1986 P Cr (PLP)

"(1) Teeth 28 in number but space was 3rd molar found in lower jaw but not in upper jaw. (2) Breast morderately developed. Nipple an arealoe were also developed. (3) Pubic and exillary hair shaved. (4) Labia majora and manors were well‑developed. (5) Hymen. Small old tears all sides. Vaginal orifice admitted two fingers easily. Height four feet and 8 inches, weight 105 pounds. Due to the above facts and findinds I am of the opinion that she had suffered sexual intercourse. According to the opinion of the lady doctor the age of the examinee may be 16/17 years.

3. Riaz Hussain Shah (P.W. 3) is the complainant and father of the prosecutrix Mst. Bismillah. He also claims to be an eye‑witness of the occurrence. He claims to be a Pir and Mansib accused was his follower. He has stated that Mansib accused and his womenfolk were on visiting terms to his house. On the day of occurrence at about Ishawela time Mst. Razia sister of Mansib accused came to his house and took his daughter Mst. Bismillah with her on the pretext to ease themselves. After about‑ 4/5 minutes he heard hue and cry of his daughter Mst. Bismillah, on which he and his son Ashiq Hussain P.W. ran towards that side and saw that Mansib accused while armed with pistol, Muhammad Ali, Shah Sarwar, Muhammad Ali, Sarfraz and Aslam armed with Sotas were forcibly taking away his daughter Mst. Bismillah towards East. In the meantime Mokha and Syed Dildar Shah arrived at the spot and they also witnessed the occurrence. The complainant and his son Ashiq Hussain P.W. tried to rescue his daughter but Mansib Ali accused and his companions threatened them with pistol and Sotas with dire consequences and succeeded in taking away forcibly his daughter Mst. Bismillah. Thereafter, he tried for the restoration of his daughter through the Punchaiat. The accused first promised to restore her but later on he refused to return her. He then lodged the report Exh. P.C. with the police on 17‑8‑1982. He also produced a copy of birth entry Exh. P.A. of his daughter before the police. In cross‑examination the complainant stated that he did not get his daughter Mst. Bismillah bailed out. She was delivered to him by the police after her statement under section 164, Cr.P.C. and medical examination etc. According to him he did not know if the police also treated 11‑As daughter Mst. Bismillah as an accused person. He denied the defence suggestion that he had engaged his daughter Mst. Bismillah with Mansib accused who was living in his house in the capacity of would be son‑in‑law for the last about 10/12 years. It is further denied by him that Mst. Bismillah eloped with Mansib accused of her own accord.

4. Ashiq Hussain (P.W.4) is the real brother of Mst. Bismillah prosecutrix and he also claims to be an eye‑witness of the occurrence. He has supported the version given by his father Riaz Hussain Shah. In cross‑examination he has stated that the distance between his house and the house of Mansib accused was about miles towards East and Mst. Razia sister of Mansib Ali accused used to reside with him. He has denied the suggestion that Mansib accused was permanently living in their house for the last 10/12 years. Volunteered that Mansib accused was on visiting terms to their house occasionally. It is admitted by him that when Mst. Bismillah P.W. was delivered to them, thereafter the accused made an application to the police that Mst. Bismillah P.W. be placed in column of the accused person. Thereafter, when the complainant party learnt about it they applied for bail of his sister Mst. Bismillah and his father also accompanied him to Sahiwal for her bail. She appeared in the Court of Sessions Judge in connection with her pre‑arrest bail. Her father was present there when her bail was confirmed. He denied the defence suggestion that Mst. Bismillah was engaged with Mansib accused and that she had gone with Mansib accused of her own accord. Dr. Safdar Ali (P.W.5) on 13‑9‑1982 at about 11‑45 a.m. medically examined Mansib accused. In the opinion of the doctor there was nothing abnormal to suggest that he was not capable of performing sexual intercourse.

