P L D 1970 Dacca 1 (PLP)

SIDDIKY, C. J.

‑The appellant before us, Abul Ola, was convicted under section 366 of the Pakistan Penal Code and sentenced to rigorous imprisonment for five years. The prosecution case, in short, is that on 4‑1‑1963 P. W. 1, Miss Dilwara Begum alias Dilara Alo, a student of B. A. Honours class of Chittagong Government College and daughter of Late Maniruddin Ahmed, a Deputy Magistrate, and sister‑in‑law of Dr. Ahmed Ullah, Professor and Head of the Department of Electrical Engineering, Rajshahi Engineering College, after finishing her duty as an Announcer of Radio Pakistan at Kalur ghat in Chittagong, was returning in the staff car of the Radio Pakistan being No. E. B. C. 2044 driven by the appellant before us along with Messrs Shahadat Ali, Radio Engineer‑Shift‑in charge, Shamsuddin, Technical Assistant, Shamsul Alam, Techni cal Assistant, Farook, Technical Operator, A. K. Mannan, Announcer, Abu Baker Siddique, Announcer, and one peon, to her residence at Enayet Bazar in the town of Chittagong. The car started from the Radio Station at Kalurghat at about 10‑45 p. m. Miss Dilwara sat in the right‑hand front seat of the car alongside the driver and the driver was seated on the left-hand front seat, as the car was "left‑hand drive" one. The other occupants of the car sat in the rear seats. Kalurghat lies in the outskirts of the Chittagong town at a distance of 3 miles to the east of Enayet Bazar which is in the heart of the town. At first Mr. Abu Baker Siddique was dropped in front of the League Stores, at Chowkbazar. Next Mr. Shahadat Ali was dropped near Parade Ground, Chowkbazar and thereafter Mr. A. K. Mannan was dropped near "Askar Dighi" and then Dilwara asked the driver to drop her at her residence at Enayet Bazar which will be on the way to the residence of the other occupants of the car, the first of whom was to be, dropped at Madar Bari across the railway line, but the appellant told Dilwara that she would be dropped last after the other officers had been dropped at their respective destinations. The appellant, instead of driving via Enayet Bazar, went straight to the Tiger Pass, crossed the Railway over bridge at Dewanhat, and then went to Agrabad to drop Mr. Shamsuddin. After Mr. Sharnsuddin got down at Agrabad only Mr. Shamsul Alam, one of the Techni cal Assistants, and Dilwara remained in the car to be dropped, and the appellant drove towards Madar Bari. On way to Madar Bari, Dilwara asked Mr. Shamsul Alam to drop her first as she had no escort with her whereupon Mr. Shamsul Alam is said to have told her that there was nothing to be afraid of as it was a Government vehicle and a Government employee was driving the same. Thereafter, Mr. Shamsul Alam was dropped at Madar Bari, from where, instead of proceeding backward towards Enayet Bazar, the appellant started driving the vehicle at a great speed towards a wrong direction, i.e. towards Mirsarai on the Chitta gong‑Dacca Trunk Road, and started talking irrelevantly about his respectability and other things. When Dilwar realised that the driver was taking the vehicle through the Chittagong‑Dacca Trunk Road in a wrong direction and beyond the Chittagong town area, she enquired as to where he was taking her. The appellant then stopped the car and started making immoral proposals to her, caught hold of her by his right hand, and started driving the car slowly. At this behaviour of the appel lant, Dilwara abused him and struggled to free herself from his clutches but the appellant became furious and began to drag her with his right hand towards him. She desperately continued to struggle to free herself from the clutches of the appellant and simultaneously made attempts to open the right hand door of the car. Suddenly the door opened and she jumped out of the car crying "save me, save me." The appellant then stopped the ear, lifted her forcibly back into it, and then again caught hold of her by his right hand and started driving the car slowly with his left hand. The girl started screaming and shouting "save me, save me", and began to struggle again to free herself front the, clutches of the appellant. Then she saw two or three persons standing on the road and they suddenly came in front of the vehicle when the appellant was forced to stop the shine and one of those persons opened the right-hand door and Dilwara at once jumped out of the car but in doing so fell on the ground as a result of which she sus tained injuries in the face, her teeth were damaged and her tongue and lip were cut and she was bleeding profusely. No sooner had Dilwara jumped on to the ground the appellant drove away with great speed from that place. This happened on the Chittagong‑Dacca Trunk Road at a place called Pir Ali Shah Uargah. With great difficulty she disclosed her identity to the persons who had rescued her whereupon she was taken to the Pan shop of P. W. 3 Abdul Sabur, one of her rescuers, and