1968 P Cr (PLP)

Two brothers Murad and Allah had have been convicted under section 366, P. P. C. Murad has also been convicted under section 376, P. P. C: The sentence on each count is five years' R. I.

2. The prosecution story given by Muhammad Lateef (P. W. 1) is that he is a resident of village Ehsanpur and ova 14thof November 1964, his girl fist. Seeman went off to milk the buffaloes. She was taken away by the appellants forcibly on a snare. One of the appellants was on a bike who accompanied the rider. The information of abduction was given to the mother of the prosecutrix Mst. Allah Rakhi (P. W. 7) by one Khuda Bakhsh (P. W. 3). A track party was arranged in order to find out the girl and the persons who had abducted her, but this persuit did not fructify. Ultimately, he lodged the F. I. R. at Police Station Daira Din Pannah on 17th of November 1964, at 2 p.m. The abduction is alleged to have taken place on the 14th of November 1964, at maghrib prayer time and the distance of the police station is five miles from that place. The girl was recovered on the 21st of November 1964, and she was medically examined a day later at 9‑30 a.m. by lady doctor Miss Azra Manzoor (P. W.2). According to her statement, the girl was 18/19 years of age. Her hymen was torn. Tears were healed and the vagina admitted two fingers easily. She took two vaginal swabs and sent them on to the Chemical Examiner for examination. In our opinion she was subjected to sexual intercourse. Exh. P. B. is the correct carbon copy of her medico‑legal report and it bears her signatures. The report of the Chemical Examiner Exh. P. C. shows that the two swabs were found stained with semen. ,

3. The two witnesses mentioned in the F. I. R. namely, Khuda Bakhsh son of Gulab (P. W. 3)‑and Bootay Khan, maternal uncle of the prosecutrix (P. W. 6) are the eye‑witnesses of the alleged occurrence. Khuda Bakhsh has not supported the prosecution version and there is material contradiction in the statement of Bootay Khan (P. W. 6) who says that he saw the girl going in the company of two persons while Mst. Seeman (P. W. 8) in her statement has deposed that when she met Bootay Khan she was alone and after covering a distance of two squares the two appellants forcibly abducted her.

4. Rahim Bakhsh (P. W. 4) has also gone back from his earlier statement made before the police. The statement of Mst. Allah Rakhi, mother of the prosecutrix, is also contradictory with the statement of Khuda Bakhsh. The evidence of Lateef (P. W. 1) is equally of little assistance to the prosecution case.

5. In this case the only evidence left is that of the prosecutrix and there is no material corroboration of her statement. The medical evidence can be interpreted that the girl was used) to sexual intercourse as her vagina admitted two fingers easily.

6. Sardar Mahmood Khan, learned counsel appearing on behalf of the appellants, refers to Shan Khan v. The State (P L D1966 Lah. 220) and two Supreme Court authorities, namely, Muhammad Abdul Khaleque v. The State (P L D 1960 S C 325) and Mumtaz Ahmad Khan v. The State (PLD 1967SC326) in support of his submission. The delay in this case is also not explained well. The report, which is alleged, to have been made by Bootay Khan, the maternal‑uncle of the prosecutrix, has not been produced. The delay is, therefore, fatal to the prosecution. The girl having travelled in a train from Kotadu to Multan and then from the railway station to a house in the city in a tonga, did not raise any hue and cry, if she was taken away against her wishes by the two appellants, There is no mark of injury on her person to show that she resisted to the intercourse. It seems to be a case of elopement and in order to cover the prestige of a married girl the case may have been initiated.

7. Learned counsel appearing on behalf of the State vehemently argues that it is not a case of elopement and the prosecution has fully proved its case. He also submits that the appellants have not put any question regarding elopement to the prosecutrix. On the other hand, the story put forward by Murad appellant is that, the father of the girl gave her away to him of her own will and, ultimately on account of pressure of brathari this case was set up. Be that as it may, the conviction of the appellants cannot be made on the statement of the prosecutrix.

8. From the examination of the evidence in this case, there is no doubt let in my mind that the prosecution has miserably failed to prove the case against the appellants. In any case, the statement of the girl and the medical evidence can give rise t the opinion that the alleged intercourse was not against her wishes as such conviction under section 376 cannot be mutated. The story of abduction having already come to an end on account of the two witnesses having resiled, the conviction, under section 366, P. P. C. cannot be maintained either.

9. For the foregoing reasons, I accept this appeal, set aside the conviction and sentence and direct that both the appellants be released forthwith if they are not wanted in any other case. Appeal accepted.