P L D 1963 (W (PLP)

Dates of hearing : 6th, 11th and 16th March 1963. Two persons, Samundar Khan and Aziz-ur-Rahman, were tried for offences under sections 373, 376 and 344 of the Penal Code. Aziz-ur-Rahman was acquitted but Samundar Khan was convicted and sentenced on all the three charges. One of the sentences of imprisonment being five years, Samundar Khan has come up in appeal to this Court.

2. This case relates to an allegation made by a girl, that she was subjected to prostitution against her will. According to her story, she was ten years old at the time of the Partition of the sub-continent (i.e., 1947) when she was taken away by a certain person with whom these proceedings are not concerned. On the 2nd of December 1961, she was found in a brothal house in Lyallpur. She states that at a time, which when calculated, works out at somewhere between 13 and 16 months before the time of her recovery, she had come from Karachi to Lahore, by train. Her story is that on arrival at Lahore, she met the appellant, Samundar Khan, who took her to his house where five or six prostitutes were already present. She states that she had been in Lahore for one year (or perhaps 13 months), when she was taken to the brothal house in Lyallpur where she was found.

3. The offence under section 373, P. P. C., has, for one of its necessary ingredients, the requirement that the age of the person taken away for the purposes of prostitution should be less than eighteen years. The prosecutrix herself gave her age as 24 years when she appeared in the witness-box on the 27th of March 1962. The time of her encounter with the appellant being less than 18 months before December 1962, works out to some where in 1960. According to the age given by her in the witness -box, therefore, she would be about 22 years of age at the relevant time. The age calculated in this way, also tallies with the estimate arrived at according to her narrative. She was about 10 years f old in 1947. She would accordingly be about 23 years old in 1960. This being the only material bearing on the question of age, I hold that the offence defined in section 373, P. P. C., could not have been committed in relation to the prosecutrix at any time after the year 1955. The charge under section 373 fails on this ground, and I acquit the appellant of this charge.

4. The statement of the prosecutrix is that for one year, while she was in Lahore, the appellant and his wife tried to persuade her to adopt the profession of prostitution, but she refused. She does not say that during the course of these twelve months the appellant at any time tried to have sexual intercourse with her. She goes on to state that after she had been forced into consenting to adopt the profession of prostitution, the appellant also had sexual intercourse with her. She describes it as rape. It is on this allegation alone that the charge under section 376, P. P. C. rests. The offence of rape is defined in section 375 of the Penal Code. According to that definition, sexual intercourse is rape if it takes place in the circumstances described in .any of the clauses enumerated in that section. The only clause of that section which might possibly be applicable to the circumstances of this case is:

Secondly.-Without her consent." In the case of a woman, who at the relevant time was carrying on the profession of a prostitute, the allegation that the inter course with a particular man was without her consent would need to be proved by very strong evidence; indeed her own statement on that point would be far from sufficient, particularly in this case where the appellant is not stated to have taken advantage of this girl for all the time that he is alleged to have kept her in his house at Lahore. The evidence on the record's in support of the charge under section 376 of the Penal Code is wholly insufficient. In fact, I would say that there is no evidence in support of this charge because the mere assertion of the prosecutrix that she was `raped' without a specific statement that she had not given her consent to the intercourse, and without even an attempt at corroboration of her statement, is no evidence at all. The appellant is acquitted of the charge under section 376, P. P. C.

5. As regards the charge under section 344, P. P. C., the position is not different from what it has been found to be with reference to the other two charges. The definition of `wrongful confinement' is given in section 340, P. P. C., which relates back to the definition of `wrongful restraint' given in section 339 of the Penal Code. An essential ingredient of this offence is a physical obstruction to the movements of a person. The pro secutrix says in her statement that she was "watched" by the wife of the appellant. She has not given any details of the alleged "watching" from which it could be ascertained whether she wanted to convey the idea that she would have been physically prevented if she had tried to go out. From the statement of one of the prosecution witnesses, however, it appears that at least during the period that she was in Lyallpur, she was going about freely without let or hindrance. The evidence of wrongful restraint in this case is wholly insufficient to sustain the conviction under section 344, P. P. C. I acquit the appellant of the offence under section 344, P. P. C., as well.