there she requested them to take her to her residence at Enayet Bazar. Tlie timwas about 11‑30 p.m. Then one of the other rescuers, namely, P. W. 5 Mafzal Ahmad, and P. W. 4 Abdur Rahman, who had come on hearing the noise to the Pan shop of Sabur, took Dilwara in a Baby Taxi to her residence at Enayet Bazar, where she was attended to by a doctor and her wounds had to be stitched. Soon after, her mother and her brother‑in‑law, T. W. 6 Dr. Alimad Ullah, arrived from his house on getting information from Dilwara's brother but Dilwara at that time was almost unconscious and her face had swollen after the stitches were given. P. W. 7 Mr. Ibrahim Akhand, the Assistant Regional Director of Radio Pakistan, Chittagong, also went to her house at about that time, in that same car viz. E. B. C.2044 being driven by the appellant who went to him at night and reported that Dilwara had jumped from the car and he escaped from the chase of people. Thereafter Mr. Akhand, Sabur, Abdur Rahman and Dr. Ahmed Ullah went in two cars to the spot where Dilwara was rescued by Sabur and Mafzal and they were shown the place of occurrence by Sabur and Abdur Rahman. They also saw the broken pieces of Churls lying on the road as well as the blood marks on the road. The appellant was also present at that time. On the following night at about 11 p.m. a first information was lodged with Double Mooring Police. The police took up investigation of the case and on its completion submitted charge‑sheet against the appellant and in due course a competent Magistrate held an enquiry into the matter and committed the appellant to the Court of Sessions where he was tried by an Assistant Sessions Judge. The prosecution examined eight witnesses, the first of whom is Dilwara Begum alias Dilara Alo, the victim girl. In her evidence in Court, Dilwara narrated the occurrence in details, as stated above. She was cross‑examined at length by the defence, but nothing could be elicited to cast doubt on the truth of her assertions. She comes of a respectable family and was at the time a student of Chittagong College. She was also an announcer of Radio Pakistan, Chittagong and used to travel to her residence from the Radio Station at Kalurghat at night by the Radio Pakistan Station Wagon No. E. B. C. 2044 of which the appellant was the driver. On the night of 4‑1‑1963, she and other employees of Radio Pakistan were going back to their respective residences in that car, being driven by the appellant. She stated that she was the only female occupant and as the car was proceeding from "Askar Dighi" after dropping one of the passengers there, she asked the driver to drop her on the way at Enayet Bazar at her resi dence before going towards Madar Bari and Agrabad to drop other occupants but the driver replied that he would drop her last and proceeded to Agrabad via Tiger pass and Railway over bridge and Dewanhat and from Agrabad went to Madar Bari disregarding again her request to drop her at Enayet Bazar before going to Madar Bari and after dropping the last male occupant at Madar Bari started towards a wrong direction along the Chittagong‑Dacca Trunk Road, beyond the town of Chittagong. Here we might give a topographical idea of the place for a better understanding of the movement of the vehicle. The Radio Station near Kalurghat lies to the north‑east of Chittagong town at a distance of more than three miles from Enayet Bazar which is in the heart of the town and Madar Bari lies across the railway line to the south of Enayet Bazar at a distance of more than a mile and Agrabad similarly lies to the south‑west of Enayet Bazar at a distance of more than a mile and the place where the girl was rescued on the Chittagong‑Dacca Trunk Road lies at a distance of about three miles from Enayet Bazar to the south‑west. According to the learned Advocate for the appel lant, there are two routes that could be followed by a vehicle coming from Kalurghat towards Enayet Bazar. Agrabad and Madar Bari and both these routes skirt Enayet Bazar and it is admitted by him that the vehicle could come to Agrabad via Enayet Bazar without making a long detour. It is, therefore, evident that Dilwara could have been conveniently dropped at Enayet Bazar before proceeding towards Agrabad or Madar Bari. In her evidence, Dilwara stated that the appellant was dragging her forcibly with his right‑hand towards him with bad motive. There is a note by the trial Court at this stage that while describing as to how she was being dragged by the appellant towards him, the witness felt shy in giving the des cription. There is no reason to disbelieve her evidence on the point. It is unthinkable that a girl with her social position and education would implicate herself with a person like the appellant falsely. The defence suggestion was that she was taking the car at Idgah to the residence of one Nurunnshar and as the car was passing at some speed by the Halishahar road, she suddenly asked the driver to stop and as the car was stopped the defective automatic door opened and she fell down and sus tained the injuries. She denied the suggestion and there is nothing to lend support to such a suggestion. The evidence of Dilwara has been substantially corroborated on material particulars by P. Ws. 3, 4 and

