1990 PLP 374 (MLD)

(2) Fourchette is torn completely; (3) The hymen is ruptured completely; (4) The vagina admits two fingers loosely. She was not found virgin at the time of examination. Ext. P.A. is the carbon copy of her medico‑legal report.

6. In support of their case the prosecution examined six witnesses, namely, Dr. Khalida Ehsan, P.W.1, Lal Khan P.W.2, Mutalli, P.W.3, Mst. Sakina Bibi P.W.4, ASI Sher Dil, P.W.5 and SI/SHO Muhammad Khalil, P.W.6.

7. After the conclusion of the prosecution evidence the appellants in their statements under section 342 Cr.P.C. denied the allegations levelled against them. They maintained that they had been falsely implicated due to enmity. Explaining as to why he had been involved in the present case Moonda appellant stated: "The real name of the abductee is Mst. Surawa alias Sheedan who at the time of the occurrence was major and was‑ aged 21 years. Mst. Sakina Bibi was her younger sister who had died during minority. I was engaged Mst. Surayya abut 10 years back. Her parents fleeced me during this period and later on refused to send her with me. Mst. Surayya, however, wanted to marry me. She on her own accord came to my house arid married me. Her parents were annoyed. They through the help of police got a false case registered against me and my co‑accused and after forcibly recovering the abductee they extracted a statement from her against me."

8. Relying on the prosecution evidence the learned trial Court convicted and sentenced the appellants as stated above. Feeling aggrieved the appellants have come up in appeal.

9. I have heard the parties' counsel and with their assistance have gone through the record.

10. Admittedly there is an inordinate delay of about five days in lodging the F.T.R. of which there is no plausible explanation on record. The complainant in his statement instead of explaining the delay has made a false assertion that he had reported the matter to the police on the following day of the occurrence. This inordinate delay is indicative of the fact that the F.I.R. was lodged after due deliberations and possibility cannot be ruled out that a false story had been concocted. The false assertion by the complainant indicates that he is capable of: telling blatant lies and thus is not a dependable and reliable witness.

11. According to the prosecution case Mutalli P.W.3 alongwith Umra (not produced) had seen the appellants taking away Mst. Sakina Bibi P.W. soon after the occurrence. Mutalli P.W. is the son‑in‑law of the complainant and the brother‑in‑law of the abductee. It is strange that at that odd time he saw the appellants taking away his unmarried sister‑in‑law and kept quiet. He neither checked them nor did he enquire from them as to where they were going. This conduct of the witness manifestly shows that he is narrating a false story. In his cross‑examination he stated that Mst. Sakina P.W. was married to the nephew of Umra (given up P.W.) and have given birth to a female child. The abductee in her statement as P.W.4 has categorically contradicted him by stating that she had neither been married to the nephew of Umra aforesaid nor did she give birth to any child. This material contradiction renders Mutalli P.W. as a highly unreliable I and irresponsible witness. His statement is not worthy of any credence.

12. Now we come to the statement of Mst. Sakina Bibi abductee which she made before the trial Court as P.W.4. She has stated that on the night of occurrence Mst. Sardaran appellant had taken her out of her house on the pretext of urinating. When they reached the outskirts of the village, Moonda, Umra, Ahmad, Mutalli, Salchoon and Muhammad appellants met them. They gagged her and took her to the house of Moonda. On their way they met Umra and Mutalli P.W. From there the appellants took her to Yar Moosa (place/village) and after two days to Gujranwala where she was kept for 15 days. Thereafter Moonda and Hayat produced her before the police. She alleged that during this period Moonda appellant used to commit Zina‑bil‑Jabr with her. Before the trial Court she gave her age to be 14‑1/2 years. From the evidence on record it appears that the complainant had produced a birth certificate of the abductce which the Investigating Officer had taken into possession but the said certificate was not tendered in evidence. There is a birth certificate of Mst. Sakina Bibi daughter of Lal Khan on the file which shows that the girl was born on 10‑6‑1963 but this certificate cannot be taken into consideration as it is not known if it is the same certificate which the complainant had produced before the Investigating Officer. Further, as it was not tendered in evidence and got exhibited it cannot be used against the appellants. Even otherwise there is material on record to contradict this certificate and show that the abductee was major at the time of occurrence. I will discuss the said material when take up the statement of the abductee which she made during investigation before a Magistrate soon after her recovery.

13. During her cross‑examination Mst. Sakina Bibi abductee admitted that she had made the following statement before a Magistrate after her recovery:‑ "About, one and a half month ago I on my own accord had gone to Moonda son of Ali resident of Gohari. I lived with Moonda for one and a half month. Manak, Yara, Sarwar, Malka and Lala beat me and torment mc. They want to sell me. They want to kill me. I have not been abducted by any one. I want to go with Moonda son of Ali resident of Gohari. I apprehend danger to my life. I may be saved from my parents. My parents want to sell me. I was engaged to Moonda son of Ali. My marriage with Moonda son of Ali took place 1‑1/2 month back. I now want to go with him." She further admitted that in her said statement she had given her age to be 20/21 years and had also given her name as Rashida Bibi. She, however, stated that the said statement was made by her under coercion and the appellants had extracted it from her. So far as her assertion that the aforementioned statement was extracted from her by the appellants through coercion or undue influence I am not inclined to believe her. She has admitted that she was produced before Ch. Ghulam Nabi Magistrate by the police and at that time her father Lai and brother‑in‑law Mutalli P.Ws. had also accompanied her to the said Court. She had also admitted that she had not been subjected to any torture by the police or by her father. Her father Lal Khan complainant in his statement as P.W.2 has categorically stated that he and Mutalli P.W.3 had accompanied her to the Court of Ch. Ghulam Nabi Magistrate and that she had spent the; night preceding the day when her statement was recorded, in his house. He further stated that neither he nor the appellants had beaten the abductee nor was she under any threat and that she had made the statement voluntarily. In view of this statement when the abductce was produced before the Magistrate from the custody of her father, it could not be said by any stretch of imagination that at the time of her statement she was under the influence of the appellants or her statement was not voluntary. I am convinced that the said statement of the abductee was her voluntary statement and therefore, its contents were true. According to the said statement she was major and her name was Rashida Bibi. Her father never objected that she was not Rashida Bibi and was a minor. I, therefore, have no reason to disbelieve her. In this view of the matter, therefore, it cannot be saw with certainty that the birth certificate placed on record actually relates to the abductee. Consequently, have no hesitation to hold that the statement which she made before the trial Court in which she took a contrary stand is not worthy of reliance and I do not believe it.

14. From the previous statement of the abductee which she had voluntarily made before a Magistrate I am satisfied that she had never been abducted by the appellants and that she had actually eloped with Moonda appellant. Had she been forcibly abducted she could have raised alarm when she was being taken from one place to another. She admitted that she had been travelling by buses sitting with other passengers but never raised any protest. These circumstances falsify the story of her abduction. As regards the allegation of rape she had admitted in her previous statement that she had gone over to Moonda appellant on her own accord, married him and lived with him for full one and a half month. During this period, naturally, she had been cohabiting with him with her consent, if not as a wife as a consenting party and that is why no marks of violence were found on any , part of her body during her medical examination. It, therefore, cannot be held that she had been subjected to rape.

15. The upshot of the above discussion is that the prosecution in the present case had failed to establish the guilt of the appellant beyond reasonable doubt. The appellants, therefore, were entitled to acquittal. Consequently their appeal is accepted and they are acquitted accordingly. They are on bail and arc discharged from their bail bonds. N.H.Q./M‑1801 /L Appeal accepted.