6. This would normally have ended this case. The learned counsel for the State, however, has brought to my notice the fact that the allegations in the first information report disclose, prima facie, certain other offences for which the appellant was never charged. He has drawn my attention to sections 5, 6, 8 and 10 of the West Pakistan (Suppression of Prostitution) Ordinance 1961 (II of 1961). The learned counsel contends that the appellant should have been charged and tried for those offences, and since he has not been so charged or tried, he prays that a retrial be ordered. He contends further that on the allegations the wife of the appellant is also, prima facie, respon sible under those sections, and asks that it be ordered that she also- be tried under those sections. 7: The learned counsel for the appellant contends that the time when the offences are alleged to have been committed happens to be before the commencement of the Ordinance and for that reason, the alleged offences are not punishable under the Ordinance. It seems, however, that the transactions to which these proceedings relate were continuing after the Ordinance in question came into force.

8. The learned counsel for the appellant next contends that if retrial is now ordered by this Court, it would be treated by the Court holding the retrial, as a direction to convict. In this connection, he relies on the case The Crown v. Sultan Mahmood and 9 others (P L D 1955 F C 20). In that case, the following passage from the judgment of the High Court was quoted

" .

And if I order a retrial, my judgment will un doubtedly be taken by the Sessions Judge who retries the case as an implied direction to convict because however conscientious and independent the Judge, his opinion is bound to be affected by what I have said. The retrial will therefore be a farce and the accused persons will in fact not have a fair trial to which they are entitled under the law." The circumstances in which these remarks were made are given in an earlier portion of the judgment. Those circumstances are these. The learned Judge had discussed the whole evidence in the case and for the reasons stated in his judgment had found that the order of acquittal against which a revision petition had been preferred was wrong and that on almost every part of the case the trial Judge had misdirected himself. He had gone on to say that if the case had been approached from a correct point of view, the trial Court would have given a different finding. After this judgment had been given by the High Court, the State filed an appeal against acquittal. It was in the context of the situation created by the filing of that appeal that the Federal Court was recapitulating the remarks made in the High Court.

9. The circumstances of this case are entirely different. I have given no findings on facts. I have even avoided giving a narrative of the prosecution story in detail. I have not tried to come to any conclusion whether the allegations of fact made are true or not true. The position as it emerges at the end of the argument is simply this that the offences with which the accused was charged are not made out by the circumstances alleged, and the offences which might be made out by the circumstances alleged, the appellant was never charged with.

10. It is expedient in the interest of justice that the appellant should be tried for offences under sections 6, 8 and 10 of the West Pakistan (Suppression of Prostitution) Ordinance, 1961, and possibly under section 5 of that Ordinance also. I would not even by implication like to suggest that there is any doubt in my mind that the Court that retries the appellant will not come to its own independent conclusion on the evidence as produced before it. To come to an independent conclusion is the duty of all officers administering justice. Each officer concerned with the administration of justice is to decide the case for himself. The opinion of others on the facts of that case is irrelevant. I would like to assume that this sacred duty is performed, and will always be performed, without any consideration other than the merits of the case. Nevertheless, in view of the fact that in the passage cited by the learned counsel for the appellant a remark does exist which, when taken out of its context, might possibly tend to create an impression that if the trial Court treated this judgment as a direction to convict, it would not be doing something wholly unexpected of a trial Court, I would like to make it clear that if a trial Court regards a judgment directing a retrial as any indica tion to decide the case one way or the other, it would be depart ing from its legal duty and failing in its lawful function.

11. I set aside the convictions and sentences of the appellant and direct that he be retried under sections 5, 6, 8 and 10 of the West Pakistan (Suppression of Prostitution) Ordinance, 1961. As regards the wife of the appellant, no order is called for by this Court. There is nothing to prevent the prosecuting agency from proceeding against her, if that agency is satisfied that on the materials in its possession there is justification for her prosecu tion. On the other hand, if that agency is not so satisfied, there is no occasion why it should be considered whether this Court can or ought to direct that agency to prosecute her. P. S. By the short order passed on the 16th of March 1963, the appellant was admitted to bail. That order of bail will, of course, be no bar to a subsequent cancellation of bail by al competent Court, if it is necessary to do so. A. H.