1985 PLP 758 (MLD)

Miss Angella Mark for Appellant. Zafar Iqbal for the State. Date of hearing: 9th April, 1984. Shahid appellant was convicted by Mr. Murtaza Beg Barlas, Magistrate Section 30, Gujrat, by his judgment, dated 31-7-1969, under sections 366 and 376, P.P.C. and sentenced to five years R.I. and a fine of Rs.1,000 or in default six months R.I. on each count. However, the sentences under both offences were ordered to run concurrently. He has come up in appeal.

2. In brief, the facts are that Muhammad Sharif P.W.3 alongwith his wife went for washing of clothes at Dhobi Ghat, on 25-10-1968. They were washing clothes when their daughter Mst. Razia at about 10-00/11-00 a.m. informed them that Mst. Nasim Akhtar P.W., their daughter, was called by Shahid alias Babu accused in the street. She went out and has not returned till then. At this, Muhammad Sharif came to his house and started searching his daughter Mst. Nasim Akhtar aged about fifteen years. Shahid accused was also not found in his house. During the search, Wall Muhammad P.W.6 and Muhammad Yousaf P.W.5 informed Muhammad Sharif complainant that on that day, at about 8-00 a.m. near the mosque Khajoorwali they had seen Shahid accused taking away Mat. Nasim Akhtar towards old Jail. He, therefore, contacted Nanney Khan, the father of the accused who promised that she will be restored shortly to him. Muhammad Sharif came to know that Mst. Nasim Akhtar has been taken by Shahid accused to Okara. He sent Shahab Din etc. to Okara but they came back without any success. It is stated by him that he alongwith Rehmat Ali and the Police went to Lahore in search of Mat. Nasim Akhtar. They did not succeed and, therefore, returned to Gujrat. When they got down at the Octroi Post, he saw Mat. Nasim Akhtar sitting in a bus. He raised alarm whereafter the police arrested the accused with Mat. Nasim Akhtar who was challaned and convicted as stated above.

3. Mat. Nasim Akhtar P.W.1 supported the prosecution case in toto. She stated that Shahid accused called her from her house and told her that her mother had summoned her to Dhobi Ghat. She accompanied Shahid but on the way the accused enticed her by threatening her to keep quiet otherwise he would kill her. The accused took her to the nearby road and boarded a bus coming from Gujrat and proceeding towards Lahore. He kept her in Lahore in a hotel for 5/6 days and committed intercourse with her against her wishes. The accused then asked her to accompany him to Rawalpindi so that they can have sight seen there. She alongwith the accused boarded a bus from Lahore for going to Rawalpindi. When they were at the Octroi Post in Gujrat, her father and uncle were present there with the police. They recognised her and was recovered from Shahid accused who was arrested by the police. Rehmat Ali P.W.2 supported the prosecution case and stated that Mst. Nasim Akhtar was recovered from the custody of accused in his presence at the Octroi Post. Muhammad Sharif lodged the F.I.R. Exh.P.A. of the occurrence. Dr.Jamila Akhtar Sharif P.W.4 had medically examined Mst. Nasim Akhtar. In tier opinion, Mat, Naelm Akhtar wad aged about fifteen years and had been subjected to rape. She took swabs from her vagina and 'sent them to the Chemical Examiner who vide his report Exh.P.B/1, gave the, opinion that the swabs were stained with semen. The report of medico-legal examination of Mst. Nasim Akhtar is Exh.P.B. Mohammad Yousaf P.W. 5 and Wali Muhammad P.W.6 are Wajtakkar witnesses and had seen Shahid accused taking away Mst. Nasim Akhtar on the day of occurrence. Mst. Razia P.W.7 stated that Mst. Nasim Akhtar, her sister, was called by Shahid accused from the house and as she did not return to the house, she reported the matter to her father Muhammad Sharif. Mst. Mumtaz Jahan Headmistress P.W.8 produced the school record to prove the date of birth of Mst. Nasim Akhtar P.W. as 8-8-1953. The occurrence took place on 25-10-1968 which means that at the time of occurrence. Mst. Nasim Akhtar was about fifteen years, two months and seventeen days. Raja Sher Muhammad P.W.9 and Aftab Hussain S.I., P.W.10 investigated the case.

4. The accused when examined denied the charge and produced Nanney Khan D.W.1, his father in his defence who deposed that Shahid had love affairs with Mst. Nasim Akhtar. On that account he requested Mohammad Sharif for the hand of Mst. Nasim Akhtar for his son but was refused. He further stated that Shahid did not entice Mst. Nasim Akhtar and the case has been fabricated.

5. I have gone through the entire evidence with the assistance of learned counsel for the appellant and the State. It is stated by the learned counsel for the appellant that it has not been proved by the prosecution that Mat. Nasim Akhtar was below the age of sixteen years at the time of occurrence; that the provisions of section 376, P.P.C. were 'not attracted in the present case; and finally that only a technical offence is made out against the accused for which the imprisonment already suffered by him be considered sufficient specially when the appeal is coming up for hearing after about fifteen years of the conviction. .

6. I have considered these arguments. The important point in this case is the age of the abductee Mst. Nasim Akhtar P.W.1. She was examined by Dr. Jamila Akhtar Sharif P.W.4, who found her to be aged fifteen years. In her statement, she gave the reasons for thin opinion that the weight of Mst. Nasim Akhtar was 85 pounds; that the growth of hair under the armpit and pubics was average and that she had 28 teeth in her mouth. Considering her general condition as well, she opined her age to be fifteen years. I am satisfied that the conclusion that Mst. Nasim Akhtar was aged fifteen years was correct. Regarding rape, it was found that the hymen was torn and the tears were old and vagina admitted two fingers easily. The abductee Mst. Nasim Akhtar was recovered from the custody of Shahid accused. She remained in her company for some .days and the swabs taken from her vagina indicated that those were stained with semen. Thus, it is also clear that Mst. Nasim Akhtar was raped by Shahid accused and she was aged only fifteen years. Her age is also proved by the school record produced by Mst.Mumtaz Jahan Headmistress P.W.8. Even if she was consenting party, then also being minor, her consent was of no avail for the defence of the accused. The Wajtakkar witnesses are totally independent. They have no enmity with the accused. Similarly, Muhammad Sharif and Rehmat Ali P.Ws. have no enmity with the accused. The evidence of Nanney Khan D.W. also indicates that the accused had some kind of liaison with Mst. Nasim Akhtar and it was for this reason that her took he away from the custody of her lawful guardian without their permission. The provisions of sections 366 and 376, P.P.C. are clearly attracted to the facts and circumstances of the case. I am not prepared to accept the arguments that ix was a case of technical nature.

7. In view of the above discussion, the case against the accused appellant is fully established by the prosecution. His conviction .under sections 366 and 376, P.P.C. is maintained. The submission of the learned counsel for the appellant that the appeal is coming up for disposal after fifteen years and for that reason the sentence already suffered by him should be considered sufficient is not appealing in view of the facts and circumstances of this case. The accused enticed and raped a minor girl. As such, the sentences awarded to the accused on both counts are maintained. The sentences shall run concurrently as ordered by the trial Court. However, the appellant will be given the benefit of the provisions of section 382-B , Cr. P. C . at the time of computation of his sentence in prison.

8. The appellant is on bail and is present in Court today. His bail bonds are cancelled and he has been taken in custody. S. A. Appeal dismissed.