5. Dildar Hussain Shah (P.W.6) is another eye‑witness produced by the prosecution and he has also supported the version of Riaz Shah complainant. In cross‑examination he denied the defence suggestion that Mansib accused did not abduct Mst. Bismillah forcibly but in fact she had eloped with him of her own accord.

6. Met. Bismillah prosecutrix was examined as P.W.

7. She has deposed that on the night of occurrence she was in her house. Met. Razia sister of Mansib accused came to her house and asked her to accompany her outside in the field for answering the call of nature. Consequently she went with Mst. Razia. She came outside her house and was at a distance of 4/5 Karams from her house when Mansib accused while armed with pistol, Shahswar, Muhammad Ali, Muhammad Aslam and Sarfraz armed with Sotas met them. Mansib accused and his companions forcibly abducted her and took her to the house of Mansib accused. She raised alarm which attracted her father Riaz Hussain Shah, her brother Ashiq Hussain Shah, Dildar Hussain Shah and Mukha P.Ws. who witnessed the occurrence. Muhammad Ali exhorted and asked Mansib accused to fire at the complainant and his companion due to which the aforementioned P.Ws. did not intervene. The accused took her to a place which was at a distance of 2 miles from there, where a motor car was parked. Mansib accused and Muhammad Ali put her in the said car and thereafter tied her mouth, with a piece of cloth and took her to a place known as Bhara Ghar. Mansib accused detained her for 10 days and committed Zina‑bit‑Jabr with her during that period for several times. Thereafter, he brought her to District Sheikhupura and detained her there for about 15 days. There the accused also committed Zina‑bil‑Jabr with her during that period. Thereafter, the police recovered her from Sheikhupura from the possession of Mansib accused. The police got her medically examined. In cross‑examination she has stated that her statement was recorded by a Magistrate at Pakpattan Sharif at the instance of police, after her recovery. She stated that she appeared before the Court of Sessions twice or thrice. It is admitted by her that she had gone to the Court of Sessions Judge for her bail due to the apprehension Of her arrest by the police. She was confronted with her statement recorded by the Magistrate under section 164, Cr.P.C. where it was mentioned that Mansib accused alone abducted her at about 3‑00 a.m. and took her to Bharagarh, District Sheikhupura. She was further confronted with the said statement where it was mentioned that Mansib accused used to commit Zina‑bil‑Raza with her. It is further stated by her that Mansib accused when forcibly abducted her, got prepared her photographs with himself forcibly Exh. D.B. at Bhara Ghar after her abduction. It is denied by her that her photographs Exhs. D.B and D.C. were prepared at Malka Hans in her house. It is admitted by Mst. Bismillah that she had been menstruating for the last 9/10 months and not for the last about 5/6 years. She denied the defence suggestion that she was engaged with Mansib accused and that she went with him of her own accord and no one abducted her.

7. A.S.I. Ghulam Murtaza P.W. 8 is the Investigating Officer. On the statement of Riaz Hussain Shah complainant, he recorded the F.I.R. Exh. P.C. He went to the spot, inspected the same, recorded the statements of P.Ws. under section 161, Cr.P.C. He prepared rough site plan Exh. P.E. of the place of the occurrence and he arrested the accused Mansib on 11‑9‑1982 from Bus Stop Sheikhupura and also recovered Mst. Bismillah abductee from his possession at the same time. He prepared the rough site plan of the place of recovery of Mst. Bismillah from Mansib accused (Exh. P.F.). He recorded the statement of Mst. Bismillah under section 161, Cr.P.C. He also got her statement recorded by the Ilaqa Magistrate. He got her medically examined. He also got Mansib accused medically examined by the doctor. The complainant produced before him a copy of birth entry Exh. P.A. of Mst. Bismillah. After the completion of the investigation he challaned the accused Mansib Ali only. He denied the suggestion that he recovered abductee from a house situated in Sheikhupura city. He denied the suggestion that he considered Mst. Bismillah abductee as an accused person. He further denied the suggestion that he kept her in the police lock‑up for two days and thereafter, he got her statement recorded from the Ilaqa Magistrate on the third day of her recovery. It is admitted by him that Mst. Bismillah in her statement under section 164, Cr.P.C. had stated that Mansib accused committed Zina with her consent. It is further admitted by him that in view of her statement recorded under section 164, Cr.P.C., he went to arrest her as an accused in this case. He denied the suggestion that Mst. Bismillah P.W. went to Mansib accused of her own accord. He did not recover any pistol from Mansib accused and he did not take into possession any car on which Mansib accused abducted her.

