1968 P Cr (PLP)

BAQUER, J.-The nine appellants before us have been convicted under section 366 of the Pakistan Penal Code by the learned Assistant Sessions Judge, Jessore and sentenced in grada tion as under:-Appellants Nos. 1 and 3, namely, Abdu Karim and Mabarak Mollah respectively were sentenced to rigorous imprisonment for five rears each; appellants Nos. 2, 4, 7 and 8 namely, Takabb Shaikh alias Jakabbar Shaikh, Bahadur Mollah, Hamid Mollah and Abdul Khaleque respectively were sentenced to four years rigorous imprisonment each while appellants Nos. 5 and 9, namely, Kalaman Mollab, Wahed Ali Mollah and Reajuddin respectively sentenced to two years rigorous imprisonment each, Prosecution ass was that one Hena Begum daughter of Akkas Sardar was married to accused Abdul Majid. There having been a scandal over illicit connection between his father and wife, Abdul Majid divorced his wife Hena Begum who was subsequently remarried to Abdul Ali son of Haran Shaikh. On the 10th of Poush 1370 B. S., corresponding to 27th of November 1963, while Hena Begum was living with Abdul Ali, the accused persons armed with deadly weapons forcibly carried away Hena Begum from the but of Abdul Ali son of Haran Shaikh with intent to keep her for having illicit intercourse against her will. At the time of abduction, the inmates of the house came out but they were assaulted and threatened. The inmates of the house as well as some neighbours recognised the assailants by the flash of torches focussed by the accused themselves. On the following day Haran Shaikh lodged an F. I. R. on which the case was started. The Investigation Officer visited the place of occurrence, seized Alamats, examined witnesses, searched for Hena Begum without success and then submitted charge sheet on 22-1-1964. There was a judicial enquiry held by a competent Magistrate who committed all the accused numbering 11 in which the present nine appellants before us were included, to stand their trial in the Court of Sessions charging all of them under section 366 of the Penal Code. The defence was a denial of the occurrence as alleged by the prosecution and also denial of the alleged divorce of Hena Begum by accused Abdul Majid and also denial of remarriage between Hens Begum and Abdul Ali. Prosecution examined as many as 18 witnesses besides tender ing one witness for facing cross-examination and tender the evidence of two (2) witnesses recorded in the lower Court under section 33 of the Evidence Act. The defence did not examine any witness. Several exhibits were also filed by both sides. The trial was held with the aid of four Assessors-three of whom found all the accused including the nine appellants not guilty. The learned Judge in disagreement with the majority opinion of the Assessors and without even referring to their opinion, convicted the nine appellants as above acquitting two other accused namely, Abdul Majid (still claiming to be the husband of Hena Begum) and Sekamutullah Golder. Hence this appeal by the nine appellants who have been convicted out of the 11 accused put up for trial. Mr. Salam Khan, the learned Advocate appearing for the appellants has urges the following grounds of the memorandum of appeal which are grounds Nos. 5, 7, 8,17 and

19. Ground No. 5."For that there having been no valid talak the learned Assistant Sessions Judge should not have convicted the appellants," Ground No. 7.-For that the learned Assistant Sessions judge failed to consider the positive evidence of P. W. 10 Ibrahim Sardar on the point of divorce by accused Majid of Hena Begum. As a matter of fact P. W. 10 deposed to the following terms: "There was a Shalish on 27-11-63 regarding the truth of the divorce of Hena Begum by accused Abdul Majid. I was one of the Shalish of 10 Matbars. My villagers were present. Statement of both Hena Begum, Majid, Akkas, Ajiz Daoud, Shamsuddin and others'(sic) we could not decide any thing". Ground No. 8.-For that the learned Assistant Sessions Judge should have disbelieved the occurrence as alleged by the prosecution as P. W. 2 Abdul Ali's father deposed that occurrence took place 10/15 days after my son's marriage whereas P. W. 12 deposed that occurrence took place after one month of the alleged marriage." . Ground No. 16.-"For that conviction of the appellant under section 366, P. P. C. cannot be sustained in law as they took away the woman in assertion of their right and not for any illicit intercourse." Ground No. 17.-"For that the learned Assistant Sessions Judge failed to see that even if the accused persons took away in assertion of their lawful claim as wife then the appellant have committed no offence." Ground No. 19.