5. P. W. 3 is Abdul Subur, the owner of a Pan shop oil the Chittagong‑Dacca 'Trunk road near Pir Ali Shah Daragah. His evidence is that on the night of 4th January at 11 or 11‑3U p. m. while he was selling pan to one Mafzal (P. W. 5) at his shop on the Dacca Trunk road near Pir Ali Shah Dargah, Mafzal (P. W. 5) drew his attention to a vehicle which was at a distance of about 100 cubits to the south on the Dacca Trunk road from his shop. He and Mafzal then found that a lady who was identified as Dilwara in Court was being lifted forcibly into the vehicle and the lady was then crying out "save me, save me". The vehicle thereafter was proceeding slowly towards the north. He and Mafzal then took their stand in front of the vehicle on the road and found that the appellant had caught hold of the lady (Dilwara) with his right hand and was driving the car slowly with his left hand. They also saw that the lady was struggling to free herself from the clutches of the appellant. The witness then went to the right side of the vehicle and pulled the door, which opened and Dilwara imme diately jumped out and fell on the road with her face down. No sooner had this happened than the appellant drove the car away at a fast speed. They then saw that the lady had sustained injuries on her face which was bleeding profusely and her saree which was shown to the witness was stained with blood. He then carried the lady to the shop and gave her first aid and thereafter she disclosed her identity and stated to them that the driver, who was an employee of the Radio Office, had brought her for illicit intercourse. The lady then requested the witness and others present to take her to her residence at Enayet Bazar. The witness and Abdur Rahman (P. W. 4) then took her to her house at Enayet Bazar in a Baby Taxi, and narrated the occurrence to the mother of the lady as far as they had seen and known and thereafter some relatives of the lady and some officers of the Radio Pakistan went to the place of occurrence with them and they showed the place of occurrence and also the blood which fell from the body of the victim lady. The witness was cross‑examined at length but could not be con tradicted on any material point. Emphatic denial was given by this witness to a suggestion that Dilwara did not fall from the vehicle for the first time at a distant, of 100 cubits from the Pan shop of the witness and that she was not forcibly lifted back into the car by the appellant. P. W. 5 Mafzal Ahmed, owns a Tea shop near Pir Ali Shah Dargah on the Dacca Trunk Road. His story is the same as that of Sabur (P. W. 3), both of whom were attracted by the cries for help of Dilwara and rescued her. P. W. 5 also corroborated P. Ws. 1 and 3 that Dilwara told after rescue about the bad motive of the appellant. He could not be contradicted also on any material point by the defence. The next witness is P. W. 4 Abdur Rahman. His evidence is that he lives near Pir Ali Shah Dargah on the Dacca Trunk Road and on the night of 4‑1‑1963 at about 11 or 11‑30 p.m. he came out from his hoes; on haring the cries on the Dacca Trunk Road. When he came in front of P. W. Sabur's shop he found Abdus Sabur (P.W.3) and Mafzal (P.W.5) giving first aid to a girl whom he identified to be P.W.1. The girl fell on his feet and called him father and requested him to escort her to her residence at Enayet Bazar. The girl disclosed her identity and stated that while she was coming back from the Radio Station she was brought by the driver in wrong direction for illicit intercourse with her. The witness saw marks of injury on her and Mafzal also narrated what he had seen previous to the rescue of the girl. The witness along with Sabur, escorted Dilwara to her house and went back at night to the spot again with the relatives of Dilwara and Mr. Akhand and pointed out to them the blood‑stained spots on the road, the broken churls lying on the road, and narrated the story as far as he knew. Nothing has been obtained from this witness in cross‑examination by the defence to shake his credibility. The next important witness in the case is P. W. 7 Mr. Ibrahim Akhand who was the Assistant Regional Director of Radio Pakistan at Chittagong at the time. He stated that at midnight of 4‑1‑63 the appellant came to his house in a nervous condition and told him that after dropping the last man, namely, P. W. Mr. Shamsul Alam, he was going to drop P. W. 1 Dilwara and having found that the railway gate was closed he then diverted from that route and moved towards Dewanhat over bridge and then forgot to take a turn towards