P L D 1959 (W (PLP)

Agha All Haider for Appellants. Zahoorul Haq, A. P. P. for Respondent. Dates of hearing : 21st and 22nd July 1959. These are two appeals against the judgment of Mr. A. H. Kureishy, Additional Sessions Judge, Karachi, convicting both the appellants under section 366, P. P. C. The appellant Abdul Rashid was sentenced to 3 years' R. I. while Ghulam Rasool to 2 years' R. I. Abdul Rashid has filed an appeal, which is Criminal Appeal No. 466/58 and Ghulam Rasool has filed his appeal from jail being Criminal Appeal No. 1‑529/58. As both these appeals arise out of the same judgment, this order will dispose of both the appeals. On 31‑12‑57, the girl in the case named Bilqis left her house at about 3 p.m. She later met the two appellants and then the three of them came to the. City Railway Station, Karachi from where they got into a train and went to Gujrat. The girl Bilqis used to live with her parents and brother in a building called "Faize Hussaini Building" situated at Bunder Road, Karachi. Behind her house was the house of the appellant Abdul Rashid, who was living in the Nanoomal Building in Thattai compound from where he could easily see the girl and vice versa. The appellant Abdul Rashid is a young man of about 17 or 18 years of age and is working in the Cotton Exchange at Karachi. The other appellant Ghulam Rasool, who is also working in the same place, is his friend. To resume the story, the party having reached Gujrat Railway Station proceeded from there to a village named Raikey, which was the home of the appellant Ghulam Rasool. Ghulam Rasool's wife was living in that house and they lived there for about two nights, and a day. It then transpired that the girl wanted to go back to Karachi and the appellant Ghulam Rasool put in a trunk‑call to Karachi to the father of the girl, but as he was ill, obviously due to the shock of the disappearance of the girl, the call was received by one Ali Muhammad who is the uncle of the girl Bilqis. Ghulam Rasool is said to have said that he will bring, the girl back to Karachi but they will have to bear the expenses which will be about a thousand rupees. Then it seems that the party consisting of the girl, Abdul Rashid and Ghulam Rasool came back to the Gujrat Railway Station in order to return to Karachi. It was at this point of time that two persons named Mahmood and Mumtaz appeared on the scene and evi dently suspecting that the girl was not in normal circumstances took advantage of the position and posed themselves as policemen. This was enough to put sufficient fright into these two young people's mind and they allowed themselves to be taken by these two men to Wazirabad, where the girl was removed from place to place in the company of Mahmood. Ultimately, Abdul Rashid was sent back to Gujrat and after again spending a night in Wazirabad. Mahmood brought the girl to Gujrat, where they found Rashid in the house of Mumtaz. . It seems Mahmood and Mumtaz by now had lost interest in the girl and they allowed both Rashid and the girl to go. It was then that Rashid proposed that the girl should make a statement before some authority fearing that there might be trouble about this escapade. So on 9‑1‑58 they were going in a tonga from Wazirabad to Gujrat for the purpose of getting the girl to make a statement before the District Magistrate or someone else. On the way, they were apprehended by the police party, who were in search of the girl. The police seized a sum of Rs. 230 from Fatima, the wife of Ghulam Rasool, and also a dopatta which belonged to Bilquis. The girl's statement was recorded under section 164, Cr. P. C. and she was sent to the lady doctor for medical examination, but for some reason, which is not quite clear, the medical examination did not take place. The appellant Abdul Rashid was arrested on 9‑1‑58 while Ghulam Rasool had already been arrested earlier at the Nishat Hotel, Gujrat, which was the address he had communicated on the tele phone in the message, which he had sent across to Karachi. The girl, the two appellants, the girl's brother Tayab and her mother, who had also reached Gujrat, returned to Karachi. The girl was examined' medically for her age and the medical evidence was that she was about 15 'or 16 years of age. This uncertainty was, however resolved later on by an examination of the girl by the radiologist, according to which it appeared that her age was about 16 (sixteen) years. At the trial, as it generally happens, the prosecution case, which was put forward, was attempted to be to the effect that the girl had come out of her house for the purpose of going to the Civil Hospital and that she was accosted on her way on the Mission Road by the appellant Abdul Rashid, who threatened her with a knife and put her into a rickshaw and took her to the railway station, that in the meantime he had been joined by Ghulam Rasool, that she was kept under fear and perpetual threat all the time during the journey and that this process continued at Gujrat until the girl and the boy were apprehended by the police party on the 9th January 1958. The main evidence on this point was that of the girl herself. She had stated in her statement under sec tion 164, Cr. P. C. taken at Gujrat after she had been apprehended by the police and most probably met her brother and mother that she had been taken by the appellants by force and kept under force. She was then examined in the committal Court and there she had also maintained the same pattern of the story. When she came to give evidence in the Court of Sessions, this is what she stated in her examination‑in‑chief: "On 31‑12‑57, I had vomiting and felt unwell. I went to Civil Hospital at about 3 p.m. At that time none of the male members of my family were in the house. My mother alone was in the house. I got down of my house and proceeded on Bunder Road. Abdul Rashid accused met me and asked me to go with him. I went with him of my own accord." She also stated that she had gone on foot up to the Railway Station. At this stage, the prosecution prayed that the girl's statement made before the committing Magistrate be brought on record of the Sessions case