1983, (PLP)

(a) That victim girl Mst. Nighat Parveen was definitely over 14 years of age and further that she was secured from Bus Stop, where she was standing alone, shows, that she was neither kidnapped nor abducted as alleged by the prosecution and as such conviction of the appellant was not at all warranted. (b) That Mst. Nighat Parveen had gone to the shop of Photographer and had enough opportunities to seek assistance of the public, if she was really abducted or kidnapped, but there is nothing on record to show, that she took advantage of such situation, which goes to prove that she was the willing party. (c) The prosecution story as given in the F. I. R. is not believable, as it was not possible for the appellant to forcibly take away Mst. Nighat Parveen at IZ‑30 p. m. from Ghandhi Garden area, which is thickly populated locality, against her will. (d) That the learned trial Court had erred in coming to the conclusion that Mst. Nighat Parveen was below 18 years, she being consenting party is of no consequence, and consequently the appellant has been wrongly convicted.

3. The learned Advocate appearing for the State at the outset rightly conceded, that he does not support the impugned judgment as it is an admitted position, that Mst. Nighat Parveen was over 14 years and the evidence on record shows, that she was a willing party in going away with they appellant and as such question of her kidnapping or abduction does not arise.

4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment in question.

5. The prosecution case in nutshell is, that Mst. Nighat Parveen alongwith her mother, brothers and sisters lived in a house in Saleh Muhammad compound Dharmsiwada, Karachi and was a student of VIII Class in Fatima Jinnah Girls School situated in Gandhi Garden. It is the case of the prosecution, that prior to the occurrence the present appellant used to tease this girl on her way to the school and her return therefrom with the consequence, that she had complained against the appellant to her mother, who used to escort her up to the school and also to fetch her at the time of close of the school hours. She discontinued this practice, when a younger sister of the prosecutrix was admitted in the same school in VI Class, where after both the sisters used to go to the school together. On the fateful day at about I2 noon Nighat Parveen left for the school, but she did not return home till 9‑00 p. m. with the result that her mother and her maternal uncle P. W. Hamidullah searched for her in the locality, but they found no clue. On coming to know, that she used to be teased by the present appellant, who lived near Jubilee Cinema, Hamidullah lodged a report with Nabi Bux Police Station the next day at 2‑20 p.m, In the First information Report, he suspected the appellant to have kidnapped his niece. On the same day S. H. O. Aziz Ahmad in company of the first informant saw the girl coming from the bus stop of Saeed Manzil and secured her at the pointation of P. W. Hamidullah. She was taken to police station, where her statement was recorded in which she implicated the appellant having taken her away from the gate of school by deceitful means and having committed rape upon her against her will. S. H. O. secured the clothes from the person of the prosecutrix, which according to him were blood‑stained. On the night intervening 13th July, 1971 and 14th July, 1971 the present appellant led the investigating officer and mashirs Muhammad Sharif and Muhammad Rafiq to the roof of Ramna was building situated in Jamila Street and pointed out the police, where he had committed rape upon the girl. S. H. O. secured the clothes from the person of the appellant, in presence of same mashirs and, referred the girl to Police Surgeon, Karachi for the determination of her age and to the Lady Doctor of Civil Hospital, Karachi for ascertaining, whether rape had been committed upon her.

6. Upon examination of the girl Dr. Muhammad Umar Khan Police Surgeon, Karachi, certified that her age was between 16 and 17 years. He also examined the appellant and certified, that there was nothing to suggest or contradict the allegation of rape. He secured smear slides, which were sent to the Chemical Examiner, alongwith the clothes of the girl as well as the clothes of the appellant. On the point of rape the girl was examined by Lady Doctor Hussain Bano Memon, who certified that sexual intercourse had been done on her recently and that she was not used to sexual intercourse. In his report Exh. 20 Chemical Examiner certified, that no semen was detected on any of the clothes or the uritheral slides of the appellant and two vaginal slides of the prosecutrix. On, completion of necessary investigation the appellant was challaned in the lower Court and subsequently he was committed by trial Court to stand his trial, on the aforesaid charges, by the learned Additional City Magistrate Court No. XXXI, Karachi.

7. At the trial prosecution had examined Hamidullah P. W. I .Mst. Vakila Begum, P. W. 2, Mst. Nighat Parveen P. W. 3, Abdul Halim P. W. 4, Sadruddin P. W. 5, Muhammad Sharif P. W. 6, Jabboo P. W. 7, Chand Baboo P. W. 8, Farooq Chowdhry P. W. 9, Adalat Khan P. W. 10, Hafz Abdul Aziz P. W.

11. The deposition of Doctor Muhammad Umar Khan and Dr. Hussain Bano Memon recorded in the lower Court were tendered in evidence, under section 509; Cr. P. C. The statement of one Asadullah Khan recorded in the committal court was transferred to the file of trial Court under section 33 of the Evidence Act.

8. In his statement appellant Aijaz Ahmad has denied all the allega tions and stated that the witnesses have deposed against him, at the instance of P. W. Hamidullah. He has explained that Hamidullah used to get his vehicle welded at his shop. Instead of Rs. 25 he paid him Rs. 15, whereupon the appellant quarrelled with him. He has further alleged, that after about a week's time this witness brought police alongwith Mst. Nighat Parveen and falsely involved him in this case. He has however declined to lead any defence.

9. The prosecution case rests upon evidence of P. W. I Mst. Nighat Parveen, who no doubt has supported the prosecution case, but she being over 16 years of age, according to the evidence of Doctor and from the circumstances and the facts of the present case seems to be consenting party, no reliance can be placed on her evidence, without independent corroboration, which is not at all available in the present case. According to P. W. 1 Nighat Parveen, she was allegedly taken by the appellant from house to house, but still she did not seek assistance of any public person or complained to any one about her kidnapping or abduction. It may also be noted, that Mst. Nighat Parveen was found standing alone on Saeed Manzil bus‑stop, where on the pointation of her maternal uncle, she was secured. I find that P. W. Nighat Parveen was not cross‑examined, but in view of the circumstances narrated herein before me, still I would not be prepared to rely on her statement, without independent corroboration. The learned trial court, I find was swayed away with the idea that since Mst. Nighat Parveen was below 18 years of age, her consent was imma terial. This conclusion of the learned trial Court is not warranted by law and as such in my opinion prosecution has failed to establish offence under section 362, P. P. C. against the appellant, so as to warrant his conviction under section 366, P. P. C. As far as conviction of the appellant under section 376 is concerned, in my opinion prosecution has failed to establish the ingredience of section 376, P. P. C. as the age of Mst. Nighat is definitely over 14 years of age and from the circumstances and the facts of the present case, it is obvious, that she was consenting party to the rape, if any, committed on her by the appellant. In this con nection the evidence of Lady Doctor Hussain Bano Memon clearly shows that there was nothing in her examination of Mst. Nighat Parveen to suggest or contradict the allegation of rape specially as the Chemical Examiner's report were negative and as such the benefit of such doubt must go to the appellant.

10. In view of my above conclusions and findings, I am of opinion that the prosecution has failed to establish its case against the appellant beyond reasonable doubt.

11. Therefore, I allow the above appeal and set aside the conviction of the appellant under sections 366, P. P. C. and 376, P.P.C. and set aside sentences awarded to him on these counts and acquit him, by giving him benefit of doubt and consequently discharge the bail bonds executed by the appellant, who is on bail. Appeal allowed.