1968 P Cr (PLP)

MUHAMMAD AFZAL KHAN, J.‑--Tasawar Hussain, aged 26 years, Hubdar, aged 26 years, Mst. Zainab mother of Tasawar Hussain accused (age not established) and Mst. Kaniz Fatima wife of Tasawar Hussain's brother (age not established) have been convicted by the Sub‑Divisional Magistrate, with powers under section 30, Cr. P. C. Gujar Khan, by his order, dated 29th July 1967, under section 366, P. P. C. for the abduction of Mst. Naseem Akhtar (P. W. 1), a minor girl. Tasawar Hussain has further been convicted under section 376, P. P. C. for having raped the abductee. He has been sentenced to three years' R. I. under section 376, P. P. C. and to three years' R. I. under section 366, P. P. C. Both the sentences have been ordered to run consecutively. He has further been sentenced to a fine of Rs. 100 in default whereof to two months' R. I. under both the above counts. He has also been sentenced to 15 stripes under section 4‑A of the Whipping (West Pakistan Amendment) Ordin ance, 1963. Hubdar, Mst. Kaniz Fatima and Mst. Zainab have been sentenced to two years' R. I, under section 366, P. P. C. and to a fine of Rs. 100 in default whereof to two months' R. I. each under the same section. Hubdar has further been sentenced to 15 stripes under the above‑mentioned Ordinance. The Convicts have appealed.

2. According to the prosecution story, Mst. Naseem Akhtar (P. W. 1) hereinafter described as abductee, who, at the time of the occurrence, was stated to be less than 14 years of age, was abducted on the night between 9th and 10th May 1965, which happened to be 7th of Moharram. She along with her sister Mst. Ghulam Akhter (P. W. 5) had gone to the house of one Babu Ghulam Muhammad in the village for mourning. During the mourning mafis, at about Khuftanwela, (between 9 and 10 p. m. in May) Mst. Zainab and Mst. Kaniz Fatima appellants asked MO. Naseem Akhtar to accompany them to their house for having tea with them. They had hardly gone out of the house when the abductee was told by the two women appellants to go for easing in the fields with them. When they went out to the fields for some distance, Tasawar Hussain and Hubdar appellants appeared there. Tasawar Hussain whipped out a knife and putting the abductee under the fear of death, took her along to village Badshah in the adjoining district (Jhelum). Hubdar the two women appellants also accompanied the party, to that village. Tasawar Hussain raped the abductee in that village during the night against her kill and without her consent. 13y the morning, the remaining appellants i.e. Hubdar, Mst. Kaniz Fatima and Mst. Zainab had disappeared from that village. Tasawar Hussain took the abductee to a Dhok (hamlet) where she was kept for a day and from there she was taken to village Malhal and then to Sohawa from where they went to Rawalpindi. In Rawalpindi she was detained near airport where an old man was present. They stayed there for sometime during which she used to be raped under the threat to her life. Because the police was following them, therefore, Tasawar Hussain took the abductee to district Montgomery from where she was taken by him to Lyallpur. He kept her there for some days and used to rape her, of course, under the same threat. At Lyallpur, Tasawar Hussain got some hint that the police was following him. Therefore, he hired a taxi and brought the abductee to Gujar Khan; where they were taking their meals in a hotel when the police saw them, arrested Tasawar Hussain and recovered the girl from him. It happened on 18th May 1965.

3. At the time of his arrest; Tasawar Hussain was carrying, amongst other things, a clasp knife Exh. P. 8 and travelling hand bag Exh. P.

10. He had an amount of only Rs. 4 with him at that time. These articles were taken into possession vide memo. Exh. P. D. which was prepared by Malik Zardad, Head Constable (P. W. 12) and witnessed by two persons; one of them is Muhammad Anwar (P. W. 6). From the person of the abductee, amongst other things, a shalwar Exh. P. 1 which appeared to be stained with blood and semen and a burqah Exh. P. 4. were recovered vide memo Exh. P. E. which was prepared and witnessed by the same P. Ws. as in case of Exh. P. D.