8. Mansib accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations. When asked if he had anything else to say, he stated as under:‑‑ "I am innocent. Mst. Bismillah abductee was engaged with me by her parents. I had given amount of Rs.5,000 to her mother and father for the hand of Mst. Bismillah abductee. I was living in Sheikhupura for the last about 4/5 months prior to the present occurrence. Mst. Bismillah, the alleged abductee alongwith her mother, of their own accord, came to my house at Sheikhupura, I saw Mst. Bismillah abductee alongwith her mother. I inquired from her mother about her arrival on which she told that father of Mst. Bismillah abductee wanted to give the hand of Mst. Bismillah to some other person. That is why she took Mst. Bismillah with her and had come there. Thereafter, I took both Mst. Bismillah abductee and her mother with myself and came to my village Malka Hans and produced them before Riaz Hussain Shah P.W. who produced Mst. Bismillah and myself before the police. The police arrested me and Mst. Bismillah abductee." Mansib accused produced two witnesses in defence. Khizar Hayat (D.W.1) is the Chairman of Union Council Malka Hans. He has deposed that the Thanidar of Police Station Malka Hans had convened a Punchaiat at the police station where it was decided that Mst. Bismillah was an accused alongwith Mansib accused. The Punchaiat was of the view that Mst. Bismillah had eloped with Mansib accused. In cross‑examination this witness has denied the suggestion that Mansib accused forcibly abducted Mst. Bismillah P.W. Liaqat Ali (D.W.2) claims to be the photographer of Malka Hans. He has deposed that on 8‑2‑1982 he had taken photographs of Mst. Bismillah and Mansib accused in the house of Mst. Bismillah P.W. The same photographs were taken by him in his studio. A photograph Exh. D.B. was taken by him in the house of Mst. Bismillah whereas photographs Exh. D.C. was taken in his studio. In cross examination he has stated that he had entered the name of Mst. Bismillah and the accused Mansib his register, ` when he had taken their photos but he had not entered any number of his register on the photographs Exhs. D.B. and D.C. The witness had brought the negatives of the photographs of Mst. Bismillah and accused Mansib.

9. The trial Court convicted and sentenced Mansib accused as mentioned above.

10. I have heard at length the counsel for the parties who have taken me through the entire material available on the record.

