1991 PLP 1998 (MLD)

Date of hearing: 28th May, 1991. Rashid alias Taidi petitioner was tried under section 376, P.P.C. for committing rape with Mst. Parveen P.W.4 by Magistrate Section 30, Kasur.

2. The prosecution case, briefly, was that on the eventful day Mst. Shaheen came to the house of Mst. Parveen, prosecutrix and deceitfully took her to her (Mst. Shaheen's) house. Mst. Karmo, mother of Mst. Shaheen was present in the house. She pushed Mst. Parveen into the room of her -house and bolted the door from outside. Rashid alias Taidi petitioner was present inside the house. He caught hold of Mst. Parveen and committed rape with her. The alarm raised by the prosecutrix attracted Mst. Inayat Bibi and Lal P.Ws. to the spot and on seeing them, the petitioner made good his escape. Channan, the father of the prosecutrix was in Lahore at that time. Coming to know of this occurrence, he came to Kasur and lodged F.I.R. on 29-12-1978. The petitioner denied the charge and claimed to be tried.

3. To prove its case the prosecution produced 11 witnesses. Supporting the prosecution case, Mst. Parveen P.W.4 stated that she was deceitfully taken to the house of Mst. Karmo by her daughter Mst. Shaheen and was raped in a room of the house. She raised alarm which attracted Lal P.W. and Mst. Inayat Bibi to the spot. After committing rape, the petitioner ran away. She narrated the occurrence to Mst. Inayat Bibi and Lal P.Ws. Lal P.W.1 did not support the prosecution case. Mst. Inayat Bibi, supported the statement of the prosecutrix. Lady Doctor Zubaida Bokhari had examined Mst. Parveen on 30-12-1978. She opined that Mst. Parveen had been subjected to sexual intercourse. She took two vaginal swabs for the detection of semen to the Chemical Examiner. It may be noted here that the Chemical Examiner's report was not proved or tendered in evidence. Channan complainant has proved the F.I.R. The rest of the evidence is/was of formal nature.

4. When examined under section 342, Cr.P.C., the petitioner denied the incriminating circumstances. He raised the plea of false implication on account of enmity. According to him, rape was committed by one Sadiq and he was substituted in his place.

5. The trial Court convicted the petitioner under section 376, P.P.C. and sentenced him to 4 years' R.I. and a fine of Rs.1,000, in default thereof 3 months' R.I. vide his order dated 19-5-1981. The appeal filed by him was dismissed by the learned Additional Sessions Judge, Kasur on 19-12-1983, hence this revision. .

6. Learned counsel for the petitioner submitted that the prosecution has failed to prove a case of rape against the petitioner; that the prosecution witnesses are not reliable and that in any case it was not a case of unwillingness. Learned counsel for the State has supported the conviction and sentence of the petitioner.

7. I have considered the matter carefully. I feel persuaded to accept this revision for the reason that there are reasons to believe that the sexual inter course was committed with the consent of the prosecutrix. The Radiologist's examination revealed that the age of Mst, Parveen was between 16/17 years at the time of occurrence; that neither mark of violence was present on her body nor on the person of the petitioner. In her statement, Mst. Parveen stated that she had resisted the attempt of rape upon her and that her nails had scratched the forearms of the petitioner and she had also bit him with her teeth and she herself had also received scratches at the hands of the accused but there is no medical evidence in proof of the marks of resistance or violence by the prosecutrix or by the accused. Lal P.W. was an independent witness. He did not support the prosecution. Mst. Inayat Bibi is closely related to the prosecutrix. Furthermore, in cross-examination, Mst. Parveen stated that the accused had been kissing and embracing her for 5 to 10 minutes. The statement made by Zubaida Bokhari does not exclude the possibility of the consent on the part of the prosecutrix. She has simply stated that Mst. Parveen had been subjected to sexual intercourse. From the circumstances appearing in the case, I am convinced that sexual intercourse was committed with the consent of the prosecutrix and it was not a case of rape. Pursuant to the above discussion, the revision is accepted and the petitioner is acquitted of the charge. He is on bail. He stands discharged of the bail-bonds. M.BA./R-310/L Revision accepted.