P L D 1959 (W (PLP)

4. During the investigation, a piece of cloth Exh. P. 7 and shalwar Exh. P. 8 were taken into possession from the kothri of Nawab accused vide memo. Exh. P. J. Chadar Exh. P. 9 and pajama Exh. P. 10 were taken into possession from the dera of Ali Muhammad and Abdul Hamid accused vide memo. Exh. P. K. These clothes were also made into sealed parcels. Ali Muhammad, Nawab and Abdul Hamid accused were also arrested. The Police, however, could not find any trace of Mst. Rahiman Bibi.

5. On 17th December 1956, one Muhammad Akbar of Hasilpur produced Mst. Rahiman Bibi before Sub‑Inspector Ch. Chiragh Din (P. W. 24). He accordingly informed Ch. Sikandar Hayat, D. S. P. of Bahawalpur about it who gave a ring to the Lahore Police, and on the 18th of December 1956, Sayyed Wilayat Ali Shah, Assistant Sub‑Inspector was ordered by D. S. P. City Lahore to go to Bahawalpur to bring Mst. Rahiman Bibi to Lahore. Abdul Ghafur P. W. accompanied him. He then went to the house of Sikandar Hayat D. S. P. Bahawalpur and found Mst. Rahiman Bibi there. She was identified by Abdul Ghafur P. W. as his wife and she was then brought back to Lahore. On the evening of the 18th of December 1956, this A. S. I. had taken into possession the shalwar Exh. P. 11 and dopatta Exh. P. 12 of Mst. Rahiman Bibi vide re covery memo. Exh. P. L. On the 19th of December 1956, Sh. Aftab Ahmad, Magistrate, (P. W. 15), recorded the confession Exh. P. M. of Muhammad Sharif, Exh. P. O. of Nazir alias Jeera and Exh. P. N. of Ashiq Hussain. Abdul Hamid accused was produced before Ch. Muhammad Shaukat Tarar Magistrate (P. W. 16) who recorded his statement Exh. P. R. All these accused were then sent to the Judicial lock‑up and the con fessional statements were forwarded to the Ilaqa Magistrate.

6. On the 20th of December 1956, Dr. Aziz, Medical Superintendent, Mental Hospital (P. W. 20), admitted Mst. Rahiman Bibi, wife of Abdul Ghafur, into the Mental Hospital, and he declared her to be insane.

7. In support of the prosecution case, 25 witnesses were examined at the trial. The accused denied the commission of the offences and pleaded that they had been falsely implicated in the case. Muhammad Sharif, Ashiq Hussain and Nazira accused, however, admitted the recovery of the clothes mentioned above from their persons. They produced ten witnesses in their defence. Miraj Din (D. W. 1), Taj Din (D. W. 2) and Muhammad Said (D. W. 3) stated that Nazir accused was with them at the time of the occurrence and Haider Ali Shah (D. W. 4) stated that Nazir accused bore a good moral character. Muhammad Rafiq (D. W. 5) and Hafiz Nur Muhammad (D. W. 6) stated that Ashiq Hussain accused was with them at the time of the occur rence, and Din Muhammad (D. W. 7) and Shahab Din (D. W. 8) stated that Muhammad Sharif accused was with them at the time of the occurrence. Mahboob Ali (D. W. 9) stated that Nawab accused was with him at the time of the occurrence, and Naseer Ahmad (D. W. 10) stated that he did not see any woman at the dera of Nawab accused.

8. After carefully reviewing the evidence on the record, the learned Magistrate rejected the defence version and accepting the prosecution case as true convicted and sentenced the accused as stated above.

9. Learned counsel for Muhammad Sharif, Ashiq Hussain and Nazir appellants contended that there was no reliable evidence to show that these accused had abducted Mst. Rahiman Bibi or that they had committed rape on her. They also maintained that the confessions of these accused were obtained under pressure by the police, and that, in fact, these statements were not confessions at all, and in any case they had no evidentiary value. They further maintained that there was no proof that Mst. Rahiman Bibi was insane at the time of the occurrence and even if she was insane there is nothing to show that these accused knew that she was insane when she accompanied them to the dera of Nawab.

