1969L3086 (PLP)

Rana Maqbool Ahmad for A.‑G. for the State. Juma Khan son of Nabi Bakhsh aged 40 years and Nanne Khan son of Ramzani aged 25 years, both Meos, resident of District Lahore, were tried alongwith three others, by Ch. Nazir Ahmad Magistrate 1st Class, Kasur, exercising enhanced powers under section 30, Cr. P. C. who convicted and sentenced them to undergo rigorous imprisonment for two years under section 366, P. P. C. and 32 years under section 376, P. P. C. each and in addition to undergo whipping 15 stripes in all or in lieu thereof to suffer six months' rigorous imprisonment. Their appeal against conviction and sentence to the Court of Session also failed. Hence this revision petition.

2. The prosecution case, in brief, is that on the 12th of April 1967, Mst. Rasulan alias Jeeran, aged about 14 years was called away from her house by Mst. Jummi, a sister of Juma Khan petitioner, to her house for participating in certain ceremonies connected with the marriage of her son. Mst. Jummi told the father of Mst. Rasulan P. W. 3 that she was taking Mst. Rasulan and she would be returning late to her house. Nawab P. W. 1 on this assurance went to sleep but the next morning he did not find his daughter in the house and promptly enquired from Mst. Jummi of her whereabouts. She, told him that Mst. Rasulan had returned the same night to her house and she was completely unaware of her whereabouts. Nawab P. W. 1 persisted in his enquiries but could not find anything more about her. Ultimately he called a Panchayat in which Kamala P. W. 4, Rehana P. W. 5 and the defence witness Chao Khan, B. D. Member, was also included. Mst. Jummi was called and asked to produce Mst. Rasulan or at least to inform about her whereabouts. At first she expressed ignorance about her whereabouts but ultimately she promised that Mst. Rasulan would be brought back within about two days or so. When she failed to keep her promise, Nawab P. W. 1 went to the D. H. O.'s Office, obtained the birth certificate P. A. and then on way lodged the report with A. S. I. Shaukat Hussain P. W.

9. This report was recorded on the 15th of April 1967 and the formal case was registered at Police Station Raiwind. It appears that after the ceremonies at the house of Mst. Jummi were over on the 12th of April 1967 she took Mst. Rasulan to another room in her house where Juma petitioner and his co‑accused Ghulam Hussain were present. She was from there taken next morning to the Haveli of Musa in village Bhambe and then kept in a Chaubara in Mandi Pattoki. She was also in the meantime taken to Chunlan and certain documents were got thumb‑marked by her. It was on the 20th of April 1967 that she was recovered from this Chaubara of Rashid Khan P. W. 11 in the presence of Malik Gulzar Hussain P. W. 7 and Sona P. W.

8. Her clothes were taken into possession but they are reported to have been lost in transit.

3. Mst. Rasulan P. W. 3, on recovery, was examined by Lady Dr. Qudsia Wasti on the 20th of April 1967. There was no mark of external or internal injury. Hymen was found absent. Old tears were present. Uterus was retroverted and was of small size. The lady doctor expressed her inability to tell the age of the hymen tears. These could be, according to her, one year or two years old. When further pressed she said that the tears were not of the duration of five days, ten days or twenty days or a month. Dr. Faiz Muhammad examined Nanne Khan petitioner and Ghulam Hussain accused and reported that they were in a position to perform normal sexual intercourse.

4. The petitioners, when questioned about the occurrence, denied their participation in it including the recovery of Mst. Rasulan from their custody. They denied having performed sexual inter-course against her will or to have committed rape on her. They stated that they have been implicated in the case because of enmity with the complainant party. They produced in defence two witnesses, both relatives, who stated that Juma Khan was present in the Panchayat that had been convened for obtaining the return of Mst. Rasulan.

5. The learned counsel for the petitioners has attacked the prosecution case on the ground that there had been inordinate delay in lodging the first information report, that the age of Mst. Rasulan remains undetermined from the evidence brought on record, that she is proved to be a bad character and could not be taken for her word, and finally, that the petitioner Jumma had not been examined by a doctor to determine his ability to perform normal sexual intercourse.

