P L D 1963 (W (PLP)

5. The learned Additional Sessions Judge formulated the following four points for determination :‑ "(1) Whether Mst. Latifan was kidnapped ? (2) Whether Mst. Latifan was kidnapped with intention that she should be seduced to illicit intercourse ? (3) Whether she was raped upon ? (4) Whether the present accused kidnapped Mst. Latifan and accused Wahid Bux raped upon her ?" He first addressed himself to the first two questions and though he found that the girl was a willing party he came to the con clusion which in his own words are "All this evidence shows beyond doubt that Mst. Latifan was kidnapped with the intention that she will be seduced to illicit intercourse." He accepted the prosecution version with regard to the enticing away of the girl by all the three accused persons. Then he proceeded to deal with points 3 and 4 and started by saying that the most important point in this case was the age of the girl Mst. Latifan. He is quite right in this. In fact he should have really addressed himself to this question first before reaching his finding with regard to points 1 and

2. The learned Judge then observed :‑ "I have discussed the evidence of Mst. Latifan, her mother and step‑father. All of them depose that the girl is 13 to 14 years old." The learned Judge then referred to the evidence of the lady‑doctor in which she had stated that her age was about 14 years. He then considered the defence evidence in this case. This consisted of the testimony of Ali Nawaz Shah, D. W. 1, the Qazi appointed by the authorities to maintain the nikah register under the Family Laws Ordinance and Abdullah, D. W. 2, who was a witness of the nikah. What happened was that two months after the girl had been recovered she was married to another Allah Bux by her mother and step‑father and the defence evidence was that Muhammad Parial had stated the age of the girl to D. W. 1 who read the nikah as being 17 years. The learned Judge did not accept this evidence upon the ground that Muhammad.Parial had denied this and that this was a case of "word against word." Having found that the girl was under 16 years of age he reached the conclusion upon the evidence supported, as it was, by the report of the Chemical Examiner that Wahid Bux had committed rape upon Mst. Latifan. Upon the finding that the girl was under 16 Sears of age the further finding that the accused were guilty of an offence under section 363, P. P. C., was easy to reach that she had been taken or enticed out of the keeping of the lawful guardianship. He also applied section 366 which provides for a more severe punishment where the kidnapping is with the intent that the woman may be compelled to illicit intercourse. He, therefore, convicted all the accused of an offence under section 363 read with section 366, P. P. C. and imposed one sentence as stated earlier.