10. Before considering the question whether she was actually abducted by these three accused, it is necessary to determine whether Mst. Rahiman Bibi was, in fact, insane at the time of the occurrence. Abdul Ghafur (P. W. 1), husband of Mst. Rahiman Bibi, stated that she was suffering from hysteria and he had brought her to Lahore for treatment. It is unfortunate that further details were not brought out on the record in the statement of this witness to show the mental condition of Mst. Rahiman Bibi. The fact, however, remains that all of a sudden Mst. Rahiman Bibi disappeared from the house of the Hakim where she was putting up along with her husband and she left behind, her burqa and chappals. Soon thereafter, she was seen by Manzur Hussain (P. W. 5) Taj Muhammad Khan (P. W. 6) and Abdur Rashid (P. W. 7) on the back side of the cattle‑pond of Akbari Gate. They also saw a number of boys following her and teasing her. She was then taken away by these accused in a tonga, and thereafter she disappeared altogether from Lahore, and about ten days later Muhammad Akbar produced her before Ch. Chiragh Din at Police Station Hasilpur, and when she was brought back to Lahore she was admitted into the Mental Hospital on the 20th of December 1956, and was declared insane by Dr. Aziz (P. W. 20). All these circumstances clearly go to indicate that she was insane at the time of the occurrence.

11. The next question which requires determination is whether these three accused, namely, Muhammad Sharif, Ashiq, Hussain and Nazir had abducted her on the 7th of December' 1956, with the intention of seducing her to illicit intercourse. On this point, we have got only the testimony of Manzur Hussain (P. W. 5). Although Taj Muhammad Khan (P. W. 6) and Abdur Rashid (P. W. 7) were also expected to support the prosecution case on this point, but they have not stated anything in this regard. Manzur Hussain P. W. has, however, stated that he was selling sugarcane on the back side of the cattle‑pond of Akbari rate on the 7th of December 1956, when he saw Mst. Rahiman Bibi in the evening coming from the direction of a Matti, and a number of boys were following her and the woman then sat at a distance of six to seven yards from him and a large crowd gathered there. Muhammad Sharif accused then appeared on the scene and told the people as to why they were teasing that woman and he then shouted to a tonga‑wala and inquired from the woman as to where she was to go to which she did not make any reply. Muhammad Sharif accused then told her that he would take her to the place where she wanted to go. The woman again did not make any reply. Muhammad Sharif accused then caught hold of her arm and made her sit in a tonga. Ashiq Hussain and Jeera accused also sat in the tonga and these three accused their took away the woman in the tonga towards the stand of Crown Bus Service. He identified the woman from the photograph Exh. P. B, which is of Mst. Rahiman Bibi. On the same night this witness made the statement before the police. The learned counsel for the appellants have criticised the evidence of this witness on the ground that he is a man of no status and as he used to sell sugarcane without a licence, therefore, he was amenable to the police influence. They also invited my attention to his statement Exh. D. D. made before the police in which the castes and addresses of the accused have also been given, but the witness denied having given the castes and addresses of the accused while making his statement before the police. I have very carefully gone through the evidence of this witness, and although he is a poor man, I have not been able to discover any reason to reject his testimony. The mere fact that he used to sell sugarcane without obtaining the necessary licence is no ground to hold that he was amenable to the police influence. The witness was examined on the very night of the 7th of December 1956, and nothing has been elicited in his cross‑examination to shake his credit. The Sub‑Inspector was not questioned whether the witness had given the castes and addresses of the accused while making his statement before the police. It may be that the castes and addresses of these accused were known to the police and when the witness named these accused the Sub‑Inspector himself added the castes and addresses. However, I do not find any material on the record to show that the witness did not know these accused. The police could not have learnt the names of these accused if Manzur Hussain, Taj Muhammad Khan and Abdur Rashid had not conveyed the information to Nazeer Hussain and Shabbir Hussain P. Ws. while they were searching for Mst. Rahiman Bibi. There is no indication on this record that the police was, in any way, inimical to these accused. It is true that Taj Muhammad Khan and Abdur Rashid P. Ws. have not supported Manzur Hussain as regards the part played by these accused in taking away Mst. Rahiman Bibi, but the circum stances clearly go to indicate that these witnesses had been won over. They do concede that the woman was there and that the boys were teasing her but thereafter they disclaimed all knowledge as to how she disappeared. Their explanation was that they became busy with their own work. It may or may not be true but I have already observed that I find no reason to doubt the testimony of Manzur Hussain P. W. I accordingly hold that these three accused had taken away Mst. Rahiman Bibi in a tonga from Akbari Gate on the evening of the 7th of December 1956. From the evidence of Inayat Ullah Khan (P. W. 8), it is clear that from Akbari Gate she was brought to Patiala Ground. It appears that the dera of Nawab accused is situate in Patiala Ground. Inayat Ullah Khan has stated that on the evening in question a tonga arrived in the Patiala Ground from which Mst. Rahiman Bibi got down as well as Muhammad Sharif and Jeera accused. When he was asked to identify the accused he correctly picked out Sharif accused but wrongly picked out Ashiq Hussain accused instead of Jeera accused. He could not identify Jeera accused as he did not know him before. He identified the woman from the photograph Exh. P. B. It is true that this witness has not named all the three accused but it may be that one of the accused had got down from the tonga a little earlier. His evidence is important only on the point that Mst. Rahiman Bibi had been taken to the Patiala Ground on the evening in question.