-"For that the learned Assistant Sessions Judge failed to see that in the present case the most important witness is the abducted woman herself and she having not deposed it is extremely dangerous to convict the appellants under section 366 of the Pakistan Penal Code." Mr. Salam Khan's contention in substance is that even if the taking away by force from the house of the complainant be accepted, that was not enough for the purpose of driving the charge home against the appellants under section 366 of Penal Code. The Chapter in which section 366 of the Penal Code is included, according to Mr. Salam Khan, deals with taking for various purposes and it is only" the taking with the intention of illicit intercourse of marrying against her will that has been made punishable by the section. He wants to say that by reason of the person abducted not having been brought to the dock in the present case, no inference as to the intention of illicit intercourse or forceful marriage could be inferred. This inference, according to him, would be justified only when there is positive evidence by witnesses who had seen the attempt at illicit intercourse or there was some evidence of seeking force ful marriage and the person abducted was thereafter spirited away so as to deprive the Court from bearing the victim herself. He has also challenged the admissibility of Exh. 2-affidavit sworn by the victim dated 13-12-1963, showing that she was divorced by accused Abdul Majid (who has been acquitted by the learned Judge) before the date of occurrence on 27-12-1963 Mr. Salam Khan has contended that Exh. 2 showing the divorce of Hena Begum by Abdul Majid was wrongly relied upon by the Learned Judge in convicting the appellants. With these grounds at the background of our mind, we proceed to give a brief resume of the evidence produced in the case with the salient features. P. W. I is Haran Shaikh. He is also the informant in the case. He has stated that his son Abdul Ali married Hena Begum daughter of Akkas Sardar in Agrahayan 1370 B. S. after she was divorced by accused Abdul Maid on 22nd Jaistha 1370 B. S., and his son and daughter used to live in east Bhiti but and that the witness himself used to live in another but in the same Bhiti. At about 2/2-30 a.m. at night following Thursday on the 10th of Poush 1370 B. S., corresponding to 27-12-1963, he woke up on hearing cry of his son Abdul Ali and found the homestead lighted, When he went near his but accused Bahadur dealt a lathi blow on his shoulder. He saw accused Mobarak and Karim Khan standing with two guns in their hands. He saw accused Reajuddin, Abdul Majid Khan, Kolem. Sekmatullah, Jabbar, Wabed Ali Mollah, Hamid Mollah, Khalaque Mollah and Tekabbar Shaikh. Khalaque and Tekabbar had duo and lathi. All others had lathis. Some were beating his wife who came out of her hue; some were cutting the Jhap door of the but of his son Abdul Ali. He found Khalaque and Tekabbar dragging his daughter-in-law Hena Begum who was crying for help. Abdul Ali was also assaulted. The witness along with others raised alarm but no neighbour could come at the place of occurrence out of fear. Soon after the accused decamped with the witness's daughter-in-law. He also stated that Hena Begum was still detained by the accused and that Abdul Majid filed a suit for restitution of conjugal rights over Hena Begum after which he was committed to the Court of Sessions and that that suit was dismissed. It has been orally stated at the Bar that the suit which was dismissed for default had been later restored. In cross-examination P. W. 1 stated that his father's name was Anadi Chakraborty and that he embraced Islam in 1309 B. S. He had three wives, his son Abdul Ali's first wife died, his second wife was divorced and Hena Begum was his third wife. He also admitted in cross-examination that Hena Begum was divorced by, Abdul Majid orally in presence of Shamsuddin Sardar, Abdul Aziz Mollah and others. He went on to state that he was not present at the place of divorce but Shamsuddin and Abdul Aziz were present. On this evidence the divorce does snot seem to be convincingly established particularly having regard to the stringent procedure for divorce as laid down in the Muslim Family Laws Ordinance, 1961, to which we propose to advert hereafter. He also admitted that he did not remember the date of marri age of Hena Begum with his son but at the same time said that it was in the last part of Araha and that the marriage was solemnised by the Marriage Registrar and that Abdul Khaleque Mollab performed the