4. Reverting back to the night of occurrence; Mst. Ghulam Akhtar remained busy in the mourning during the night and came back to her douse in the morning. Not finding Mst. Naseem Akhtar there, on the enquiry of her father, she told him that the abductee had gone with Mst. Kaniz Fatima and Mst. Zainab accused at about Khuftanwela. On this the father of the abductee, Ghulam Bashir (P. W. 3), started a search for her. Gul Hussain Shah (P: W. 9) and Saddar Hussain Shah (P. W. 11) told him that they had seen the abductee in the company of the appellants at night. Ashiq Hussain (P, W. 7) who met him subsequently, also told him the same story adding that he saw them going towards village Dhok. Having ascertained the identity of the abductors, Ghulam Bashir approached the Chairman of the Union Council, named Aslam Raza Shah, for the restoration of the girl to him. The Chairman, summoned, near relations of Tasawar Hussain appellant in the Union Council Office, They promised that they will see that the abductee is restored . to her father. This promise was not fulfilled. Therefore, he (P. W. 3) lodged the report Exh. P. A. with Raja Muhammad Taj, Head Constable (P. W. 2) who happened to be in his village, on. 12th May 1965, at about 2 p. m. This report was sent to the police station on the basis of which a formal, case was registered, vide F. I. R. Exh. P. A/l. Ghulam Bashir (P. W. 3) also produced before' the police school‑leaving certificate of the abductee Exh. P. B. in which her date of birth is entered as 2nd November 1952.

5. The abductee was examined by Lady Doctor Miss Mujtaba (P. W. 8) on 19th May 1965, for age and rape. She was found to have been subjected to sexual intercourse. The Lady Doctor was told by the abductee that she was menstruating since the night before medical examination. The Lady Doctor after having noted the height, weight, axillary and pubic hair, nipples and breasts, came to the conclusion that the girl, on the day of her examination, was about 14 years of age. The vaginal swabs taken by the Lady Doctor were subsequently found to be stained with semen. The vagina, according to the Lady Doctor's examination, was spacious and easily admitted two fingers and the hymen was absent. In the opinion of the Lady Doctor, as she put it, the girl "had been used." No. X‑ray for ossification test was taken. However, the Lady Doctor was of the firm opinion that, at most, her view on the age of the girl being 14 years, could be stretched to the maximum limit of one year on either side i.e. the girl could be from 13 to 15 years of age. About the time of the sexual act having been committed (as to how much time before the examination was conducted) the Lady Doctor did not give any definite opinion. Tasawar Hussain appellant, "as examined by Dr. Abdur Rahim (P. W. 4) who found him to be 27,128 years of age and physically lit to perform the sexual act No marks of injury were found either on the person of the abductee or of Tasawar Hussain,

6. At the trial, the prosecution story was sought to be proved by the statements of the abductee (P. W. I), her sister Mst. Ghulam Akhtar (P. W. 5) and her father Ghulam Bashir (P. W. 3). They fully supported the version given above. In addition to the above‑mentioned evidence, three other eye witnesses, namely. Ashiq Hussain (P. W. 7), Gul Hussain Shah (P. W. 9) and Saddar Hussain Shah (P. W. 11) were produced to prove that the appellants were seen taking away the abductee at different places in the vicinity of the village of the parties. This evidence is in the nature of as in the Punjab is known, Wajtakkor. The above items of direct evidence are sought to be supported by the arrest of Tasawar Hussain and the recovery of the abductee from him witnessed by Muhammad Anwar (P. W. 6) and Malik Zardad (P. W. 12). It is significant to note that the articles recovered from both of them and mentioned above are also sought to be used against Tasawar Hussain appellant. P. W. 1, P. W. 3 and P. W. 5 are sought to be corro borated by medical evidence and the school‑leaving certificate Exh. P. B. for the purpose of proving the age of the abductee. The medical evidence, as detailed above, is sought to corroborate the same witnesses so far as the questions of rape is concerned.

7. The defence plea of Tasawar Hussain appellant is that the father of the abductee took a loan of Rs. 150 from the appellant's brother. The appellant is running a shop at Rawal pindi. He went to his village Sayed and demanded the money from the abductee's father, as a result of which a quarrel ensued between the two and that is why he has been falsely implicated in the case. Hubdar appellant has explained that he has been falsely implicated, because he belongs to the brotherhood of Tasawar Hussain appellant. The plea of Mst. Kaniz Fatima, the sister‑in‑law of Tasawar Hussain, is that she being the wife of Tasawar Hussain's brother who had a dispute with the abductee's father, has been implicated to fill a gap in the case. To the same effect is the plea of Mst. Zainab, the mother of Tasawar Hussain appellant who said that she has been implicated to fill the gap because of her relationship with Tasawar Hussain and enmity with the father of the abductee.