the north as he was busy in talking with P. W. 1 Dilwara and drove straight way along the Dacca Trunk Road in a wrong direction and after a while Dilwara became conscious that he was taking her to some other place and she became afraid but the appellant gave her an assurance that he would make a turn backward if lie could get a good place for turning but she could not believe him and jumped out of the car and was picked up and that he had again driven the car towards the same direction and Dilwara had again jumped out of the car for the second time and that the appellant had again implored Dilwara to board the car and she boarded it. The appellant further stated that he had been moving towards the same direction and Dilwara was crying and jumped out of the car near a shop and that the people of the surround ing area came and wanted to beat him and he then ran away with the car. Hearing this story from the appellant. Mr. Akhand was very much shocked and he immediately rushed to the house of Dilwara at Enayet Bazar along with Mr. Abu Fata, Regional Engineer, by the same vehicle E. B. C. 2044 being driven by the r appellant and on reaching the house of Dilwara found her in a state of almost unconsciousness and also saw injuries on ‑her face and a doctor was attending to her. He saw 2/3 persons who were reported to have saved the girl from the clutches of the appellant. Then be along with others went to the place of occurrence near the Dargah and heard about the occurrence from Sabur and Abdur Rahman and other persons who had gathered near the shop of Sabur at the time when Dilwara was rescued. His further evidence is that on the following day, being satisfied that the appellant as involved in this incident he drew up charge‑sheet against him and ultimately dismissed him from service. Next we take up the evidence of P. W. 6 Dr. Ahmed Ullah the brother‑in‑law of the girl. His evidence is that his mother -in‑law was in his house on that night and on getting information about Dilwara's accident he rushed with his mother‑in‑law to Dilwara's house and on reaching there found a doctor attending to the wounds of Dilwara (P. W. 1). Thereafter he went with Mr. Akhand to the place of occurrence. According to him, Dilwara was in a semiconscious state and could not speak for nearly a day. Next, we will consider the evidence of P. W. 2 Mr. Shamsul Alam. Mr. Shamsul Alam was a Technical Assistant of Radio Pakistan at Chittagong. His evidence is that on the night of occurrence when the vehicle reached "Askar Dighi" Dilwara saked the appellant to drop her next but the appellant was arrogant and replied that he would drop all the male passengers first and drove the car from in front of the Government House of Agrabad and then crossed over to the Tiger Pass Railway over bridge and dropped all the officers except Dilwara and himself. Then the car went to Madar Bari where he was dropped and then left with Dilwara in it with regard to the seating arrange ment in the car. Mr. Shamsul Alam stated in his cross‑examination that when the vehicle started from Kalurghat Radio Station Mr. Shahadat Ali, the Radio Engineer, sat in the right‑hand front seat of the car by the side of the driver and Dilwari did not sit in the right‑hand front seat of the car even after Shahadat Ali was dropped. He further said that as long as he was in the car, i.e., up to the time he reached Madar Bari, Dilwara did not occupy the right‑hand front seat of the car which was by the side of the driver's seat. His evidence in the Committing Court on this point which was put in under section 288 of the Criminal Procedure Code is : "Lady sat in the front seat‑right of driver's seat". When the Assistant Public Prosecutor drew Mr. Shamsul Alam's attention to this piece of evidence given in the Committing Court, he stated: "I do not remember if I stated before the Committing Court that lady sat in the front seat‑right of drivers seat. There is a gap of one cubit between the front seat and the driver's seat. Then says Shift‑in‑charge sat in the front seat. When it was vacated by him. Dilwara sat in the front seat. Dilwara s evidence on the point is that she occupied the right‑hand front seat when the car left the Kalurghat Radio Station and continued to sit there until she first jumped, out of the car and then again she jumped out of the car for the second time in front of the Pan shop on the Dacca Trunk Road. There is no other evidence on this point except that of Mr. Shamsul Alain (P. W. 2) who, as we have just quoted, stated in the Committing Court that the lacy sat in the front right‑hand seat (lady meaning thereby Dilwara) whereas in the trial Court he gave a completely different picture in his cross‑examination which shows that he was wilfully and knowingly trying to help the defence with a statement which was known to him to be false. From what have been stated above, we find that Mr. Shamsul Alain, who is an