celebration and the Marriage Registrar was by his side. It is strange that the date of marriage was not remembered by the father and as we shall see later it does not appear that the marriage was solemnised by the Marriage Registrar. In the committing Court, it appears be said that one Moulvi of the house of Pir Saheb of Noapara solemnised the marriage which was registered by the Marriage Registrar and one Latif was the Vakil. At the trial the witness stated that father of the girl was the Vaki1 of the marriage. He also stated that 10 or 15 days before the occurrence his son married Hena Begum. As we shall see later, according to P. W. 12 Chutu Bibi, the occurrence took place after one month of marriage and besides the nature of the evidence as to the marriage as disclosed, casts a shroud of mystery upon the marriage itself. He also stated that he did not know if the suit in the Munsiff's Court had been reviewed. P. W. 2 is Abdul Ali claiming to be the present husband of the victim, He has supported his father P. W. 1 substantially as to the manner of the incident. He also claims to have been injured and that he was examined by a doctor. He did not say anything about Hena Begum crying at the first instance but on recall by the Public Prosecutor he stated that when his wife Hens Begum was dragged out of his but by the accused, she cried out for help and that she was crying all the while till she was taken out of hearing. P. W. 3 is Abdul Shaikh younger brother of P. W.

2. He has also deposed substantially in the same manner as the other two. He found the accused taking away Hena Begum towards the north when she was crying. In cross-examination be stated that he did not remember if he stated in the committing Court that no marriage took place in their house and that it took place in the house of Pir Saheb. It appears that the witness did say so in the committing Court. P. W. 4 is Syed Ahmad, a Muktear of the local Courts. He stated that the affidavit Exh. 2 was written by his Moharar Momtazuddin in his presence according to the statement of Hena Begum daughter of Akkas Ali Sardar as identified by the witness. She put her L. T. I. on it finding the statement correctly written after it was read over to her. This is Exh.

2. He also proved the order sheets of the Magistrate before whom the affidavit was affirmed by Hena Begum. These have been marked as Exhs. 3 and 3-A. P. W. 5 is Pir Mohammad Mollah, a neighbour hailing from 1 Bigha away. He stated that he woke up on hearing hue and cry from his house and ran to 'the spot and found many people armed with various weapons and torches and that he found some people going away crying and that after the people decamped he entered the house and found the Jhap door of the but of Abdul Ali cut off and Abdul Ali- Haran Shakh and his wife injured. He also stated that they told him that the culprits forcibly took away Hena Begum wife of Abdul Ali. In cross-examination he stated that he did not state in the committing Court that he could not recognise the woman who was carried away by the accused while it appears that what he stated in the committing Court was that he saw the accused taking one woman from inside the house and he did not see who that woman was. P. W. 6 is Harez Moral hailing from two Rashis away. He found Hena Begum wife of Abdul Ali carried away by the culprits towards the north. There was a suggestion to this witness that he lives in the land of Haran which he denied, P. W. 7 was tendered; cross-examination was declined. P. W. 8 is Abdul Aziz Mollah hailing from the village Dhopadi which is the village of accused Abdul Majid. He stated that Hena Begum was the wife of Abdul Majid but he divorced her with Tin Talak on the 27th of Jaistha 1370 B. S., in his house and that he himself, Shamsuddin Sardar, Kanu Mollah, Dobir, Doud and others were present on that occasion to bear testimony of the divorce. Akkas father of Hena Begum was also present. The reason for the divorce was reported to have been illicit intercourse of Hena Begum by accused Karim father of Majid and that Hena Begum left the house with her father soon after the divorce was pronounced. In cross-examination the witness stated that he told the Investigation Officer that Majid divorced Hena Begum on 22nd of Jaistha 1370 B. S. whereas it appears that to the Investigation Officer the witness did not state the date of the Tin Talak of Majid. He also admitted that there was no Talak by any writing and there was writing in Agrahayan. P. W. 9 is Shamsuddin hailing from the same village as that of Abdul Majid. He also claims to have been present