8. Four witnesses were produced in defence. Sher Muhammad Shah (P. W. 1) sought to prove the alleged loan obtained by the father of the abductee mentioned in the defence plea. Faqir Sultan (D. W. 2) sought to prove that Tasawar Hussain was arrested at Rawalpindi from his shop and that he remained present in the shop during the whole month. In a way he sought to prove the alibi of Tasawar Hussain. Abdur Rehman (D. W. 3) claimed to be the bearer of the hotel from where the abductee was recovered from Tasawar Hussain appellant. He tried to prove that no such recovery or arrest took place in that hotel at about the time that it is alleged by the prosecution to have taken place. Dr. Ghulam Sarwar (D. W. 4) was produced to prove that Tasawar Hussain appellant has only one natural eye. The other is artificial and from the natural eye he could not see beyond two yards. The intention of the defence in producing this last‑mentioned witness, presumably, was to show that it was impossible for Tasawar Hussain to have abducted Mst. Naseem Akhtar during night time with such a weak‑ eye‑sight.

9. The learned trial Magistrate discussed the whole of the prosecution as well as defence evidence and also the statements of the appellants and came to the findings that the evidence produced by the prosecution was reliable and the defence evidence was not worth reliance. Having found the‑ appellants guilty he has convicted and sentenced them, as mentioned in the earlier part of this judgment.

10. Sh. War Mahmood, the learned counsel for the appellants, raised the following contentions:‑ (i) That the story of the abductee going to the house of Ghulam Muhammad ‑‑accompanied by her sister, is ‑a mere con coction to conceal the fact that she was a consenting party in this according to him, so‑called kidnapping. He has pointed out some discrepancies in the statements of the P. Ws. in this behalf. He has further submitted that none has been produced from the house of Ghulam Muhammad, from where the abductee was taken away, nor any body from ‑the persons who were attending the mourning majlis. He particularly pointed out the admission by P. W. 1. in cross‑examination that there were about one hundred mourners in that majlis. He has, in this connection, also criticised that the mother of the girl has not been produced who was also present in the majlis according to P. W. 1 (ii) That the statements of Ashiq Hussain (P. W. 7), Gut Hussain Shah (P. W. 9) and Saddar Hussain Shah (P. W. 11) should not be believed; because they having seen a minor girl with the appellants at odd hour of the night and, according to some, having carried burqah, did not behave in a natural way in not suspecting something wrong with. her going' with the appellants and not doing anything there, nor informing the parents of the girl immediately thereafter. He further submitted that neither the fact that these witnesses saw the appellants in the act of taking away the abductee nor the conversation which they had with the appellants, was put to them in their examination under section 342, Cr. P. C. Therefore, in any case, the statements of these witnesses could not be used against the appellants. He also pointed out some discrepancies in the statements of these P. Ws. inter se and with the statements of the abductee (P. W. 1), and her, sister (P. W. 5). (iii) That the delay in the F. I. R. being inordinate, has not been explained. In fact, the attack in this connection is not the lack of explanation; but is in respect of the proof of explanation. The contention of the learned counsel is that the Chairman of the Union Council who was said to have intervened during this period, has not been produced to prove the explanation. (iv) That the abductee was a consenting party from the very beginning and, thus in absence of any corroboration her statement cannot be relied either for abduction or for rape. That the statement of the Lady Doctor was not very helpful because she did not conduct the ossification test which was essential under the accepted rules of evidence. Therefore, there was no clear proof of the age of the girl being less than 14 years at the time of the occurrence, nor has it been established that she was less than 16 years at that time. In this view of the factual position, the learned counsel further contended that the girl was more than 16 years and thus no offence under section 366, P. P. C. has been committed; and because she was a consenting party, therefore, no offence under section 376, P. P. C. has been committed. The learned counsel, in the alternative, suggested that even if she was less than 16 years, according to the Lady Doctor, she could be 15 years of age; and if that was so, she being a consenting party, at least, no offence under section 376, P. P. C. has been committed because the age of consent for that offence is 14 years. (vi) Lastly; the learned counsel argued that the two women accused had, admittedly, strained relations with the family of the abductee and they had been stopped from visiting the house of the father of the abductee. He further submitted that it was not likely that the mother 'and sister‑in‑law of Tasawar Hussain appellant would have joined him in the act of either abduction or of rape. It is suggested that they have been falsely implicated as a retaliation to disgrace the family of Tasawar Hussain appellant.

