1982 P Cr (PLP)

Fateh Muhammad appellant was tried under sections 366 and 376, P. P. C. by Mr. Saadat Ali Chaudhry, Magistrate Section 30, Faisalabad who, by his judgment dated 11th May, 1980, convicted him on both the charges and sentenced him to rigorous imprisonment for five years on each count with the direction that both the sentences shall run concurrently. The convict has appealed.

2. The case of the prosecution is that on 7th March, 1977 the appel lant and his co-accused Abdul Samad took away Mst. Surayya, aged fifteen-and-a-half years, daughter of Din Muhammad from her house situate in Chak No. 252/GB. Prior to the occurrence, the appellant who was a resident of Lyallpur (now Faisalabad) used to run his clinic in the `baithak' of Din Muhammad complainant. On 2nd April, 1977 Din Muhammad reported the occurrence to Abdul Hamid, A.S.I., vide his statement Exh. P. W. 2/A, on the basis of which formal F. I. R. Exh. P. W. 6/A. was recorded at Police Station, Satiana on the same day.

3. The case was investigated by Abdul Hamid, A. S. I., who arrested the appellant on 10th April, 1977 and recovered Mst. Surayya from his custody. On 11th April, 1977 Mst. Surayya was produced before a Magistrate before whom she made a statement under section 164, Cr. P. C. alleging that the appellant and his co-accused Abdul Samad took her away from her house on the pretext of getting her ornaments and new clothes. She further alleged that the appellant committed rape with her. On the same day she was medically examined by lady doctor Nafees Akhtar, who appearing as P. W. 4 stated that hymen was torn and tear was at 6 o'clock position ; there was no contusion on the sides or redness on the walls of vagina. Two vaginal swabs were taken and sent to Chemical Examiner who reported that the same were stained with semen. On the same day Dr. Muhammad Ajmal Mian examined the appellant and found him fit to perform the sexual act.

4. The prosecution examined seven witnesses in support of its case and its main stay is the evidence of Mst. Surayya and Taj Muhammad P. Ws. It also relied on the report of the Chemical Examiner and the birth-certificate of Mst. Surayya.

5. The appellant pleaded not guilty to the charge, denied .the pro secution allegations and contended that he had been falsely implicated due to enmity. He examined three witnesses in his defence:

6. The learned trial Judge accepted the prosecution version and convicted and sentenced the appellant as mentioned above.

7. The learned counsel for the appellant contends that the prosecution evidence is not at all sufficient to warrant the conviction. He submits that Taj Muhammad P. W. is closely related to Mst. Surayya and is, therefore, an interested witness. He further submits that the evidence shows that Mst. Surayya was a consenting party -and in any case her uncorroborated statement which otherwise does not inspire any confidence, cannot form the basis for conviction.

8. I have gone through the record with the help of the learned counsel for the appellant. The prosecution produced birth-certificate (Exh. P. W. 2-B) which shows the date of birth of Mst. Surayya as 26th October, 1961. The occurrence took place on 7th March, 1977. This means that at the time of abduction her age was fifteen years, four months and some days. Appearing as P. W. 1 she stated that the appellant and his co-accused induced her to accompany them and took her to Lyallpur and then to Gojra where the appellant kept her for 25-26 days at the house of his uncle and had been committing rape with her. It is also in her statement that the aforesaid uncle of the appellant used to keep watch over her. In cross examination she admitted that the wife and children of the uncle of the appellant were also residing in the same house. It is very difficult to believe that the appellant would commit rape with her in the house of his uncle where the latter's wife and children were also residing. It is equally unbelievable that the uncle of the appellant would keep watch over the prosecutrix. The argument of the learned counsel that she was a consenting party to the sexual act, is also not without force. According to the prosecution's own showing, Mst. Surayya was above 14 and below 16 years at the time of abduction. She was taken from his house to Faisalabad to a bus and then to Gojra where she was kept for' 25-26 days but she did not apprise any body that she was being subjected to rape. I am, therefore, of the view that the prosecution has not been able to establish the charge under section 376, P. P. C. against the appellant and I acquit him of the said charge.

9. As far the charge of abduction, the statement of Mst. Surayya finds corroboration from the evidence of Taj Din who stated that he had seen the appellant and his co-accused taking her away. Mst. Surayya stated that she was in the company of the appellant when she was recovered by the Police. Din Muhammad (P. W. 2) and Abdul Hamid A. S. I., (P. W. 6) also made similar statements which were not seriously challenged by the defence. Learned counsel for the appellant was unable to urge any thing substantial against the charge of abduction. The conviction of then appellant under section 366, P. P. C. is, therefore, maintained.

10. The question of sentence on the charge of abduction, however, requires consideration. The appellant was arrested on 10th April, 1977 and the order-sheet shows that till 12th July, 1978 he was in custody. He was convicted on 1101 May, 1980 and is in Jail since then. In this way besides facing the agony of a prolonged trial for over three years and detention as under-trial prisoner for fifteen months, he has already under- e gone rigorous imprisonment for more than one and a half years. Keeping in view all the circumstances of the case, I feel that the sentence of impri sonment already undergone by the appellant is sufficient to meet the end of justice. Accordingly, I reduce his sentence to the term of imprisonment already undergone by him. He shall be set at liberty forthwith if not required to be detained in any other case. The appeal stands disposed of accordingly. Order accordingly.