1989 PLP 4464 (MLD)

Date of hearing: 5th June, 1989. Javed Akhtar, petitioner, along with his wife Mst. Shamim Akhtar, his brother Muzaffar and his brother‑in-law Haji Muhammad, was tried under sections 376 and 366 of the P.P.C. by the learned Magistrate Ist Class, Gujranwala, and was by his judgment, dated 17‑7‑1980, convicted under section 366 of the P.P.C. and sentenced to three years' R.I., and a fine of Rs.1,000 or six months' R.I. in default. On appeal, the conviction and sentence were maintained by the learned Additional Sessions Judge, Gujranwala.

2. The learned Magistrate had acquitted the petitioner's co‑accused of all the charges.

3. The case against the petitioner and his co‑accused was registered on 26‑3‑1972 at 4 p.m. on the report of Ghulam Farid (PW.1), a brother of Mst. Parveen Akhtar. The latter was an unmarried girl; in the FIR, she was stated to be 15 years of age. The prosecution case was that Javed Akhtar and his wife Mst. Shamim Akhtar lived in the neighbourhood of the complainant and the two families were on visiting terms. On 25‑3‑1972 at about 7 p.m. Mst. Shamim Akhtar went to the house of the complainant and took away Mst. Parveen Akhtar on some pretext. When Mst. Parveen Akhtar did not return, the complainant went out in search of her. He was told by Muhammad Rafiq P.W. that he had seen Mst. Parveen Akhtar going in the company of the petitioner and his wife towards the tonga-stand.

4. The accused persons Javed Akhtar and Muzaffar were arrested on 30‑3‑1972 when they were taking Mst. Parveen Akhtar to village Kakka Matal, District Sialkot. Mst. Parveen Akhtar was produced before a Magistrate on 31‑3‑1972 when she gave her consent to be medically examined. She was medically examined by Lady Dr. Zarina Iqbal at 4 p.m. the same day. The lady doctor found the breasts, auxiliary and pubic hair of Mst. Parveen Akhtar fully developed; there were no marks of violence on any private part of her body; her hymen was thick elastic with old healed tear. The hymen admitted two fingers easily. Vaginal swabs were sent for chemical examination and were found to be stained with semen. Dr. Muhammad Rashid Chaudhry examined Mst. Parveen Akhtar for her age and found, on the basin of ossification of bones, that she was about 16 or 17 years of age.

5. The prosecution case, as deposed to at the trial by Mst. Parveen Akhtar on 25‑3‑1978 was as follows. She was present in her house in the evening when Mst. Shamim Akhtar accused asked her to accompany her to her house. She went with her to Mst. Shamim Akhtar's house, where her husband Javed Akhtar was present. The latter told her that his sister's mangni was taping place and that she should go with them. She told them that she should obtain the permission of her parents but Mst. Shamim Akhtar said that that was not necessary because they would return in an hour's time. On the way, Muhammad Siddiq and Khan Muhammad P.Ws met them; on their inquiry, Javed Akhtar, petitioner, told them that they would return soon. They were standing at the road for a bus. 1n the meantime, Javed's brother‑in‑law Haji Muhammad also came, they took her to Butranwali. There they alighted from the bus and when she asked to go to the mangniwala house, Javed Akhtar, petitioner, said that that was a pretext and in fact they had brought her with them for her marriage with his brother Muzaffar. She started crying and the petitioner threatened her saying that if she cried, he would kill her. In the meantime, another bus came and Mst. Shamim Akhtar and the petitioner and his wife took her to Fatehwali. There they confined her in a room at a well and Haji Muhammad accused threatened her that if she tried to escape, she would be thrown in the canal. Haji Muhammad accused kept watch over her. The next day, the petitioner came and she entreated him to take her to her parents. He again threatened her with death. The petitioner spent a night there with her and sexual intercourse with her against her will. The petitioner stayed there for three days and had been having sexual intercourse with her. On the 4th day, Muzaffar accused also came but he did not attempt to have sexual intercourse with her. They then took her to Sialkot Courts. From there, they took her to Karam Abad and it was there that the police arrested the accused persons and took her into custody.