11. It is correct that none from the house of Ghulam Muhammad, where the majlis of mourning was being held, has been produced to show that the two women accused took the abductee away from that majlis on the pretext of taking tea. It is also true that none of the mourners who were said to be hundred in number, has been produced to prove the above fact. Further it is significant to note that while the abductee and. her sister state that the two women accused took the abductee from the majlis for taking tea, Saddar Hussain Shah (P. W. 11) has stated that the two women accused summoned the abductee from the house of Ghulam Muhammad. The two versions, stated above, of how exactly the abductee was taken away from the majlis do not reconcile. It is further significant to note that Mst. Ghulam Akhtar (P. W. 5) did not suspect anything during the night and told her father about this incident only in the morning and that too on his enquiry. These circumstances throw some doubt on the prosecution story that the abductee was taken away from the house of Ghulam Muhammad.

22. Similarly, the statements of P. W. 7, P. W. 9 and P. W. 1 l .who are said to have seen the appellants taking away the girl at night time, do not inspire confidence. I here are, no doubt, some discrepancies in their statements inter se which make their version of the case doubtful. But the circumstance which appears to me to be more important is that these witnesses did not exhibit any natural reaction on seeing the abductee with the appellants. Admittedly, these witnesses knew the families before and they recognised the girl. It is also an admitted fact that the time was an odd hour of the night and, according to these witnesses, the girl was carrying a burgah. They did not find any member of the family of the abductee with the party. It may be mentioned here that the abductee belongs to a Rajput family while the appellants are stated to be Awans. In these circum stances, the age of the girl being very tender, the incident should have given rise to serious suspicion in the minds of these witnesses if they had seen it and they would have either prevented the taking away of the girl or would have raised hue and cry; and, in any case, would have immediately informed the father of the abductee. They did not do any of these acts. On the contrary, they did not disclose this fact to anybody till the next day. They did not put any question to the abductee at the time that each one of them saw the appellants taking her away. There is an additional ground for doubting the statements of P. W. 9 and P. W. 11, who, it appears, took an active part in the investigation of the case and also went with the police to Layallpur for the recovery of the girl. This is admitted by P. W. 12 Malik Zardad Head Constable About Ashiq Hussain (P. W. 7), it is to be noted that he belongs to a different village and is only a chance witness. In view of the above circumstances, it will not be safe to rely on the statements of these witnesses when they say that they saw the appellant taking away the girl on the night of occurrence. In addition to the above infirmity in the statements of these P. Ws. I feel that the appellants have been prejudiced by the fact that the evidence in the statements of these P: Ws. whether it related to their observation or their certificate also shows that her attendance was only for 20 days, yet she is shown to have remained on the school rolls from 1957 to 1965. The date of issue of the certificate is also 16 5‑

65. These entries create a lot of doubt in respect of the genuineness of this certificate. It may be that there is some explanation for the entries e.g. that they have been made by an incompetent teacher, but it would not be safe to rely on such a certificate, particularly when the person who made the entries has not been examined. Therefore, I exclude this evidence from consideration. However, the evidence that I have detailed above, even in the absence of this certificate, is sufficient to show that the abductee was less than 14 years of age on the date of the occurrence. It may be mentioned here that the learned counsel cited Jnanendra Nath Shaha v. Abdul Khuleque and others (P L D 1964 Dacca 228) in support of the contention that the ossification test was necessary. That authority does not lay this as an unavoidable rule of practice. It was at an interlocutory stage that the matter came before the Dacca High Court and the learned Single Judge was pleased to order that an ossification test may be conducted. Therefore, in my view, that decision is not relevant to the present case. It cannot be held that without any ossification test, in no case, age can be proved. In case that is the ratio decidendi of the judgment of the Dacca High Court, which the learned counsel for the appellants canvassed, I most respectfully disagree with this reasoning and am constrained not to follow the law laid down in that judgment.

16. In view of my finding that the girl, on the day she was kidnapped/abducted was less than 14 years, the question as to what is the offence committed, becomes very simple. It is clear that she being less than 14 years of age, even if she was a consenting party, the offence under section 366, P. P. C. was committed as soon as she was taken away from the guardianship of her father; with the intent that she may be compelled, or knowing it to be likely that she will be compelled in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse. The question as to what was the intention or the knowledge of the appellants does not pose any difficulty. Tasawar Hussain is not related to the girl. Then he with the help of others was taking away the girl from the guardianship of the father, evidently he had no other intention but to force or seduce her to illicit intercourse. At least, he had the knowledge that she would likely be forced or seduced to illicit intercourse. In this case there is the additional evidence of his intention that, in fact, he forced her to illicit intercourse. The fact that she was raped by him during the days he kept her with him, has been proved by the statement of the girl which is corroborated by the statement of the Lady Doctor, the presence of semen in the vagina of the abductee, and the recovery of a clasp knife from the possession of Tasawar Hussain at the time of his arrest. Even if she was a consenting party at the time of her being taken away from the guardianship of her father, which I am unable to hold cate gorically, it cannot be held that she was a consenting party when conversation with the appellants, was not put to the appellants when they were examined under section 342, Cr. P. C. Therefore, I will keep the statements of these witnesses out of considera tion.