at the divorce P. W. 10 is Ibrahim Sardar also a resident of Dhopadi the same village as that of Abdul Majid. He has stated that there was a Salish on 23-11-1963, regarding the truth of the divorce of Hena Begum by accused Abdul Majid and that he was one of the Salish A Of ten Matbars and many villagers were also present. He also stated that they could not decide anything. P. W. 11 is Nurul Alam, a formal witness who recorded the F. I. R. and whose B cross-examination was declined. P. W. 12 is Chutu Bibi wife of P. W. 1 Haran Shaikh. She has tried to support her husband P. W. 1 and her son as to the manner of the occurrence and the personnel involved and stated that the accused party dragged her son's wife Hena Begum who kept crying. She stated in cross-examination that Hena Begum was married to her son about one month before the occurrence and that the marriage was solemnised in their house. She also stated that Hena Begum came to their house for the first time on the date of her marriage with her son and that she did not state in the committing Court that Hena Begum came to their house two months before the marriage with her son. It appears, however, that in the committing Court she said that Hena Begum came to their house months before the marriage. As it will appear from the above there is sufficient contro versy as to the date of the marriage and as to when exactly the marriage took place and as to whether Hena Begum was actually free to marry at the time of marriage. P. W. 13 is Mohammad Ali Mridha also a neighbour of P. W.

1. He saw the fringe of the occurrence and heard the crying of the girl. P. W. 14 is Ali Akbar Mollah another neighbour of P. W. 1 who also saw the incident and found many people carrying away Hena Begum. He saw the Jhap door of Abdul's but cut off and also heard Hena Begum crying. P. W. 15 is Hashem Ali Miah, Marriage Registrar of the District of Jessore who was tendered by the prosecution. In cross examination by the defence he stated that he did not register any marriage between Hena Begum and accused Abdul - Majid. Then said that he registered the marriage between Hena Begum and, Abdul Majid. He also stated that some people came to him alleging that Hena Begum was ravished by her father-in-law and that they went to him for a Fatwa on the matter and that he directed them to go to Madrassa. The witness also admitted in cross-examination that he did not celebrate any marriage between Hena Begum and Abdul Ali and that when some people went to him to invite him to perform the marriage between Hena Begum and Abdul Ali the witness declined to perform it. The witness also stated that he did not tell in the committing Court that he was not invited to celebrate the marriage. It appears that in the committing Court he stated that he was not invited to celebrate the marriage but he went there spontaneously. One thing is clear from the evidence of this witness and that is that the marriage between Abdul Ali and Hena Begum was not solemnised by him when the usual procedure is for the solemnisation to be by the Marriage Registrar. P. W. 16 is Abdul Latif Sardar who claims to have been present at the marriage between Hena Begum and Abdul Latif as the witness of the marriage in Agrahayan 1370 B. S. He did not remember the date. He also stated that the Marriage Registrar of the locality was present and Akkas father of the girl was himself the Vakil of the marriage. In cross-examination the witness admitted that he was suspected for the theft of a cow which he claims to have purchased. P. W. 17 is Yusuf Ali who also claims to have been present at the marriage between Hena Begum and Abdul Ali as a witness of the marriage in Agrahayan 1370 B. S. He also did not remember the date of the marriage and stated that the Marriage Registrar of Noapara was present. P. W. 18 is Abdul Khaleque. This Abdul Khaleque who works in the house of Pir Saheb of Noapara also claims to be present at the marriage. He stated that in Agrahayan 1370 B. S. the Marriage Registrar took him to the house of Haran Shaikh where he performed the marriage between Hena Begum and Abdul Ali. In his cross-examination the witness stated that he did not obtain any licence for performing marriages and that he went to perform this marriage as called upon by the Marriage Registrar and that Hena Begum was not known to him from before. He also stated at the trial that the Den Mohar was fixed at Rs. 500 whereas it appears that in the committing Court he stated that he could not say the amount of Den Mohar. The evidence as above makes the very marriage between Abdul Ali and Hena Begum