which was allowed. That statement was put to the girl by the A. P. P. and she was made to admit that what she had stated before the committal Court was correct. She was also made to admit that the appellant Abdul Rashid had com mitted rape upon her. She also stated that she had four gold bangles on her person, which had been removed by the appellants when they were at Gujrat, and the same had been sold by Ghulam Rasool for Rs. 400 out of which Rs. 230 were given to her by the appellant Ghulam Rasool and which she gave to the wife of Ghulam Rasool for keeping. She also stated that Mumtaz also tried to raps her and that he had opened her trousers in the house of Mahmood's relation. The other evidence in this case was about the arrest of the appellants at Gujrat in the circumstances stated above, the fact of the disappearance of the girl on 31‑12‑57 and the fact that the appellant Abdul Rashid used to stare and make signs to the girl from his window and to which the brother of the girl named Tayab had remonstrated. There was the medical evi dence of the examination of the appellant Abdul Rashid, wherein some slight injuries were found on his penis and his clothes were stained with semen. There was the evidence of the Magis trate from Gujrat about the recording of the girl's statement under section 164, Cr. P C, and the two police officers from Gujrat about the receipt of message from Karachi, the search and the arrest of the appellant: and the finding of the girl. The learned Sessions Judge, upon the medical evidence, found that it had not been proved that the girl was under 16 years of age. I do' not disagree with that finding. It is true that the clinical report was to the effect that the girl was about 15 years of age, but the evidence of Dr. Anwarul Hasan, the Police Surgeon, after having examined the report of the radiologist, was of the opinion that the age of the girl was between 15 and 16 years. But, apart from this medical evidence, there is other material. When the girl was examined by the committing Magistrate, she had given her age to be 16 years. That, of course, would not be of much consequence, but the most important evidence is the report of her first disappearance, in which she had been described by her brother as being of IG years of age. There was then the admitted position that the girl was studying in a school. It also seems that she was born at Karachi and it could also be reasonably expected that she was vaccinated. No attempt was made to produce any evidence of this character. from any records. The presumption then would arise that if this evidence, which is quite clear to me is of vital importance, was not produced nor was any explanation given of the non-production, it would, if it had been produced, gone against the prosecution. In this view of the matter, what remains to be examined is whether the girl was compelled by force or induced by any deceit ful means and thus taken from any place with the intent that she may be compelled to marry or forced or seduced to illicit inter course. On this question, the learned Additional Sessions Judge has relied upon the solitary testimony of the girl. This testimony was surely not such as could have been acted upon for basing the conviction. As I have pointed out above, in the Sessions Court the girl herself had admitted in the examination‑in‑chief that she had gone of her own accord and that was a statement, which was clearly consistent with the entire conduct of the girl from the time that she had left her house until she was apprehend ed on the 9th of January, when she was going with the appellant to Gujrat for making a statement before a .Magistrate to the effect that she had come out of her own freewill and that she was going to marry Abdul Rashid. The story of the girl having come out of her house because she had felt giddiness in the afternoon and was therefore sent by her mother to go alone to the Civil Hospital for treatment, was not a natural one. There was no mention of this fact either in the first report of the disappearance of the girl which was made on 1‑1‑58, or the second report made by Tayab on 2‑1‑58, where Tayab had clearly alleged that it was the appel lant Abdul Rashid who seemed to have abducted the girl. There was no indication in these reports that the girl had left her house for the purpose of going to the Civil Hospital. And it should not have been difficult to see that this explanation was one which could .not have been accepted, Bilqis, even if she had felt a vomiting sensation, would not have gone to the Civil Hospital in the afternoon for the purpose of getting treatment. A mere vomiting sensation does not necessitate sending of a young girl all by her self to a public hospital particularly in view of the evidence that she had never left her home alone before. And if she was so ill due to the vomiting, surely we would have expected her to say something about it when she was asked to undertake the long journey from Karachi to Gujrat. As for the story of the show of the knife and the continued threats, it is absurd. One cannot threaten a grown up girl on Mission Road in broad day light with a knife and get away with it without attracting the attention of the host of people round about. Then there is the fact that she quietly went from Mission Road to the Karachi Railway Station and then all the way to Gujrat. One cannot take away even a child like this if it is unwilling to go. The Appellant Abdul Rashid was present in Court and I saw him. He is a pigmy of a boy and of a poor physique and it is impossible to believe that he could have managed to take this young girl, who herself was about 16 years of age, by force from Mission Road to the Railway Station. It is important to note that the story put forward was not of inducement but of force. It would have been difficult to prove either. After all, this boy was known to the girl on her own showing and had even made objectionable signs to her through the window. If therefore he had met her on the Mission Road as alleged and had attempted any mischief, the girl at least would have been able to protest if not cry out and that would