13. It is true that there is considerable delay in the lodging F. I. R. in this case. However, the father of the abductee has given a cogent explanation for that. It is not unusual in our village life that after an abduction takes place the parents do make an effort for the restoration of the girl through respectables without taking resort to the police authorities. The abductee belongs to Rajput family. Tasawar Hussain appellant in his statement before the Court has stated that he is an Awan; but Hubdar stated that he is a hajjam. The F. I. R. shows that they are the hajjams to the village. In these circumstances, the father of the girl, to my mind, would have done everything possible to save his honour by securing the girl back without doing any thing which may give publicity to it. The failure to produce the Chairman to prove the explanation is also not fatal. The father of the girl has given a straight forward statement in respect of this explanation and in view of the circumstances narrated above, I do not think that that statement needed any corroboration, I accept the explanation given by the father of the abductee for the delay in the F. I. R. which therefore is inconsequential.

14. The learned counsel for the appellants laid great stress on the question that the abductee was a consenting party. In view of my findings follow immediately, the fact that the girl was a consenting party loses all significance. However, I have an impression, after reading her statement, that there is a possibility that she was a consenting party. Therefore, she did not raise any hue and cry throughout this long period from 9th May 1965 to 18th May 1965, and went about from place to place with Tasawar Hussain appellant without having utilised the opportunity of making it known to the public that she was being abducted by Tasawar Hussain. It is significant that no marks of injury, have been found either on the person of the abductee or of Tasawar Hussain. There is another alternative explanation also and that is that the girl is of very tender age. Tasawar Hussain ap pellant, according to Dr. Abdur Rahim, is about 27/28 years' old almost double her age. He is shown to have been armed with a clasp knife, at least, when he was arrested. Therefore, it would show that she remained so overawed from the man that she thought that if she disclosed her plight to any body else she might be killed by him. The statement of the abductee that she was taken to Lyallpur by Tasawar Hussain where he learnt that the police was following them, is corroborated by P. W.

12. In cross-examination he stated that he had visited Layallpur in search of the abductee and the appellants. Her statement is further supported by the fact that Tasawar. Hussain was carrying a travelling hand bag when he was arrested in the hotel. However, if both these explanations are possible, then following the princi ple of giving benefit of every reasonable doubt to the accused person, the first possibility can be adopted. But it does not mean that the second possibility is ruled out. Therefore, without holding that the girl was a consenting party, I will not hold that she was taken away from her father's house/guardianship by the use or threat of force. The learned counsel appearing for the state also felt some doubts about the conduct of the abductee and, at one stage, actually conceded that she was a consenting party; but he also adopted the line that she was under constant threat of being killed.