11. It is vehemently contended by the learned defence counsel that the conviction of the appellant under section 11, of the Ordinance is not maintainable. Reliance in this behalf is placed upon the following observations of the Additional Sessions Judge;‑‑ "So statement of Mst. Bismillah abductee which was recorded under section 164, Cr.P.C. by the Ilaqa Magistrate, the copy of which is Exh. D.A. on record belies the prosecution version that she was abducted by Mansib accused and five others. I, therefore, do not believe this part of the prosecution version that Mst. Bismillah abductee was forcibly abducted by Mansib accused and five others." In her said statement under section 164, Cr.P.C. (EXh.D.A.), Mst. Bismillah has clearly stated that it was 3‑00 a.m. at night when she) was abducted by the accused. If the time of her alleged abduction was 3‑00 a.m. then she like an ordinary woman in normal circumstances, should have raised hue and cry which could attract the other members of the family sleeping in the house at that time. Because at that hour of the night she could not quietly be taken away by force by the accused. It is further a admitted fact that no alarm of any kind was raised by her at that time i.e. 3‑00 a.m. and, therefore, the only, plausible inference was that she was a consenting party and willingly eloped with the accused without making any hue and cry or making other attempt to inform her family members about her alleged forcibly abduction by the accused rather she must have quietly disappeared from her house without giving any opportunity to her family members to know her movements. Further, it is stated by her in the said statement Exh. D.A. that it was Mansib accused alone who abducted her from her house. The story of the prosecution on the other hand is that she was abducted by Mansib accused alongwith his companions, Shahsawar, Muhammad Ali, Aslam and Sarfraz. If according to her statement recorded under section 164, Cr.P.C. it was Mansib accused alone who abducted Mst. Bismillah then it could not be possible for a single person to success in taking the abductee away against her will. Even the subsequent conduct of Mst, Bismillah goes against the prosecution. According to her she was taken to a. place at a distance of about 2 miles away where a motor car was parked and then she was put in that car and taken to a place known as Bhara Ghar. She was kept there for about 10 days and then she was brought to District Sheikhupura where she was kept for about 15 days. During this period ‑of 25 days she raised no alarm or made any protest against her abduction to any one. It is not denied even by the learned State counsel that during this period she must have come across several persons at different places. According to the Investigating Officer, Mansib accused was arrested and abductee Mst. Bismillah was recovered together from Bus Stop, Sheikhupura where there must be several persons present but there is nothing on the record to show that she made any noise in any manner against her forcible abduction by the accused. Thus, from the time of her abduction on 14‑8‑1982 till her recovery on 11‑9‑1982 her conduct goes against her. If she was not a willing party then she I should have behaved in different way and should have shown resentment against her abduction to someone because during this long period she must have come across several persons as she was not kept in a Jungle or a lonely place.

12. Another circumstances which supported this inference is her photographs. The defence has placed on record her two photographs Exhs. D.B. and D.C. and she has not denied these photographs. A mere perusal of these photographs shows that she was a consenting party to these photos. In any case it cannot be said that her such photos were taken against her will. Further it is not denied that Mat. Bismillah was treated as an accused by the police after her statement under section 164, Cr.P.C. (Exh. D.A.). It was after this that she had applied for bail before arrest and the same was granted by the learned Sessions Judge. The treatment of the abductee as an accused person is a clear indication that she had eloped with the accused of her own free will. It is well‑settled principle that if an adult female eloped of her own accord with male co‑accused, the provisions of section 16 of the Ordinance are not attracted and male accused could not be F convicted of such abduction under the said section. Consequently the conviction of the appellant under section 16 of the Ordinance is liable to be set aside.

13. As regards the conviction of the appellant under section 10(3) of the Ordinance, the argument of the learned defence counsel is that from the facts and circumstances of the case it is clear that Mat. Bismillah was a consenting party to the sexual act committed by the appellant. According to medical report of the doctor, the age of the abductee at that time ‑ may be 16/17 years. Apart from the age, the prosecutrix herself admitted in her statement that she had been menstruating for the last 9/10 months. Thus, she had attained puberty and, therefore, could not be treated as minor. After taking into consideration the facts and circumstances of the case I am clearly of the view that Mat. Bismillah P.W. eloped with Mansib accused of her own free will and has been committing sexual intercourse with him with her consent. In other words she was a consenting party for the offence of Zina. In this view of the matter the offence would fall under subsection (2) and not under subsection (3) of section 10 of the Ordinance. The learned State counsel is not in a position to rebut this argument.

14. For the foregoing reasons the conviction and sentences of Mansib Ali appellant under section 16 of the Ordinance are set aside and his conviction from section 10(3) is altered to under section 10(2) of the Ordinance. In the circumstances of the case he is sentenced to undergo R.I. for 4 years and whipping numbering 10 stripes. He is also sentenced H to pay a fine of Rs.1,000 or in default of payment of fine further R.I. for three months. The appellant is also given the benefit of the provisions of section 382‑B, Cr. P.C. H. A. K. Appeal partly accepted.