6. Mst. Rasulan had been invited by her neighbour Mst. Jummi the acquitted accused for the ceremonies on the occasion of the marriage of her son. Mst. Jummi had informed her father that she may be late in returning to her house. Naturally in this background and with this assurance Nawab P. W. 1 could not worry himself over the return of Mst. Rasulan. He learnt about her absence in the morning and the prosecution evidence as well as the defence clearly shows that the first thing that Nawab did thereafter was to convene a Panchayat in order to know about the whereabouts of his daughter and to secure, if possible, her return. The prosecution witnesses, namely, Kamala P. W. 4 and Rehana P. W. 5, took part in that Panchayat. Even the defence witness admitted that such a Panchayat was convened. It is stated by Kamala and Rehana P. Ws. that Mst. Jummi had after some effort undertaken to produce Mst. Rasulan. On her failure to do so Nawab was forced to get the birth certificate of his daughter and to go and lodge the report about the matter. In abduction cases it is normal for the parents to use their influence and agencies other than that of the police for the restoration of the girl so that their own honour and the marital prospects of the girl are not jeopardised. Such cases are reported to the police, as a last resort, when every hope for settlement without the intervention of police, is lost. In the present case exactly the same normal processes were adopted and when they did not meet with any success Nawab had to approach the police. The delay admittedly is there but keeping in view the nature of the case and the circumstances in which it occurred there is a very plausible explanation for it.

7. As regards the age of the abducted girl Mst. Rasulan, apart from the oral statement of Nawab P. W. and a casual remark of Lady Dr. Qudsia Wasti P. W. 2 that the age of Mst. Rasulan is about 13 and 14 years, we have a birth certificate Exh. P. A., duly approved by Sher Khan P. W. 10, a Clerk of the D. H. O.'s Office. It shows her age to be less than 14 years at the time of occurrence. This evidence has been attacked on the ground that it is not established that Mst. Rasulan was not a different daughter of Nawab. This plea has been taken because Mst. Rasulan is otherwise known as Jeeran and it is contended that she could not have had two names and if she had both should have found mention in her birth certificate. It is not unusual in our society to have more than one name or alias and not all of them find mention and one cannot possibly expect them to find mention in the birth certificate. Nawab P. W. 1 right from the first information report has given cull details of the members of his family indicating that it was Mst. Rasulan who was known as Mst. Jeeran. This made it easier for the petitioners to attack the evidence if they felt quite sure that Mst. Rasulan was different than Mst. Jeeran. There is no attempt to show that Nawab had any other daughter by the name of Mst. Rasulan who was different from Jeeran. This evidence of the prosecution clearly makes out the age of Mst. Rasulan P. W. 3 to be less than 14 years at the time of occurrence. There is no effective repudiation by the petitioners or any suggestion which could damage the quality of this evidence.

8. The learned counsel for the petitioners has heavily relied on foam Kala v. Emperor (A I R 1946 All. 191) to contend that failure of the prosecution get Junta petitioner medically examined to determine his ability to perform sexual intercourse by penetration of the male organ should entitle his clients to benefit of doubt. In the reported case to which our attention has been drawn, the accused dealt with was not circumcised and Lyon's Medical Jurisprudence for India by Waddell and Modi's Medical Jurisprudence were referred to conclude that if the accused is not circumcised, the existence of smegma round the corona glans is proof against penetration, since it is rubbed off during penetration. Their Lordships took this as one of the circumstances making the prosecution case doubtful. In the case before us instead of there being a denial there was actually a suggestion by the counsel for the petitioners which was admitted by Mst. Rasulan and duly supported by old tears of her hymen that even before the occurrence he used to have sexual intercourse with her in return for trifles. The normal presumption is that by was circumcised, being a Muslim. Besides, the circumstances clearly show that at no stage there was effective physical resistance on the part of Mst. Rasulan. What their Lordships were looking for A I R 1946 All. 191 was corroboration of medical evidence to show that there was indication of sexual intercourse having been committed shortly before apprehension. In the case before us the learned counsel insists on such an examination only for the purpose of determining that the petitioner Juma Khan was not impotent, or incapable of performing the sexual intercourse. The objective clearly is quite different from the one which was the basis of decision in A I R 1946 All.

191. It cannot be accepted as a principle of universal application that in every case of alleged rape they prosecution is required to get the accused medically examined only to ascertain that he is not physically impotent or incapable of performing sexual intercourse. No doubt, even in this cast two of the accused, namely, Nanne Khan and Ghulam Hussain had been examined by Dr. Faiz Muhammad for this specific purpose.

9. Mst. Rasulan having been shown to be of less than 14 years at the time of occurrence, her consent to the sexual intercourse, either before or after the occurrence will not to any extent affect the finding of guilt or innocence of the petitioners. Her bad character has been specifically mentioned by the learned trial Court and duly taken into consideration for awarding a lesser sentence. In the circumstances, the revision, petition fails and is dismissed. Petition dismissed.