15. In this case, the question of age of the girl is very vital. She has given her age as 14 years. (sic) months, on the day she was examined in Court i.e., 23rd August 1965. This statement about her age was on oath. No cross‑examination on this witness was directed to show that she gave her age incorrectly. Ghulam Bashir (P. W. 3) who is the father of the abductee, also gave her age as 14 years on the day he was examined i. e., 25th October 1965. It was in his cross‑examination that the defence brought out that she was born in 1952. Even if we accept 1st January 1952; as the date of birth of the girl, she was less than 14 years on the day of the occurrence. There is nothing in the cross‑examination of this witness to show that he has made an incorrect statement in respect of the age of the girl. No circumstance relative to the ages of the other children of Ghulam Bashir was brought out to show that the age given by him of the abductee could be incorrect. This statement coupled with the fact that zit the time the abductee was examined as P. W. I the defence did not point out to the learned Magis trate that she appeared to be of more age than what she was stating oil oath, shows that the girl by appearance also was of 14 years of age. Otherwise when age is disputed and an observa tion of the Court is sought by the defence, the Court makes a note about the request and the observation. 1 have not found any such request/objection or any note to that effect by the Court in the record of the case. The statements of the abductee and her father are, according to my mind, the substantive evidence to prove that the girl was of less than 14 years of age at the time of occurrence. The statement of the Lady Doctor (P. W. 8) and the evidence provided by the school‑leaving certificate Exh. P. B. are only of corroborative nature. The Lady Doctor has given sufficient data and reasoning to show that the opinion about the age of the girl being 14 years was" correct. I entertain no doubt about this opinion of the Lady Doctor and find it as sufficient corroboration of the statements referred to above, if any corroboration is needed. In fact, to my mind, no corroboration is needed. The fact that the Lay Doctor in her cross‑examination stated that. ossification test is a surer test for determination of age and that it was not done in this case, will not make any difference. The learned counsel for the appellants referred me to the commentary on the Law of Evidence by M. Munir. Fourth Edition, Volume I, page 352, under heading "Medical opinion as to age". The learned counsel wanted to take advantage of the following sentences occurring in this commentary:-- "Where a doctor forms his opinion as to the age of a person, judging by his appearance, his voice and. his teeth", no weight can be attached to such evidence. However, it has been held that the ossification test is no doubt a surer test for deter mining age." The learned counsel ignored the observations made by the learned author before and after the above quotation. Those observations are‑ "Medical evidence as to the age of a person merely renders probable or improbable the other evidence in the case as to that person's age. Although such evidence is valuable yet it is not by itself sufficient to fix the exact age . . . . . . . .. . . . But the opinion of a doctor as to age based on other factors should not be brushed aside merely because he did not conduct the ossification test. It cannot possibly be said that a doctor's opinion as to a person's age is not entitled to any greater weight than that of any other person. Even if the indications from which age can be inferred are known to a layman, a layman is not in a position, as a medical man is, to examine a person with a view to discover ing the presence or absence of those indications." I have already held that the substantive evidence as to age in this case is the statements of P. W. 1 and P. W.

3. The statement of the Lady Doctor, in my view, fully corroborates the substantive evidence mentioned above. And the fact that the Lady Doctor has given the possibility of the age on two opposite limits i. e. 13 and 15 years, does not detract from the substantive evidence. The fact that in lady Doctors opinion the age could be 13 years, also corroborates the statement of the father that the girl was born in 1952. It is significant to note that the defence has produced no evidence on this question. The learned counsel vehemently attacked the genuineness of the school‑leaving certificate Exh. P. B. I have carefully examined this certificate. It has the following entries: (1) Date of issue of the certificate .16‑5‑65. (2) Date of birth 2‑11‑52 (3) Date up to which the student studied 16‑5‑65 (4) Date of entry in the school 24‑10‑57 (5) Class in which the student was admitted 24‑10‑57, 2nd Class (6) Date of striking off the name ..16‑5‑65 (7) Dates of attendance in the school from 1‑4‑65 to 16‑5‑65 (8) Total number of lectures ..36 (9) Total lectures attended .20 This certificate appears to have been signed by the Headmistress of a Government Primary School. The student is entered as in Class II. Some of the entries are obviously impossible. The certificate shows that the girl attended the school up to 16‑5‑65 while in fact, she was abducted on the night of 9‑5‑65 and was recovered on 18‑5‑

65. Although in her statement the girl states that she attended the school only for a short time and the certificate also shows that her attendance was only for 20 days, yet she is shown to have remained on the school rolls from 1957 to 1965. The date of issue of the certificate is also 16 5‑

65. These entries create a lot of doubt in respect of the genuineness of this certificate. It may be that there is some explanation for the entries e.g. that they have been made by an incompetent teacher, but it would not be safe to rely on such a certificate, particularly when the person who made the entries has not been examined. Therefore, I exclude this evidence from consideration. However, the evidence that I have detailed above, even in the absence of this certificate, is sufficient to show that the abductee was less than 14 years of age on the date of the occurrence. It may be mentioned here that the learned counsel cited Jnanendra Nath Shaha v. Abdul Khuleque and others (P L D 1964 Dacca 228) in support of the contention that the ossification test was necessary. That authority does not lay this as an unavoidable rule of practice. It was at an interlocutory stage that the matter came before the Dacca High Court and the learned Single Judge was pleased to order that an ossification test may be conducted. Therefore, in my view, that decision is not relevant to the present case. It cannot be held that without any ossification test, in no case, age can be proved. In case that is the ratio decidendi of the judgment of the Dacca High Court, which the learned counsel for the appellants canvassed, I most respectfully disagree with this reasoning and am constrained not to follow the law laid down in that judgment.