12. As to what happened at the dera of Nawab there is no direct evidence on the record. Mst. Rahiman Bibi being insane was not examined as a witness at the trial. However, the evidence led by the prosecution on that aspect of the case consists of the statements of the three accused which were recorded by Sh. Aftab Ahmad, Magistrate (P. W. 15) on the 19th of December 1956. At the time of the hearing of the appeals these statements were found missing from the judicial file. It, however, appears that the statements were certainly on the judicial file when it was received in the High Court, as copies were prepared from these statements in the office of the Advocate‑General. These copies were produced before me by Mr. Gulzar Hasan, Advocate, who represented the State on behalf of the Advocate‑General. The practice in the High Court is that after the file is received in the High Court, the clerk concerned of the Advocate‑General's Office takes it away and the relevant copies are prepared in that office and then the file is returned to the High Court. It appears that these statements were somehow lost either in the Advocate‑General's Office or in the High Court. As they were not traceable I had to reconstruct the record of these statements, by examining Qalb‑i‑Abid and Faiz Ahmad of the Advocate‑General's Office. Qalb‑i‑Abid (C. W. 2) was a Section Writer in the Advocate‑General's Office and he prepared the copies Exhs. P. M./1 and P. N./1 of the statements of Muhammad Sharif and Ashiq Hussain accused respectively. He did not add or omit anything while copying out these statements. Mr. Faiz Ahmad (C. W. 3) was also a Section Writer in the Advocate‑General's Office and he correctly prepared the copy Exh. P. O./1 of the statement of Nazir accused. These copies have now been placed on the file. In the course of their argu ments, learned counsel for the appellants read out from their own copies of the statements of these accused and they tallied with the copies Exhs. P. M/1 and P. O/1. I am, therefore, satisfied that these were the statements made by the three accused before Sh. Aftab Ahmad Magistrate.