6. The most important question to be determined in this case as the learned Additional Sessions Judge himself said is the question of the age of Mst. Latifan. The learned Judge has observed that Mst. Latifan, her mother (Mst. Shahzadi) and her step‑father (Parial) have all stated that she is 13 to 14 years old. I have looked in vain in the depositions of these witnesses for such a statement. It is surprising that not a single question was asked from either Mst. Shahzadi of Mst. Ghulam Fatima or Muhammad Parial as to what was the age of the girl. The only statement which I find and which may have been relied upon by the learned Judge below is of Mst. Shahzadi, P. W. 2, in examina tion‑in‑chief which reads as follows :‑ "I enquired from Latifan at the time of incident. Latifan was not pubert. She had not menstruated. She had attained puberty 2 months after the incident." Mst. Latifan's age which is recorded in her description by the learned Judge is "about 15/16 years." May be that this was given by Mst. Latifan herself or was recorded by the Judge from his own impression. Then in cross‑examination she stated that she could not say what was her age when her mother married Muhammad Parial and that her mother had told her that her age was 12 to 13 years. The marriage between Muhammad Parial and Shahzadi had taken place 2 or 3 years before this incident. Further on when she was cross‑examined with regard to her statement that Mst. Mehnaz had induced her to marry Allah Bux she stated that she had told Mst. Mehnaz that she had not become pubert and hence would not marry. Mst. Ghulam Fatima, the grand‑mother has said nothing about this. Then w e come to the evidence of the lady‑doctor. I have reproduced her report, Exh. 6‑A, in which there is a bare statement supported without any reason that the age of Latifan was about 14 years. Even when she gave evidence she again merely stated what was con tained in the report that is the age of the girl was about 14 years. She gave no reason for this opinion. When she was questioned about it in cross‑examination she stated that she had given no reasons for her opinion of the age of the girl in the certificate as the police had not asked for it. That may be so but why did she not support her opinion with reasons when she gave evidence in Court. In cross‑examination she stated that there could only be a margin of only one year in the age of the girl. She admitted that she had used no instruments in the examination of the girl. It is nobody's case that the girl was X‑rayed for the purpose of ascertaining her age. In a case falling under section 376 or 366, P. P. C. the question of the age of the girl always becomes of the greatest importance, particularly when the evidence shows that she was a willing party to the act of sexual intercourse A or to leaving her home. It is difficult to base a conviction upon this kind of medical testimony which cannot be tested for want of any reason given in support of the opinion. It was so pointed out in a judgment of this Court Rafiq Ahmad v. The State (P L D 1961 Kar. 679). This is what the learned Judge said in respect of the medical evidence :‑ "On this point, the Medical Officer has stated that the boy was of 13 years of age. He has however given no reason whatsoever in support of his opinion. We have therefore no material on record to verify the version given by the Medical Officer." These observations apply with full force to the present case. Now if this medical evidence cannot be acted upon for the purposes of basing the conviction there is precious little upon which a finding can be safely given that at the time of the incident Latifan was below 16 years of age. Mst. Shahzadi has said that the girl attained puberty, that is she menstruated two months after the incident. This by itself cannot conclusively prove the age to be less than 15 years, but apart from that it is clear that this statement is not true. The lady doctor has stated that when the girl gave the history of her menstruation she said that she had got menses for the last two months. The girl was examined on 3rd of May that is about 6 months after the alleged kidnapping, and there she stated that she had been menstruating from two months. The mother on the other hand stated that the girl was not menstruating at the time of the incident and that she started doing it two months after the incident. This is contrary to the girl's own statement which she made before the doctor and I am of the opinion that neither of them can be accepted safely as true. The learned Judge has rejected the defence evidence with regard to the age given by Parial at the time of the nikah upon the sole ground that Parial had denied this when it was put to him in cross‑examination. Parial would deny it, but there seems to me to be no doubt that the age of the girl at the time of her nikah two months after the incident was given out as being 17 years. The D. W. 1 who admittedly performed the nikah is supported in his evidence by the extract of the register which is maintained under the Family Laws Ordinance and in which also the age of the girl is shown as 17 years. D. W. 2 who was a witness of the nikah also stated that Parial had said at the inquiry by the Qazi that the age of the girl was 17 years. It was argued by Mr. Khalid Ishaq, the learned Additional Advocate‑General, that this age of 17 years was given because if it had been said that the age was less than 17 years, the Qazi would not have performed the nikah. This may be so, and if there was other satisfactory evidence with regard to the age of the girl to the effect that she was below 16 years of age, that evidence would not necessarily have been displaced by the evidence contained in the Qazf's register. But as I have pointed out that kind of evidence is wanting. The explanation given by the A. A. G., is plausible, but in a criminal case when two explanations are equally possible in a given situation the one in favour of the accused should normally be accepted. For the reasons given above I have come to the conclusion that the prosecution failed to establish that Mst. Latifan was below 16 years of age.

7. The next question is whether the sexual intercourse, which Wahid Bux had with Mst. Latifan, was against her will or without her consent as required by clauses (i) and (fi) of section 375, P. P. C. The other clauses do not apply to the present case.

