P L D 1962 (W (PLP)

4. The appellants in their statements in Court have denied all the allegations made against them. Their case is that the two women Mst. Pathani and Mst. Adan are the lawfully wedded wives of appellants, Khudu and absconder Allah Bakhsh respectively. They claim that these two women have been with them for some years and that Mst. Adan had borne a daughter of absconder Allah Bakhsh whereas Mst. Pathani was seven months advanced in pregnancy carrying the child of appellant Khudu when these two women were snatched away from them and handed over to the complainant and his party. They further state that these two women were taken away from them by complainant Soomar on the pretext of the death of his grandmother. They have produced copies of 21 applications made by them to the Martial Law and the Civil Authorities pointing out the hoax that had been practised upon them and praying for the return of these two women to them. They have examined five witnesses in defence.

5. The evidence for the prosecution in this case consists of seven eye‑witnesses, namely, Mst. Pathani P. W. 2, Mst. Adan P. W. 3, Kando P. W. 4, Piro P. W. 5, complainant Soomar P. W. 6, Muhammad Machi Exh. 10 and Jamal Machi Exh.

27. There is also the corroborative evidence of the securing of the two abducted women from the possession of appellants Khudu, Bachu and Ajo as per mashirnama Exh. 34 and the evidence of mashir Khuda Bakhsh, Exh. 33. 1n view of the novel plea taken by the accused in this case, namely, that the two abducted women are the lawfully wedded wives of the appellants Khudu and his brother absconder Allah Bakhsh, It is necessary to examine this prosecution evidence very carefully in order to arrive at the truth in this matter.

6. There is firstly the evidence of the two women Mst. Pathani P. W. 2, and Mst. Adan P. W.

3. Their evidence is that they were quietly sleeping on the night in question with their menfolk in their house. Mst, Pathani was sleeping with her husband Muhammad Machi Exh. 10, and she states that her father Kando P. W. 4, her brother Piro P. W. 5, and her cousin Mst. Adan, wife of Piro, were sleeping near them in the same house. These two women describe how they were awakened soon after mid‑night by the barking of dogs when they saw the four appellants and absconder Allah Baksh entering their house armed with pistols and hatchets. The appellants caused injuries to their menfolk and then dragged the two of them along with their two infant daughters and carried them away from the house. They describe how they were detained for the night in an empty house in village Magian Jotar and how during the night the two appellants Khudu and Allah Baksh respectively committed rape upon each of them. They were secured by the Police who were accompanied by Kando, the father of Mst. Pathani, who identified both these women. These two women further admit that the appellants are their relations and had enticed them away once before. Mst. Adan states that on that occasion she and Pathani developed intimacy with Allah Baksh and Khudu and they both aver that it was due to the advent of Martial Law that they were restored to their parents. However, these two women stoutly deny having at any time married their lovers Khudu and Allah Baksh. They claim to be the lawfully wedded wives of Muhammad and Piro Machis. Besides, the evidence of these two women, there is the ocular testimony of Kando P. W. 4, Piro P. W. 5, Soomar Machi P. W‑ 6 and Muhammad Machi Exh.

10. Of these Piro, Soomar and Muhammad were injured having received these injuries at the hands of the appellants on the night of the incident in question. Thus, there can be no doubt that they were present at the time of the incident. The medical evidence shows that Soomar son of Pir Baksh bad five contusions, Muhammad son of Bhooro six contusions and Piro son of Kando two contused wounds. These witnesses fully describe how the appellants along with absconder Allah Baksh invaded their house on the night 1n question and how they carried away the two women along with their young daughters after having caused injuries to the three of them. They raised cries which brought to the scene Jamal and Ramzan Machis and Siddiq Kori. Prosecution witness Kando further narrates how he went along with the police party in search of the two abducted women and finally secured them from the possession of appellants Khudu, Ajo and Bachu.

7. In addition to these four eye‑witnesses there is also the evidence of Jamai Machi who came up on cries along with Ramzan Machi and Siddiq Kori. P. W. Jamal Machi states that he saw five persons in the house of the complainant, two standing outside while the remaining three were inside the house. These three who were inside the house were dragging Mst. Adan and Mst. Pathani along with their infant daughters and they threatened the witness in case be should come any nearer. The appellants then made off with the two abducted women and their infant daughters. P. W. Jamal admits in cross‑examination that these two women had previously been abducted by the same appellants and that they were returned through the Martial Law Authorities after the introduction of Martial Law in Pakistan. When they were so returned Mst. Adan already had a girl with her and Mst. Pathani was then pregnant. This witness further states that before these women were first enticed away by the present appellants, they were married to Piro and Muhammad Machis respectively.

8. There is also the circumstance of the recovery of these abducted women from the possession of these appellants as evidenced by the mashirnama Exh. 34, the evidence of Khuda Baksh mashir Exh. 33 and the evidence of the S. H. O. Serajuddin Exh.

36. This evidence is to the effect that it was on the 30th April 1959, ten days after the incident In this case that the police party secured these two women from the possession of appellants Khudu, Ajo and Bachu in Deh Richal, Taluka Tando Allahyar. The two mashirs for this mashirnama Exh. 34 are Allah Bachayo Khokar and Khuda Baksh Machi. This Allah Bachayo had shifted from his original place of residence to some unknown place and as he could not be traced an application was submitted to the Court below that the reserved mashir Khuda Baksh may be examined in his place. This Khuda Baksh Machi is a brother of the prosecution witness, Jamal Machi, and in his examination‑in‑chief he bears out the contents of the mashirnama Exh.

34. In his cross‑examination, however, he has admitted that the appellants had made several applications to the Martial Law Authorities and other officers praying for the return of their ladies whom they claimed as their wives. He also states that Mst. Adan had a daughter from Allah Baksh and Mst. Pathani also begot a daughter from appellant Khudu. He does not state whether the two abducted women were married to Allah Baksh and Khudu.