13. I have very carefully gone through these statements and it is perfectly clear to me that these are not confessional statements. In his statement, of which the copy is Exh. P. M/1, Muhammad Sharif accused stated, inter alia, as follows :‑ "At about 4 p.m., I went to the garden near Akbari Gate in order to get myself shaved. I saw Jeera and Ashiq, and some children and a woman standing there. The woman did not speak but was smiling. In the meantime, a tonga arrived and Ashiq accused enquired from the woman, as to where she would like to go and she told him that she wanted to go to her house. The woman then sat on the back seat of the tonga and Ashiq accused also sat with her, and I sat in the front seat of the tonga. Ashiq called out to Jeera who also sat with him in the tonga, and we took the tonga to the Patiala House and seated the woman in the dera of Nawab. Jeera and Ashiq accused sat outside the dera and I went inside and enquired from her as to what was her name but she merely smiled. The woman then undid the cord of her shalwar and placed her legs upon me. I then had sexual intercourse with her and there after Ashiq and Jeera accused had sexual intercourse with her. After that, the woman and all of us took tea and then I left". To the same effect are the statements of Ashiq Hussain and Nazir accused of which the copies are Exhs. P. N/1 and P. O/1. The word "confession" is not defined in the Evidence Act, but in Narayana Swami v. Emperor (A I R 1939 P C 47) their Lordships of the Privy Council, while construing the meaning of the word "confession", observed as follows :‑ "That in their Lordships' view no statement that contains self‑exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of "confession" in Art. 22 of Stephen's `Digest of the Law of Evidence' which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872, and in that act it would not be con sistent with the natural use of language to construe confession as a statement by an accused `suggesting the inference that he committed' the crime". In the light of the above observations of their Lordships I have carefully gone through the statements of Muhammad Sharif, Ashiq Hussain and Nazir Ahmad accused, and I am of the opinion that none of these statements amounts to a confession. The accused did not admit having committed any offence, nor did they admit any facts constituting the offence, The learned Magistrate also held that these statements did not amount to confessions but in the latter portion of his judgment he confused the issue and treated these statements as confessions and actually used them as against the co‑accused presumably under section 30 of the Evidence Act. These statements are mere admissions of certain facts within the meaning of section 17 of the Evidence Act and could be proved only against the makers of the statements under section 21 of the Evidence Act learned counsel for the appellants vehemently argued that these statements were obtained by the police under coercion. It is true that these accused were arrested on the 7th of December 1956, and had remained in the police custody till the 19th of December 1956, when they were produced before S. Aftab Ahmad Magistrate. But if the police had put pressure on the accused to confess, they would have made statements admitting in terms the offence, or at any rate, substantially all the facts which constituted the offence. But a perusal of their statements clearly shows that the accuse were taking up the position that the woman was a consenting party' and that they had sexual intercourse with her with her consent. These are merely acknowledgements of subordinate facts not directly involving guilt and, therefore, fall short of being confessions, and do not come within the rule of exclusion laid down in` section 24 of the Evidence Act. The very nature of the statement indicates that these statements were not made under any induce ment, threat or pressure, but were voluntarily made by the accused of their own free‑will in order to exculpate themselves. The Magistrate had complied with all the formalities required by law before recording these statements. The statements are, therefore, admissible under section 21 of the Evidence Act against the makers of the statements. I am fortified in this view by a decision of the Privy Council in Ghulam Hussain v. The King (P L D 1949 P C 326 : 771 A 65.) where it was held by their Lordships that a statement of an) accused recorded under section 164 of the Code of Criminal` Procedure not amounting to a confession could be used against r the maker as an admission within the purview of sections 18 to 21of the Evidence Act.

14. These three accused had also identified Mst. Rahiman Bibi before the Magistrate as the woman in respect of whom they had made their statements. The admission of each of these accused that he had had sexual intercourse with the woman is fully borne out by the reports of the Chemical Examiner Exhs. P. X, P. Y. and P. Z., which show that the slides which had been prepared by the doctor from the urethral discharge of these accused were found to be stained with semen and vaginal epithelium. Even the clothes of these accused which were removed from their persons by the police, were found to be stained with semen. It is true that Lady Doctor Mrs. Ijaz (P. W. 2) who had examined Mst. Rahiman Bibi on the 19th of December 1956, could not say if she had been subjected to sexual intercourse recently, but in view of the circumstances enumerated above, I am satisfied that after taking Mst. Rahiman Bibi to the dera of Nawab from Akbari Gate, the three accused had sexual intercourse with her.