have been quite enough to attract the whole crowd at that busy place. It therefore seems to me quite clear that the whole conduct of the girl from the time of her disappearance on 31‑12‑57 till she was found by the police party on the 9th of January could only be consistent with her being a willing party, a fact to which she had herself confessed before the Sessions Judge and which necessitated. the bringing on record her statement under section 288, Cr. P. C. It is difficult for me to see how the learned Sessions Judge was able to swallow the story of abduction by force in view of the nature of the evidence of the girl and a host of circumstances, some of which have been referred to by me above. The learned Sessions Judge has made no attempt to explain the 'conduct of the' girl in not raising one single word of protest seas to be noticed by any one. In fact, the girl herself does not allege that she did raise any such protest. As for her statement that she ‑ had gone of her own accord made before the Additional Sessions Judge, the; latter has accepted her explanation that she made 'that statement out of shame because there were such a large number of people during the Sessions trial and that her previous statement which she had made before the committing Magistrate in a place where there was no crowd or commotion was true. It is plain to toe that the crowd in the Court of the Additional Sessions Judge, if it did have the effect of making the girl nervous would be more likely to result in her admitting the truth in an unguarded moment. The explanation therefore given by her later on was such which could not have been accepted. There is then the question of the need of corroboration. In all such cases, the Courts always look for a reasonable amount of corroboration of the evidence of the A prosecutor particularly if she happened to be a grown‑up girl. In this case, there was not a shred of corroboration with regard to the allegation of forcible taking away. As for the circumstantial evidence, it was entirely against the prosecution version sought to be proved in the case. It is, therefore, quite clear to me that howsoever unfortunate and howsoever foolish the act of the girl might have been in leaving her parents' shelter and going with this worthless young man, there is no doubt that she went willingly and of her own accord. In this view, the finding of the learned Sessions Judge with regard to the conviction of the appellant Abdul Rashid under section 306, P. P. C. cannot be maintained. In view of the finding given above, it also follows that the appellant Ghulam Rasool could not have been convicted of that offence. He had obviously offered help to the appellant Abdul Rashid in effecting the escapade and then finding a place where the girl and the boy could for some time stay. Whether his object was purely friendly towards Rashid or that he had hoped to make some gain from him does not need to be explored. Though from his conduct later on, it seems to me that Ghulam Rasool did expect to gain materially at least in some measure from this tran saction. Be that as it may, his conviction for an offence under section 366 cannot be maintained. The appellant Abdul Rashid was also charged with an offence under section 376, P. P. C. He has been acquitted of that charge and in view of my finding that the girl had willingly gone with Abdul Rashid I do not find any reason to question the finding of the learned Additional Sessions Judge on that point. There could be no case of rape so far Abdul Rashid was concerned. He was also charged for an offence under section 368/34 and under section 379/34, P. P. C. ‑Of these charges he has also been acquit ted and I need say no more about it. Likewise the appellant Ghulam Rasool was also charged for an offence under sections 368/34 and 379/34 and of which charges he was also acquitted. There are certain aspects of the case to which I must briefly advert before I part with it. Firstly, from the statement of the girl Bilqis which she made before the Magistrate under section 164, Cr. P. C. at Gujrat and from the other evidence it was quite clear that the two persons Mahmood and Mumtaz who had posed as policemen at the Gujrat Railway Station when the girl and the two appellants were coming back to Karachi, bad apparently been guilty of some misdemeanour and the matter was such which could have been investigated if the complainant party and the police were anxious to bring this case to the Court. Nothing of the kind was .done and there is not a word of explanation about it. On the other hand, they decided to launch a prosecution for abduction and rape upon evidence which, upon scrutiny, should have been easily found not to be worthy of credit. This was a most unfortunate. business involving the future of a young girl and the honour of a respectable family and this trial and the resul tant publicity could not have done any good. The trial itself involved such a waste of public time and money and necessitated the calling of several Government servants from Gujrat to come and give evidence. If this case was prosecuted on the persuation of the girl's relations, they have to thank themselves for the con sequences. A look at the medical evidence on the question of the age of the girl should have immediately put the prosecution agency on its guard and they should have been more cautious when decid ing to bring this matter to Court. In view therefore of what I have said above, it is plain to me that though the act of the appellants was morally most reprehen sible, they were not guilty of an offence under section 306, P. P. C. I, therefore, accept both the appeals and set aside the convic tion and sentence passed by the learned Additional Sessions Judge. The appellant Abdul Rashid is on bail, his bail bond shall be cancelled. I further direct that the appellant Ghulam Rasool shall be set at liberty forthwith. Before I close I must note that Mr. Zahoorul Haq, the learned counsel for the State, had fairly conceded at the outset that he was not in. a position to support the judgment of the learned Additional Sessions Judge. K. B. A./A. H. Appeals accepted.