educated and respon sible Government servant, deliberately wanted to help the appellant who was involved in an offence of the most heinous character, by giving false evidence. This is all the evidence in the case. Upon this evidence, the learned Assistant Sessions Judge has in our opinion rightly found the appellant guilty of the offence under section 366 of the Pakistan Penal Code. It is evident from the statements of P. W. 1 which are corroborated on material particulars by other witnesses, that the appellant without any justification turned down the request of P. W. 1 Dilwara to drop her conveniently before other male occupants were dropped, forced, her to remain in the car till last and after dropping the last male occupant at Madar Bari, took the car away from her residence at Enayet Bazar in a wrong direction deliberately and speeded away out of Chittagong town and along the C.hittagOng Dacca Trunk Road. His intent in forcibly taking her away was to compel her to have illicit intercourse with him and this is evident from his conduct as narrated by P. W. 1 Dilwara. Therefore, the feeble submission of the learned Advocate for the appellant that it is at best a case under section 354 of the Penal Code is not at all acceptable. It is not a pure and simple case of molesting a woman. It is a clear case of abduction with intent that the woman may be forced or seduced to illicit intercourse and therefore the offence comes within the purview of section 366 of the Penal Code. The learned Advocate for the appellant (hen contended that there is a contradiction of a major nature between the statement made by Dilwara in her first information report and her evidence given in Court on the point as to whether she had two falls from the car or bad only one fall from the car. It is true that the first fall about 100 cubits away from the shop of P. W. 3 Abdul Sabur has not been mentioned in the first information report but it was evidently due to her passing through critical condition when she dictated the F. I. R. to Mr. Kalam. The question whether she fell once or twice from the car is not at all material. Her evidence that when first she jumped out of the car she was lifted into it forcibly by the appellant and thereafter she again jumped out when the door was opened by one of her rescuers, receives ample corroboration from P. Ws. 3 and

5. Hence the contention raised on behalf of the appellant is not at all tenable. Prosecution has, of course, failed to examine Dr. Najmul Amin, who treated P. W. 1 on the night of occurrence and stitched her injuries, but this was due to his absence, at the time of trial, from Pakistan.. The evidence of P. W. 1, that she had sustained injuries by fall on the ground while jumping from the car, is corroborated by P. Ws. 3, 4, 5, 6 and

7. The defence has not challenged that Dilwara comes of a respectable family, is an educated lady, is well‑connected, and above all is a girl of very high morals. This has been made evident by the struggles that she had made against the on slaughts of the appellant on her in the car when she was alone and helpless. In spite of her refusals, and continued resistance, the appellant continued to force her to agree to his immoral proposals. 'This has aggravated the offence that the appellant has committed. In these circumstances we find no reason to interfere with the findings of the learned Assistant Sessions Judge holding the appellant guilty under section 366 of the Penal Code. When this matter came up for hearing on the 6th may 1969 before us, we issued a Rule calling upon the appellant to show cause by the sentence imposed upon him should not be enhanced, as we were convinced that the punishment awarded to the appellant was not commensurate with the offence that he had committed. If offences of this nature, committed in such circumstances by persons in such capacities as that of the appel lant, are punished with sentences of only five years rigorous imprisonment when the law provides for a sentence of ten years'" rigorous imprisonment, then, in our opinion, it will be impos sible for any house‑wife or school or College‑going girl to use her own vehicle driven by her driver. For these reasons and also considering the seriousness of the offence committed by the appellant, we wanted to award him the maximum punishment under the law ; but since he has suffered two years in hajat before trial, we impose upon him a sentence of eight years' rigorous imprisonment and make the suo motu Rules for enhancement of sentence absolute. With this enhancement of the sentence of the appellant his appeal is dismissed. Let a copy of the judgment be sent to the Secretary, Ministry of information and Broadcasting (Broadcasting), Government of Pakistan Islamabad, concerning our observations about Mr. Shamsul Alain who is still, we are told, an employee of the Radio Pakistan. ABDULLAH JABIR, J.

‑I agree. S. A. H. Appeal dismissed