rather shaky. . The next witness is P. W. 19 Abdul Jalil, S. I. of police who investigated into the case. He seized various Alamats including the remnants of the broken Jhap door. In cross-examination the witness stated that Hashem Ali P. W. 15 at the trial, Abdul Khaleque P. W. 18 at the trial, Abdul Latif P. W. 16 at the trial and Yusuf Ali P. W. 17 at the trial were not witnesses in the charge sheet and that Ali Ahmad-Moulvi of Noapara Madrassa was a charge sheet witness. It will thus appear that some crucial witnesses in the case were not even charge sheet witnesses and that an important witness like Ali Ahmed had not stated to him the date of Tin Talak of Majid, that P. W. Shamsuddin did not state to him that after taking Fatwa from Moulvi P. W. he requested Majid to divorce Hena Begum of that Haran did not name Khaleque and Reajuddin to him and that Ali Akbar stated to him about his recognition of accused Wahed Ali. He also stated that he did not examine Hashem, Khaleque, Latif and Yusuf under sec tion 161 of the Code of Criminal Procedure. The evidence of P. W. 4 Akkas Sardar of the committing Court has been put in under section 33 of the Evidence Act by reason of the fact that he died by the time the case came to be beard at the trial. He stated in the committing Court that Hens Begum was his daughter and that she was married to Abdul Majid about one year prior to the date of occurrence and that by reason of illicit intercourse between his daughter and Majid's father there was Salish and in that Salish Majid gave Tin Talak to Hena Begum in presence of all. Thereafter he took her to his house and that his daughter, came to Jessore to S. D. O.'s Court and made an affidavit and that the Marriage Registrar and the Pir Saheb of Noapara gave Fatwa that his daughter was divorced. It will be recalled that the evidence with regard to the Salish as given by P. W. 10 does not show that there was any utterance of any Tin Talak by Abdul Majid at the Salish. In cross-examina tion the witness stated that Hena Begum was married with Akbar before Majid and he admitted that he had no document to show that Majid bad given Talak to her and he also stated that he did not remember the date on which Hena Begum was married to Abdul Ali, and that the marriage took place in the house of Abdul Ali. The witness also stated that the marriage was registered and that the registration form was given to the Daroga. It is to be noted that the Daroga does not speak of having received any registration form as stated by the witness. That is all the oral evidence adduced by the prosecution. Of the three defence witnesses examined D.W. 1 is the Muktear of the Sadar Court who proved Exh. B. In cross-examination he stated that it was customary that petitions are read over after writing and that there was nothing in the petition to show that it was read over. D. W. 2 is another Muktear of the Sadar Court who proved Exh. C. In cross-examination he stated that one person claiming to be Abdul Majid and produced before him said that the woman accompanying him was his wife bearing name Hena Begum and that none was known to him. D. W.- 3 is Aminul Islam who said that he wrote the plaint and petition and affidavit marked Exh. D. E. and C according to the instruction of his senior pleader. In cross-examination the witness stated that he was junior to the Advocate who was moving in the case for the accused and that the suit was restored to file on 19-6-1965. We do not feel called upon to dilate on these exhibits as produced by the defence having regard to the fact that even independently of this the prosecution case seems to stand on rather shaky basis for reasons which we will further dilate upon hereafter. In the light of the evidence as disclosed the taking by force of Hena Begum on the relevant night seems to have been made out as there is the evidence of the breaking of the Jhap door and also the evidence of the victim crying when she was being taken away. The injuries sustained by the complainant party, it is true, could not be proved by reason of the absence of any medical evidence. The question that remains is, was the taking with the intention of illicit intercourse or marrying her against her will? For whatever reason, the woman was not in the dock. There is neither any evidence of any one having seen or heard of the illicit intercourse or of the attempt or of trying to marry her against her wishes, The fact remains that she is at least the erst while wife of Abdul Majid and her very divorce by Abdul Majid remains a subject of doubt. Not only there is also the feature that the