16. In view of my finding that the girl, on the day she was kidnapped/abducted was less than 14 years, the question as to what is the offence committed, becomes very simple. It is clear that she being less than 14 years of age, even if she was a consenting party, the offence under section 366, P. P. C. was committed as soon as she was taken away from the guardianship of her father; with the intent that she may be compelled, or knowing it to be likely that she will be compelled in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse. The question as to what was the intention or the knowledge of the appellants does not pose any difficulty. Tasawar Hussain is not related to the girl. Then he with the help of others was taking away the girl from the guardianship of the father, evidently he had no other intention but to force or seduce her to illicit intercourse. At least, he had the knowledge that she would likely be forced or seduced to illicit intercourse. In this case there is the additional evidence of his intention that, in fact, he forced her to illicit intercourse. The fact that she was raped by him during the days he kept her with him, has been proved by the statement of the girl which is corroborated by the statement of the Lady Doctor, the presence of semen in the vagina of the abductee, and the recovery of a clasp knife from the possession of Tasawar Hussain at the time of his arrest. Even if she was a consenting party at the time of her being taken away from the guardianship of her father, which I am unable to hold cate gorically, it cannot be held that she was a consenting party when she was subjected to sexual intercourse. In any case, she being less than 14 years of age, even if she would have consented to the sexual intercourse, it would have amounted to rape. There fore., in every aspect it was an illicit intercourse which is mentioned in section 366, P. P. C. Thus the offence under section 366, P. P. C. has been proved to have been committed. The offence under section 376, P. P. C. has also been proved to have been committed. I have already discussed this question and Held that though consent cannot be held to be present, yet even if the consent would have been there, the offence of rape would have been committed which is punishable under section

376. P. P. C. The learned counsel in this connection cited Ansar Hussain. The State (P L D 1963 Kar. 130) and also referred to page 1110 of the commentary on Pakistan Penal Code by Shaukat Mahmood. The Karachi case does not help the learned counsel because in that case tile trial Court had held that the offence under section 366, P. P. C. had been committed and had acquitted the accused in respect of offence under section 376, P. P. C. In the High Court, Raymond, J. was pleased to observe that there was no appeal against acquittal tinder section 376, P. P. C. Therefore, his Lordship could not go into that matter. But in so far as the conviction under section 366, P. P. C was concerned it was upheld. In this case there is absolutely no justification for Bolding that no rape has been committed. The citation from Shaukat Mahmood's commentary, I have noted, does not help the appellants.

17. The learned counsel for the appellants, in a lukewarm manner, referred to the plea of defence to so far as the alleged dispute over the borrowing of money by the father of the abductee from the brother of Tasawar Hussain is concerned. It is very amusing to note that the defence version suggested to P. W. 1 was that the parents of the girl wanted to marry the abductee with Tasawar Hussain accused and it was on his refusal, because of her doubtful, character, that he had been falsely implicated. It is also significant to note that the defence taken by Tasawar Hussain was not put to the father of the abductee. The whole defence version produced by the appellants has been artfully considered by me and is not worth mentioning in this discussion. The whole of it is an after thought. I also agree with its evaluation by the carried trial Court. He may be mentioned that the effort by Tasawar Hussain appellant to show that lie had very weak eye‑sight, was neither put to any of the witnesses who belonged to his village nor was it put to Dr. Abdur Rahim (P. W. 4) who had examined him earlier. It is very significant to note that the trial Court, in its judgments has observed that Tasawar Hussain appellant lead been coming to the Court without ally help on every dale of hearing. This evidence also appears to be an after‑thought because Tasawar Hussain appellant has not mentioned this fact about leis eye‑sight in his statement under section

342. Cr. P. C. Moreover, I am confident that Tasawar Hussain's complicity in tile crime is proved beyond any doubt. There is no reason why the abductee and her family without any previous enmity, should implicate Tasawar Hussain for the abduction and rape which, undoubtedly, affects the reputation of their family. Moreover, the statements of Muhammad Anwar (P. W. 6) and Malik Zardad Head Constable (P. W. 12) clearly show that the abductee was recovered from Tasawar Hussain when he was carrying a knife and a travelling hand bag. Nothing has been brought out in the statements of these witnesses to doubt this version. If that is so, the fact is sufficiently proved that Tasawar Hussain was the person who abducted the girl and then raped tier, of course, with others' help:

18. The next question in this case is as to the guilt or innocence of the appellants other than Tasawar Hussain. There is not even an iota of evidence on the record that the abductee or her family has any grudge against Hubdar appellant. There is no reason why he should be falsely implicated along with Tasawar Hussain. He has stated that he falsely implicated related to Tasawar Hussain, therefore, he has been falsely implicated. There might be many male relations of Tasawar Hussain. It is unimaginable that any one would have been selected by the abductee's family without any reason. The statement of the girl that she was abducted by Tasawar Hussain who was helped by Hubdar, is very natural. She in her cross‑examination has stated that Hubdar appellant lifted her on his shoulders while taking her away from the village, when she tried to raise an alarm. This is quite natural. Tasawar Hussain was taking away a young girl of a Rajput family of the village. No doubt, he had armed himself with a clasp knife yet he would be in the need of some help in case an occasion arises. Therefore, it was natural that he would be accompanied by some helper. And if that is so, there is no reason to disbelieve the girl when she says that helper was Hubdar. Thus I have no doubt in my mind that he has been rightly found to be guilty.

19. The participation of the two women appellants i.e. Mst. Kaniz Fatima and Mst. Zainab has presented some difficulty and given anxious thought. The discrepancy in the statements of the abductee and her sister on the one hand and Saddar Hussain Shah (P. W. 11) on the other on the point of the taking away of the girl from the house of Babu Ghulam Muhammad coupled with the fact that nobody from that house or from the majlis of mourning has been produced to support this part of the story that the two women appellants took her away, casts some doubt on the correctness of that part of the story. This view is somewhat strengthened by the possibility mentioned in the earlier part of this judgment that the girl might have been a consenting party at the stage of her being taken away from her father s guardianship. It is also very unusual that the sister of the abductee Mst. Ghulam Akhtar (P. W. 5) did riot notice the absence of her sister till morning time: when she disclosed the incident of her having been taken away by the two women appellant only on the enquiry of her father. 'There is also conic force in the argument of the learned counsel for the appellants that the women appellant being very closely related to the main accused i.e., Tasawar Hussain appellant they would not have joined with him in abduction knowing fully well that the young girl would he subjected to untold misery and hardship by Tasawar Hussain their kith and kin. It is also in the cross‑examination of Mst. Ghulam Akhtar (P. W. 5) that Mst. Kaniz Fatima and Mst. Zainab appellants had ceased to visit their house, because they had developed strained relations with them. This had occurred, according to the abductee and this witness, a few months before the occurrence. In these circumstances, it is unlikely that the abductee would go with these women appellants on their asking her to go to their house for taking tea. In this view of the matter, it can be considered that they might have been involved in this case by the father of the abductee in order to wreak vengeance on the women folk of Tasawar Hussain in so far as his honour was concerned. This is one side of the picture. There is the other aspect and that is that stopping of the visits, of these two women appellants to the house of the father of the abductee, might have been due to the reason that they were trying to seduce the abductee for the benefit of Tasawar Hussain. Her parents having become suspicious, stopped these ladies from visiting their house and this might have further strained the relations between the women folk. It is very significant to note that the cross‑examiner did not further pursue this subject by asking the question as to why the relations were strained and why those ladies were stopped from visiting the house of the abductee. It is also necessary to note that in the villages it is not uncommon that the liaison on behalf of the man is attempted to be established through women folk. In this case Tasawar Hussain appellant appears to be of lower caste than that of the family of the abductee so far as the village community is concerned. But it appears that he, is a well‑to‑do man and was running a shop at Rawalpindi. Therefore, it is quite possible that his mother and sister‑in‑law might have tried to help him in securing the girl of the Rajputs of the village, hoping that after the abduction and marriage there could be reconciliation, for the reason that Tasawar Hussain was economically well off. And if this scheme had materialised, their prestige in the village community would have certainly been enhanced by a connection with Rajput family of the village. Whatever the case may be, these last‑mentioned considerations cannot be considered to have been proved by legal evidence. They create very strong suspicion against the two women appellants. But as I have mentioned above, there are many circumstances which create a reasonable doubt that they may not have participated in the crime. Therefore, giving them the benefit of doubt, I find them not guilty and acquit them. They are on bail. Their bail bonds shall stand cancelled.

20. Coming to the matter of sentence in this case, the learned counsel for the appellants did raise this question; but did not advance any argument for the reduction in the sentence imposed by the learned Magistrate. In the circumstances of the case, I find that there is no ground for the reduction of the sentence or altering its nature. The appeal of Tasawar Hussain and Hubdar appellants is, therefore, dismissed and their conviction and sentences are maintained.