8. The learned Additional Sessions Judge has found that the girl was a willing party but he has added that she wanted to leave her house to be married to accused Allah Bux. For the latter finding we have merely the word of the girl. The story given out by her is that Mst. Mehnaz had induced her to marry Allah Bux and that is the reason which she gave after a great deal of resistance in the cross‑examination as to why she had accompanied Mst. Mehnaz out of her parents house, This story of inducement to marry Allah Bux does not bear scrutiny. The girl admitted that she used to go to the house of her grand mother Ghulam Fatima every day and on each of these occasions she met Mst. Mehnaz in the latter's house. She also admitted that she used to talk to Mst. Mehnaz secretly. Wahid Bux would be in the house of Mst. Mehnaz, his mother‑in‑law. There would thus be a meeting place between Wahid Bux and Mst. Latifan. If Mst. Latifan was willing to marry Allah Bux it is not easy to see why it was necessary for her to run away from her parents house. On her own showing Allah Bux was the driver of a big Zamindar and it is in evidence that her own deceased father had also been in the employment of the same Zamindar during his lifetime. If Allah Bux was anxious to marry Mst. Latifan normally one would expect that there would be a proposal from him to the girl's mother or the step‑father. There is nothing on record to show that Allah Bux made any such proposal or that any suggestion at any time had been made to the parents of the girl in this direction and had been turned down. But more important than all this is the conduct of the girl herself after she had left her parents' house. She travelled 15 miles on foot and when on her own showing she reached the house of Gadlo at Tajpur, Wahid Bux remained with her and Allah Bux and Mst. Mehnaz returned forthwith. She does say that she protested when she was being left with Wahid Bux but it is very difficult to accept the truth fulness of that statement. She admitted that she passed three nights with Wahid Bux at Gadlo's house and on each of these three nights Wahid Bux used to have sexual intercourse with her 3 or 4 times. She admits that during the day no one kept any guard on her. Then there is the very significant circumstance that she travelled with Wahid Bux alone all the way from Tajpur to village Kandri which is again about 15 to 16 miles. It is obvious that they were running away from apprehended pursuit, and if she had not been happy with Wahid Bux she would have offered some resistance. Nothing of the kind happened. It has to be remembered that this story of the promise of marriage with Allah Bux was put out in the first information report which was made on the 1st of May even before the girl had been secured. It is true that Muhammad Parial and Gul Muhammad had gone to village Kandri and according to them had met Latifan there but there is an important admission by Latifan herself that when these persons came to village Kandri they stood at a distance of about 15 paces from the house of Manik. Considering the situation in which she was, it is difficult to believe that she could have given a long narration to Muhammad Parial parti cularly from such distance. Further there is nothing in the evidence to show that Mst. Latifan made any attempt to accompany her step‑father and even if one accepts the story of Parial that Manik and Mitho did not permit him to take away the girl, one would have at least expected the girl herself to show some impatience with the situation in which, according to her, she had been placed as a result of deception played upon her. Muhammad Parial and Gul Muhammad returned back to Jacobabad the same day reaching there at night, but even then the report was not lodged until 12‑30 p.m., the following day. In fact there is no reason why the report was not made earlier, because according to the prosecution evidence it had been found out earlier that the girl had been abducted by the three accused persons. If we were to believe the story that Mst. Mehnaz had visited the house of Muhammad Parial and had given the intoxication drug to Mst. Shahzadi and the girl had disappeared and Muhammad Parial on being informed by his wife had gone to look for Mehnaz and had not found her, the matter should have been reported then. In fact I consider the story of the visit of Mehnaz to Mst. Shahzadi and the giving of the intoxicating drug to be entirely false. Therefore, it would appear that plenty of time was taken by Muhammad Parial to make the report which he eventually did on the 1st of May and there was thus sufficient occasion for deliberation and once this story of promise of marriage to Allah Bux as constituting the deception was put out in the F. I. R. the girl was bound to take that line when she came to give evidence. This however is not consistent with the actual conduct of the girl throughout this episode. The entire prosecution version rests upon the testimony of the girl herself. It has been the practice of the Courts in such cases not to accept c at face value the testimony of a prosecutrix in such cases, particularly when she appears to be a willing party. In the present case, Mst. Latifan made so many untrue statements which later on in cross‑examination she had to abandoned that it is difficult to place reliance upon her word alone. From all this it is reasonable to infer that the girl had, on the night in question of her own accord, left her mother's house and had willingly submitted to sexual intercourse to Wahid Bux and that there was no deception played upon her.

9. As I have found that it has not been established that the girl was below 16 years of age and as I have further reached the conclusion that she was a willing and consenting party to the sexual intercourse between herself and Wahid Bux and that she had left her parents' house of her own accord and without any deception the conviction of the appellants must be set aside.

10. Even apart from the age of the girl the accused might still have been found guilty under section 366, P. P. C. if it had been established that Mst. Latifan had been either compelled or induced by any deceitful means to leave her house for any of the purposes mentioned in that section, but I have said enough to show that this did not happen.

11. I, therefore, accept the appeal of all the three appellants and set aside their conviction and sentence and direct that they shall be set at liberty unless required in connection with some other case. K. B. A./A. H. Appeal accepted.