1984 P Cr (PLP)

Mian Qurban Sadiq Ikram for Appellants. Mian Mushtaq Ahmad for the State. Date of hearing: 29th November, 1982. Ten persons including the four appellants were mentioned in the F. I. R. relating to the abduction and rape of Mst. Taj Bibi. The police, however, submitted challan only against Muhammad Nawaz- and Atta Muhammad appellants and placed the remaining accused persons in column No.

2. The trial Court, however, after recording some evidence decided to summon all of them to face the trial. At the conclusion of the trial while the others were acquitted Muhammad Nawaz, his uncle Atta Muhammad, his mother Mst. Bakhtan and sister Mst. Alam Khatoon were found guilty of an offence under section 366, P. P. C. and were convicted accordingly. Muhammad Nawaz appellant was also convicted under section 370, P. P. C. and sentenced to seven years' R.I. to run consecutively with the sentence of three years under section 366, P. P. C. He was also sentenced to payment of fine. Atta Muhammad was sentenced to three years' R. I. under section 366, P. P. C. and the two women to two years' R.I. each under section 366, P. P. C. The learned counsel for the appellants does not press for the case of Muhammad Nawaz, appellant, as far as his conviction is concerned, he, However, prays for reduction in sentence. For Atta Muhammad, Mst. Bakhtan and Mst. Alam Khatoon, he has pleaded for acquittal as according to the learned counsel they are not guilty of any offence.

2. Mst. Bakhtan and Mst. Alam Khatoon are the mother and sister of Muhammad Nawaz appellant who may be described as the principal offender in the case. These two women were placed in column No. 2 but were summoned nevertheless to face the trial by the trial Court. The fact, however, remains that it is quite unusual in the cultural back ground of our society that a mother and a sister will join in being parties to an immoral act of a son or a brother involving the abduction and rape of a young girl. This can be appreciated in the background of the claim of the appellants that Mst. Tai Bibi had eloped with Muhammad Nawaz and had married him with her free consent although the consent of the girl became irrelevant when it was found that she was only 14 years of age. Yet the fact that certain ornaments and other valuables were also removed, when Mst. Taj Bibi was said to have been abducted, is an indication of the wider perspective of the case. Under these circumstances the conviction of Mst. Bakhtan and Mst. Alam Khatoon cannot be sustained. The case of Atta Muhammad, uncles of Muhammad Nawaz appellant, also deserves consideration. The evidence regarding Atta Muhammad and those acquitted of the charge is similar. The only distinction is that there is evidence that Atta Muhammad accompanied Muhammad Nawaz till the end. Mst. Tai Bibi the prosecutrix deposed against Atta Muhammad and some others of committing rape with her but her story to that extent was not believed and Atta Muhammad was acquitted of the charge under section 376, P. P. C. All the same conside ring that the evidence against Atta Muhammad is no different from the evidence against the remaining accused persons who were acquitted it will not be safe to uphold the conviction of Atta Muhammad appellant also.

3. The case of Muhammad Nawaz stands on a different footing. The fact that he claims to have married Mst. Taj Bibi, prosecutrix shows as admission on his part of having sexual relations with her. Since the girl was under age, her consent was irrelevant, therefore, the commission of an offence both under sections 366 and 376, P. P. C. is adequately proved against Muhammad Nawaz appellant. As regards the reduction of sentence. I am afraid, there is no ground except that there is no justifica tion for ordering that the sentences under the two charges will run one after the other. On the other hand, since the offence under section 376, P. P. C. was only the culmination of the other offence namely, one under section 366, P. P. C. it should have been directed that the sentences shall run concurrently. In view of the above discussion, the appeal of Atta Muhammad. Mst. Bakhtan and Mst. Alam Khatoon is accepted. They are acquitted of the charges against them. They are on bail. They shall be discharged of the bonds. The appeal of Muhammad Nawaz appellant is dismissed but it is directed that the sentences under the two charges shall run concurrently. M. Y. H. Appeal partly accepted.