1988 P Cr (PLP)

Date of hearing: 23rd May, 1988. Muhammad Nawaz alias Nazoo son of Shah Bakhsh was tried alongwith 8 others under sections 148, 363, 376/149, P.P.C. for the abduction of Mst. Bachal Mai aged 14 years and subjecting her to rape. He was convicted by Magistrate Section 30, Jampur on 31‑8‑1980 under section 376, P.P.C. and sentenced seven years' R.I. and a fine of Rs.2,

000. Half of the fine was ordered to be paid to Mst. Bachal Mai as compensation in default thereof he was ordered to undergo six months' S.I. His co‑accused were, however, acquitted. The charge under section 363 P.P.C. was found not proved. Muhammad Nawaz alias Nazoo has filed this appeal against his conviction and sentence.

2. The prosecution case is that on 1‑10‑1976 Mst. Naziran, Mst. Pairhi and Mst. Pathani acquitted accused came to the house of Mst. Bachal (abductee) and took her along on the pretext of showing them the house of one Muhammad Shafi and from there with the help of Nazoo appellant, his brothers namely Hazara, Shakari and his cousins Manzoor and Jamil (since acquitted) and Ghulam Hussain (absconder) forcibly took her on the horse back. Ghulam Sarwar, Muhammad Amin and Muhammad Hussain P.'Ws. had seen them taking away Mst. Bachal. Her brother Allah Dawaya P.W.3 learnt about the occurrence on coming back from the fields. He approached the accused for the return of Mst. Bachal and on their refusal reported the matter to the police by lodging the F.I.R. Exh.P.D. at P.S. Dajal on 18‑10‑1976 (18 days after the alleged occurrence). On 19‑10‑1976 Ghulam Nabi. Lambardar and Riaz Hussain P.W.10 produced Mst. Bachal before Muhammad Amir A.S.I. P.W.8. He got her medically examined and after completing the investigation challaned the accused,

3. The prosecution produced ten witnesses to prove its case. Muhammad Amin P.W.1 was declared hostile. Mukhtar Ahmad P.W.2 stated that in his presence Mst. Bachal had pointed out the house of the co‑accused of the appellant. Allah Dawaya complainant P.W.3 is maker of the F.I.R. He stated that he learnt about the occurrence's on return from the fields and searched for his sister and on refusal of the accused to restore her he lodged the F.I.R. Exh.P.D. Mst Nizam P.W.4, mother of Mst. Bachal Mai stated that Mst. Naziran, Pairhi and Pathani accused (since acquitted) had taken her daughter from her house on the pretext of leading them to the house of one Shafi. Mst. Bachal Mai P.W.5 stated that she was forcibly taken by the appellant and the acquitted accused on horse back and was kept for one night in the house of Nazoo appellant where Sarwar, Shakari, Nazoo and Hazara committed rape on her. She added that she was taken to some other places where she was also subjected to rape. According to her she was brought back by Ghulam Nabi P.W. from the clutches of the accused. Lady Doctor Mst. Surraya Naz P.W.6 medically examined Mst Bachal, According to her she was menstruating on the day of examination and there were no marks of violence on her body. She stated that Mst. .Bachal had lost her virginity. Hymen was completely torn and there were no fresh tears. Vagina admitted two fingers easily. Muhammad Ali Amjad, Secretary Union Council, Dajal P.W.7 proved the birth entry of Mst. Bachal according to which she was born on 29‑3‑1962. He produced her birth certificate Exh.P.E. Muhammad Amir A.S.I. P.W.8 investigated the case. Dr. Naseer Ahmad P.W.9 examined Muhammad Nawaz alias Nazoo appellant and found him fit to perform sexual intercourse. Riaz Hussain P.W.10 stated that at the instance of Allah Dawaya complainant he had brought Mst. Bachal Mai back.

4. The appellant and his, co‑accused denied the prosecution allegations. Muhammad Nawaz appellant stated that he had been engaged to the abductee and had paid a sum of Rs.4,000 to her parents. After sometime they refused to marry her with him whereupon Mst. Bachal herself came to his house and solemnized Nikah with him with her free will and remained with him as his wife till her restoration. Ghulam Nabi and Nabi Bakhsh were examined as defence witnesses who supported the plea of the appellant.

5. Disbelieving the prosecution evidence against the accused except Nazoo appellant the trial Court acquitted them by giving them the benefit of doubt. The appellant was convicted because he had admitted that Mst. Bachal Mai had lived with him as his wife and had solemnized Nikah with him which fact was not proved to the satisfaction of the Court. The Court was of the view that vast differences in the ages of the appellant and the abductee indicated that the latter was not a consenting party to the marriage. It further observed that if Mst. Bachal Mai had solemnized marriage with the appellant of her own free will she would not have deposed against him.

6. It is contended that the judgment is based on conjectures and surmises and that the appellant could not have been convicted on the uncorroborated testimony of Mst. Bachal Mai particularly when she had been disbelieved against majority of the co‑accused against whom she had also levelled allegation of rape. It is further stated that the medical evidence does not support her.

7. Prior to the registration of the case Mst. Bachal Mai was produced before a Magistrate at Jampur where her statement Exh.D.2 was recorded on 10‑10‑1976. In the said statement she stated that she had not been abducted by anybody and that she had come to the appellant of her own accord. Nikahnama D.1, dated 15‑10‑1976 proves that her Nikah was solemnized with the appellant. Ghulam Nabi, Lambardar who had produced Nst. Bachal Mai before the police appeared as D.W.1 and stated that she was engaged to the appellant and that she had herself left for his house and that he had sworn on Holy Qura'n that he would restore Mst. Bachal to the appellant if the latter permitted her to go to the house of the complainant. He added that he had given the said undertaking to Mst. Bachal Mai also.

8. There is an inordinate delay in reporting the matter to the police. The occurrence had taken place on 1‑10‑1976 whereas the report was lodged on 18‑10‑1976. There is no convincing evidence to the effect that the appellant or his companions had been making promise to the complainant about the return of Mst. Bachal Mai resulting in delay in reporting the matter to the police. Mst. Bachal Mai and other P.Ws. were disbelieved on the point of abduction. The former was also disbelieved against co‑accused of the appellant against whom she had also levelled allegation of rape. There are material contradictions between her statement at the trial and the one made by her before the police. She was pubert on the day of her medical examination. According to the Lady Doctor who had examined her she was used to sexual intercourse and no marks of violence were found on her person. Excepting her solitary statement about the commission of rape with her by the appellant there is no other evidence to corroborate her. As already stated above she had been disbelieved qua the other accused. In the circumstances narrated above it is not safe to base conviction on her solitary statement. Accordingly I accept the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He is discharged from the bail bonds. H.B.T. / M‑806/ L Appeal accepted.