collusion with the appellants left their house and went away with them. They had subsequently betrayed their lover because they ware secured by the Police and handed over to their fathers.

6. The first information report lodged by Shah Ali also shows that it was Khan Muhammad and Shafi Muhammad who had taken away the girls. Shah Muhammad has not so much as even been brought before the Court as an accused. He has taken a somersault in his evidence and implicated the four appellants and the acquitted accused. All the other witnesses except the two girls have also stated that the report made by Shah Ali was to the effect that Khan Muhammad Wallas or Khan Muhammad and others had taken away the girls. The evidence of Shah Ali also, therefore, would indicate that the girls were not forcibly taken away in his presence by the appellants as alleged by him. It appears that after Shah Ali went from pillar to post and complained against the abduction of his two girls the forces worked on the culprits, who had taken them away, on account of which they were left in the Jawar cultivation from where they were secured. The evidence of a few witnesses that when the girls were secured from the cultivation all the four appellants were seen running away from there is also false because some of the witnesses have contradicted this evidence. Even otherwise, it does not appear to be true because if they had been in the cultivation and had actually been seen running away the police who was there would not have let them ruts away.

7. The sum total of the evidence on the record, therefore, shows that the girls had left the house of their fathers on account of their own free will. As their age has been given by the doctor to be more than 16 years, the offence of abduction would not be brought home to the appellants. Even the offence of rape, in these circumstances, cannot be deemed to have been committed because the presumption would be that intercourse was had with them with their consent. On this view of the matter, I consider the evidence against the appellants to be doubtful and giving them benefit of doubt, I accept their appeals and acquit them. They are on bail. Their bail bonds stand cancelled and the sureties discharged. Appeal accepted.