15. It was contended on behalf of these appellants that they had sexual intercourse with Mst. Rahiman Bibi with her consent and as such were not liable for any offence. I have already held that Mst. Rahiman Bibi was insane at the time of the occurrence. In my opinion the consent of an insane woman is no consent in the eye of law, and a person who subjects such a woman to sexual intercourse even though she apparently consents to it, cannot escape liability for an offence under section 376 of the Pakistan Penal Code. Section 90 of the Pakistan Penal Code provides as follows :‑ " A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or mis conception : or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent or unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." In view of the aforesaid provision of law, I am of the considered opinion that the consent must be free, real and intelligent. Consent and submission are not synonymous terms. Every consent involves a submission, but it by no means follows that a mere submission involves consent. Mere submission by on who does not know the nature of the act done, cannot be consent. This section will only protect a man from the charge of rape if he obtains the intelligent consent of the woman concerned. A person who indulges in having sexual intercourse with a sleeping woman, or with a woman under intoxication or of an unsound mind commits rape and is as much guilty of an offence under section 376, P. P. C., as a person who has sexual intercourse with a woman against her will. It is, therefore, clear that even if Mst. Rahiman Bibi had submitted to sexual intercourse she did not know the nature of the act done because of unsoundness of her mind and she was therefore incapable of giving her consent from defect of understanding.

16. Learned counsel for the appellants further contended that, at any rate, the accused did not know that Mst. Rahiman Bibi was insane or that she was not a consenting party to the sexual intercourse. Manzur Hussain (P. W. 5), Taj Muhammad Khan (P. W. 6) and Abdur Rashid (P. W. 7) have definitely stated that Mst. Rahiman Bibi at the time of the occurrence was being teased by the boys and a crowd had collected there. Manzur Hussain P. W. has further stated that Muhammad Sharif accused when he had appeared at the scene had told the people as to why they were teasing that woman, and Taj Muhammad Khan (P. W. 6) has clearly stated that a large crowd had gathered there and they were saying that the woman was insane. The statements of the accused themselves which they made therefore Sh. Aftab Ahmad, Magistrate clearly go to show that the behaviour of the woman was such that any reasonable man would have arrived at the conclusion that the woman was insane. The manner in which she submitted to sexual intercourse to all and sundry also indicates that she was behaving like an insane woman. I have therefore no doubt in my mind, that at the time when these accused took away Mst. Rahiman Bibi in a tonga from Akbari Gate to the dera of Nawab, and had sexual intercourse with her, they knew perfectly well, that the woman was insane. The accused are, therefore, clearly liable both under sections 366 and 376, P. P. C. The defence evidence as regards the alibi of the accused has rightly been rejected by the learned Magistrate. It consists of oral testimony and although Miraj Din (D. W. 1) and Taj Din (D. W. 2) stated that Nazir accused had corrected their accounts on the evening in question, the account books were not produced before the Magistrate. Such evidence can be easily procured and no reliance can be placed on it.