6. The prosecution also examined Ghulam Farid (PW.1), Barkat Ali, father of Mst. Parveen Akhtar (PW.2), Mst. Aisha, mother of Mst. Parveen Akhtar (PW.5), Muhammad Din (PW.3), Manzoor Hussain (PWA) Muhammad Siddiq (PW.7) and Mushtaq Ahmad Khan S.I. (PW.8)

7. The petitioner and his co‑accused denied the charge. The petitioner examined three witnesses in his defence. They were Barkat Ali (DWA), Mazharul Haq (DW.2) and Nasir Ahmad (DW.3). Their testimony was not very helpful, for they did not depose anything concerning the incident of abduction and rape.

8. The learned trial Magistrate found that no offence under section 376 of the P.P.C. was proved to have been committed. In this connection he noticed that Mst. Parveen Akhtar was major aged about 16 or 17 and "in case the sexual intercourse was committed with her for the first time, she must have sustained injuries or marks of violence on her private parts and other parts of her body. The fact that her vagina admitted two fingers easily combined with the fact that she did not sustain any marks of violence on her private part of body as also the fact that this woman did not make any noise to attract attention of the public on the day when she was reportedly taken to the Katchery of Silakot and to different places by bus shows that she was a consenting partner in the sexual intercourse. which is not offence, in case of major woman like her. Yet the learned Magistrate thought that the petitioner had committed an offence under section 366 of the P.P.C. In reaching that conclusion, the learned Magistrate observed that the petitioner "was running the shop of a Dispenser in the neighbourhood of Mst. Parveen, who was at the prime of her youth he might have developed intimacy with her, as his present wife Mst. Shamim accused was older than him and as a result of that intimacy, he might have induced this young woman deceitfully to leave the house of her parents, in the dark hours of the night."

9. The learned Additional Sessions Judge thought that the learned trial Magistrate was wrong in his conclusion that Mst. Parveen Akhtar was a consenting party to the circumstances which took place from village Butranwali onwards". In his view, the learned Magistrate was also wrong in his finding that Mst. Parveen Akhtar was a consenting party to the rape committed on her, for mere non‑presence of any injury on the body of the abductee at the time of her examination does not give the presumption that she was a consenting party."

10. Now there is nothing on the record to doubt the opinion of Dr. Muhammad Rashid Chaudhry that Mst. Parveen Akhtar was aged about 16 to

17. As has been seen above, Lady Dr. Zarina Iqbal P.W. had found that the breasts, auxiliary and pubic of Mst. Parveen Akhtar were fully developed; that her hymen had old healed tear and that the vagina admitted two fingers easily. Mst. Parveen Akhtar had left her parents house on 25‑3‑1972 at 7 p.m. According to her, the, first sexual intercourse the petitioner had had with her was on the next day. She was recovered by the police on 30‑3‑1972. All these facts, in my view, do not fit in with what the Lady Doctor found, namely, an old tear on the hymen of Mst. Parveen Akhtar and her hymen admitted two fingers easily. These latter facts A strongly tend to show that Mst. Parveen Akhtar was used to sexual intercourse and that the sexual intercourse that the petitioner allegedly had with her on 26‑3‑1972 was not the first sexual intercourse that she had had. I am, therefore, of the view that the learned trial Magistrate rightly drew the inference from the circumstances of the case that Mst. Parveen Akhtar was a consenting party to the act of sexual intercourse with the petitioner. In my view, the inevitable result of this finding should have been that Mst. Parveen Akhtar had left with the petitioner of her own accord and that nobody had abducted her. The story that she gave was in many respects, highly improbable. As a young girl she would not have left with the petitioner and his wife without the permission of her parents and brother, particularly when the obtaining of the, permission would not have taken any time. It is then difficult to conceive that the petitioner's wife Mst. Shamim Akhtar would play the role attributed to her, Mst. Parveen Akhtar admitted that when they disembarked from the bus at Batranwali, the petitioner told him that she had been brought on a false pretext and that the real object was to marry her with his brother Muzaffar. Yet, she continued the journey with them; she boarded another bus and then, as has been seen above, she had been going from place to place in their company. One of the places she visited with them was Sialkot Katchery. I am, therefore, of the view that in the proved facts of the case, it cannot be said that Mst. Parveen Akhtar had been abducted by the petitioner or that an offence under section 366 of the P.P.C. was made out.

11. I would, therefore, accept the revision petition, set aside the conviction and sentence and acquit the petitioner. He shall stand discharged of his bail bonds. S.A/J‑53/L Petition accepted.