9. The above evidence for the prosecution has severely been criticised by Mr. Aftab Ahmed Akhund, appearing on behalf of the appellants Khudu arid Ajo. His main criticism is that the prosecution evidence consists of interested witnesses and that dis‑interested witnesses like Siddik Kori and Ramzan Machi who were available were yet not examined in Court. Next he has criticised the delay in the lodging of the first information report and he has also referred to the divergent testimony as to the date and time when these two kidnapped women were secured from the possession of the appellants.

10. Dealing with this criticism of the learned defence Advocate Mr. S. Murtaza Hussain, appearing on behalf of the State has pointed out that the disinterested witnesses who came up to the scene on hearing the cries of the complainant party are represented through the evidence of Jamal Machi Exh.

27. This witness has stated how he, Ramzan Machi tend Siddik Kori came up on cries and if one is examined from the three of them that is surely enough and it is not necessary to examine all the three witnesses on the same point. It must also be mentioned that the eye‑witnesses were all sleeping together that night in their house and that, as already pointed out by me in several similar judgments previously, when an attack is made at the dead of night upon a house‑hold it is only natural that the eye‑witnesses should be the inmates of that particular house‑hold. In such circumstances it cannot be helped that these eye‑witnesses happen to be closely inter‑related.

11. Concerning the alleged delay in the first information report my attention has been invited to the statement of the informant towards the end of his first information report wherein he explains the causes for the delay in recording this document. The informant first went and informed Jumo Kamdar who promised to bring their Zamindar Seth Haji Ghulam Ah Memon from Hydera bad and, in the meanwhile, requested the informant to inform Haji Muhammad Siddik Sirewal. Having done so the informant was waiting for the return of Jumo Kamdar throughout the day and as he did not turn up by evening the informant went of his own and lodged his first information report at 7‑0 p.m. at the police outpost.

12. With regard to the different dates given by the prosecution witnesses concerning the recovery of the abducted women since the written document, namely, mashirnama Exh. 34, shows that these women were only recovered on 30-4‑1959, it would follow that the oral evidence which is to the effect that they were secured on the 3rd or 4th day is erroneous. However, nothing much turns on this because both the evidence of the prosecution witnesses and the mashirnama discloses that these women were secured from the possession of appellants Khudu, Ajo and Bachu. Besides, the appellants themselves adroit that these women were secured from their possession. As pointed out above their case is that they are the injured ones in that their lawfully wedded wives have been carried away from them by the complainant party on the false pretext of the death of their grand‑mother and have since then not been returned to them.

13. The five defence witnesses examined by the appellants are on the point that the two abducted women were married to appellants Khudu and absconder Allah Baksh. D. W. 3 Mst. Singhar is the mother of the two brothers Allah Baksh and Khudu and she states that she got them married to Mst. Adan and Pathani respectively some eight or nine years ago. D. W. 5 Muhammad Yaqub claims to have read the nikah of Mst. Pathani with Muhammad Machi and of Mst. Adan with Piro Machi on the land of Seth Ghulam Ali Memon in Taluka Math, but this reading of the nikah was after the abduction of these two women by the appellants and their return to their parents.

14. I have closely and minutely examined and pondered over the evidence available on the record of this case both for and against the appellants. The case for the appellants is that they enticed away these two women while these women were still spinsters and unmarried. Mst. Pathani gave her age in Court as 20 years and Mst. Adan gave her age as 25 years. I find it difficult to believe that when they were previously enticed away by the appellants they were still unmarried. It seems to me to be incredible that Kando or Soomar would allow these girls to remain unmarried for so long after their attaining puberty. Therefore, I feel that these two women were married before they were first enticed away by the appellants. It is well known that with the introduction of Martial Law in October 1958, great emphasis was laid upon the return of abducted women and a general amnesty was offered to all those who restored and returned abducted or kidnapped women. At that time these two women were recovered from the possession of the appellants and the appellants now wishing to get them back decided to help themselves and to raid the houses of the complainant and carry away these two women themselves. There is sufficient evidence on the record of this case to substantiate the conviction of these appellants and, accordingly, I hold that the guilt of these appellants has been fully established in respect of the offences for which they have been convicted.

15. There remains a point of law that was raised by the learned Advocate appearing on behalf of the appellants, namely, that the learned Magistrate in the Court below tough exercising powers under section 30, Cr. P. C. had erred in awarding the appellants a total sentence of seven and a half years whereas under section 34, P. P. C. he could not impose a sentence of more than seven years. The learned Magistrate has convicted the four appellants under section 366, P. P. C. and has sentenced them to undergo seven years rigorous imprisonment each. He has further convicted appellants 1 and 2, Khudu and Ajo under section 323, P. P. C. and has sentenced them to undergo rigorous imprisonment for six months all the sentences to run concurrently. Admittedly, much of the sting disappears from this argument of the learned defence Advocate by virtue of the fact that the learned Magistrate has made the two sentences of seven years and of six months to run concurrently. Thus, the grand total, as it were, or the punishment imposed upon the appellants does not exceed seven years. A further argument may also be advanced in answer to this point of the learned defence Advocate and that is that in section 34, Cr. P. C. the language used is: "a sentence of death or of transportation or of imprisonment for a term exceeding seven years." The stress is to be laid upon the words "a sentence" and a distinction is to be drawn between one sentence and more than one sentence. Section 34 may well be construed to mean that no one sentence should exceed seven years. I am, therefore, not disposed to attach much importance to this argument of the learned defence Advocate particularly as the two sentences have been made to run concurrently so that the grand total does not exceed seven years. This appeal is, therefore, dismissed. K. B. A. Appeal dismissed.