17. I am, therefore, satisfied that these three accused, viz., Muhammad Sharif, Ashiq Hussain and Nazir alias Jeera, were rightly convicted under sections 366 and 376 of the Pakistan Penal Code. As regards sentence, it appears from the evidence of Manzur Hussain P. W. that Muhammad Sharif accused is the principal offender. He is aged 30 years. Nazir is aged only 20 and Ashiq Hussain is aged 22 years. Nazir accused claimed that he was a student, and Muhammad Said (D. W. 3) has corroborated his statement on this point. In all probability, these two accused had joined Muhammad Sharif at his instance. I think that in the circumstances of the case, some reduction is called for in the case of Ashiq Hussain and Nazir accused. The sentences awarded to Muhammad Sharif accused are‑ not severe and I accordingly dismiss his appeal. The sentences of Ashiq Hussain and Nazir accused are reduced to two years' rigorous imprison ment each under section 366 P. P. C., and to four years' rigorous imprisonment each under section 376, P. P. C. These sentences shall run concurrently.

18. Now, I shall take up the appeal of Nawab accused. This appellant was charged only under section 376, P. P. C., but has been convicted under section 366 P. P. C. I have read his statement recorded under section 342 of the Code of Criminal Procedure. No question was put to him whether he had abducted Mst. Rahiman Bibi with the intention of seducing or forcing her to illicit intercourse and in fact there is no reliable evidence on the record in support of this allegation. The only evidence on this point is that of Nazir Ahmad (P. W. 12). He stated that he had seen Nawab accused taking away Mst. Rahiman Bibi from his own dera to the dera of Hameeda accused. He was examined by the police ten days after the occurrence. He was in police service before starting his business as a shopkeeper. He was confronted with his police statement Exh. D. G., where it was not mentioned that he had seen Nawab accused taking away Mst. Rahiman Bibi from his own dera to that of Hameeda accused. This evidence is, therefore, of no evidentiary value. The other evidence consists of the statements of Muhammad Sharif, Ashiq Hussain and Nazira accused who stated in their statements made before Sh. Aftab Ahmad Magistrate that Nawab accused had admitted before them that he had sexual intercourse with Mst. Rahiman Bibi. These statements being not confessions cannot be used under section 30 of the Evidence Act against Nawab accused. There is, therefore, no evidence against Nawab accused that he had either taken part in the abduction of Mst. Rahiman Bibi or had committed rape upon her. I accord ingly set aside his conviction and sentence and acquit him. He is already on bail and is discharged from his bail bound.

19. Ali Muhammad alias Kaka accused has not filed any appeal against his conviction and sentence, but after going through the entire evidence on the record, I am convinced that no offence has been made out against this accused. He has been convicted under section 376 of the Pakistan Penal Code and has been sentenced to seven years' rigorous imprisonment. The evidence on which reliance has been placed by the learned Magistrate consists of the testimony of Abdur Rauf (P. W. 10) and Muhammad Afzal (P. W. 14). These witnesses stated that they had gone to the jhugi of Abdul Hamid accused and on entering the jhugi they had seen Ali Muhammad alias Kaka accused lying naked with Mst. Rahiman Bibi who was also naked. They were confronted with their police statements in which they had not mentioned that they had seen them lying naked. These two witnesses were examined by the police ten days after the occurrence. In my opinion, this evidence is unreliable, and in any case does not warrant the conviction of the accused under section 376, P. P. C. The other evidence on which reliance has been placed by the learned Magistrate consists of the so‑called confessions of Muhammad Sharif, Ashiq Hussain and Nazir Ahmad co‑accused. But it appears that the learned Magistrate completely forget his own finding that these were not confessions. It is only a confession of an accused which can be taken into consideration against his co‑accused under section 30 of the Evidence Act. An admission short of confession can be proved only against its maker. There is no provision of law under which such a statement can be used against a co‑accused. These statements) were, therefore, irrelevant and inadmissible against Ali Muhammad accused and should not have been taken into con sideration at all. There is no other evidence to connect this accused with the offence. No incriminating articles were recovered from his possession. 1, therefore, set aside his convic tion and sentence and acquit him in the exercise of the revisional jurisdiction of this Court under section 439 of the Code of Criminal Procedure. I regret that this accused had to, remain in jail for more than a year before he could be cleared of the charge. I direct that he shall be set at liberty forthwith. K. B. A. Order accordingly.