marriage with Abdul Ali from whose custody she is alleged to have been taken away, is not above dispute. The victim herself in these circumstances would seem to be a very essential witness although we cannot agree that her testimony at the dock is in all cases the sine qua non for making out the intention contemplated by the section. If she continues to be the wife of Abdul Majid, there is no question of illicit intercourse with her by Abdul Majid nor for that matter any marriage against her will Reference has been made to several decisions by both sides. Mr. Salam Khan has not placed any decision directly on the point that in the absence of the prosecutrix the Court could not infer the intentions contemplated by the section. Mr. Salam Khan has rather proceeded in the reverse order by making adverse comments of general nature on the decision in the case of Muhammad Sadiq v. Emperor (A I R 1938 Lah. 474) in which it was held inter alia. "In case of offence under section 366, the evidence of the girl alleged to have been abducted must be taken with a great amount of caution. Even a forcibly abduction does not amount to an offence under section 366, unless there are other ingredients, namely, he intention either that the girl should be seduced or forced to illicit intercourse or that she should be compelled to marry against her will. In cases of forcible abduction, there can seldom be direct evidence as to the actual intention of the abductor and that intention must be inferred from the circum stances of each case under section 114, Evidence Act. Human nature being what it is whenever one finds a young man abducting a girl of marriagable age, the first natural presumption must be that he has abducted her with the intention of having sexual intercourse with her either forcibly, or with her consent after seduction, or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him under section 106, Evidence Act to prove that intention." While Mr. R. N. Chowdhury appearing for the State has relied on this decision, Mr. Salam Khan has made the comment that the learned Single Judge Blacker, J. went too far on the basis of not oral human nature; the learned Judge having observed :- "Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first natural pre sumption must be that he has abducted her with the intention of having sexual intercourse . . ." Now that was a case in which an unmarried girl aged 16 or 17 was alleged to have been abducted. There was evidence of taking her against her will and on the basis of human nature being what it is as observed by the learned Judge, the intention for illicit intercourse was taken for granted. It is to be noted that in that case the girl herself deposed and her evidence was treated with caution. On the basis of human nature the conviction was upheld. Whatsoever the observations as to the inference drawn from human nature, close examination of the facts of the case reveals that in that case there was the further evidence of the girl herself that the appellants told her that she was going to be married to one of the appellants Ghulam Mustafa. So that the basis of that decision is not human, nature alone but something more in addition, namely, her being told that she was going to b; married. It is also to be borne in mind that in our present case strangely enough the father and son have together taken part in the alleged abduction. It is also to be noted that the victim as well as Abdul Majid one of the accused acquitted by the learned Assistant Sessions Judge and who claims to be still the husband of the victim are both married. Majid had two previous wives in the same way as Hena Begum had two previous husbands. There was some evidence in that case of trying to marry the girl against her wishes and in that view the basis of human conduct does not seem to be the raison detre of that decision. The learned Single fudge, however, reduced the sentence to the very minimum. In our present case there is not even the faintest evidence of the intention for illicit intercourse of forcible marriage. In the other case shown, namely, in the case of Haidar Shah v. Emperor (A I R 1930 Lah. 5) it was held as under:- "In a case under section 366, it is the duty of the prosecu tion to prove that the abduction took place with the intention mentioned in the section, but then the intention can also be inferred from the conduct of the accused and the circumstances of the case. Ordinarily it is not possible for the prosecution to establish the intention except by proving the conduct. A girl of about 14 years was forcibly abducted by the accused. Held: that no inference except of the intention such as is mentioned in section 366 is possible." The girl abducted was above 14 according to the relations while according to herself she was 18 years. The girl herself was in the dock on behalf of the defence and deposed that she went voluntarily and out of her free will. The learned Single Judge being of the view that she was won over, disbelieved her evidence and convicted the appellant. The learned Judge observed:- "A number of cases were cited before me in support of the proposition that in a case under section 366, it is the duty of the prosecution to prove that abduction took place with the intention mentioned in that section. I feel no difficulty in assenting to this abstract proposition of law, but then the intention can also be inferred from the conduct of the accused and the circumstances of the case and ordinarily it is not possible for the prosecution to establish the intention except by proving the conduct of the accused. In the present case a girl who according to the witness for prosecution, is alleged to be between 13 and 14 years of age, but according to her own statement is 18 years (the magistrate had believed the prosecution version on this point) is forcibly carried away by the accused. Under the circumstances men tioned above there can be no other inference except of the intention such as mentioned in section 366, I. P. C." And the learned Judge proceeding on the basis of conduct held that in the circumstances mentioned, there could be no other inference except that of the intention such as is mentioned in section 366 of the

1. P. C. The learned Judge has proceeded on the basis of conduct although he has not mentioned any conduct directly indicative of illicit intercourse or forcible marriage. The judgment is a short one and it seems that the decision as to intention for illicit intercourse or forcible marriage was based more on the antecedent circumstances and not on the basis of the conduct of the appellant. The antecedent circum stances were that Rang Shah, a collateral of Haidar Shah had a daughter named Mst. Hayat Bibi. Rang Shah was a sonless proprietor and naturally his collaterals were anxious that the girl should be married in the family, so that the estate may not go out to a stranger, Haider Shah the appellant was consequently a candidate for the hand of Hayat Bibi, but owing to his antecedents Rang Shah was not willing to give the girl to him. Instead he offered her to another cousin of Haider Shah but this proposal was not acceptable to Haider Shah's family because that cousin had already been betrothed to another girl. Hayat Bibi was, therefore; married to one Mohammad Shah. It is alleged that it was the intention of Rang Shah to make Muhammad Shah his Khana Damad. This caused offence to his reversioners and consequently, it is alleged that on 17th of September 1928, when Hayat Bibi was sitting in her house with her step-mother Mst. Jannat Bibi in the absence of Rang Shah, Haidar Shah with several others came and abducted the girl. These circumstances tong in the background one could not hold that from the very forcible taking of the young girl by the young man, the inference as to the intention was made. Mr. B. N. Chowdhury has taken this decision to be in his favour. It is after all single Bench decision without sufficient reasoning being shown. It is to be noted that this decision does not even mention the principle of human nature being what is "as the reason as mentioned in the other decision, namely, Muhammad Sadiq v. Emperor (A I R 1938 Lah. 474). Moreover, in this A I R case namely, in the case of Haider Shah A I R 1930 Lah. 52, there was the additional aggravating feature that appellant Haider Shah was also found guilty under section 304 of the Penal Code for having caused the death of one of the complainant party in course of the offence and the loin cloth and Dopatta of Hayat Bibi the abducted girl were left behind during the struggle which attended her abduction. The inference of the intention for illicit intercourse was also greatly due to the aggravating circumstances of the case. This decision was one based on the peculiar circumstances of the case and does not seem to lay down any clear principle. Mr. B. N. Chowdhury for the State has next placed decision of this Court which is a Divisional Bench decision, namely, that of Siddique and others v. The state (P L D 1959 Dacca 956). It was held in this decision as under:-- "Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he has abducted her with intention of having sexual intercourse with her, either forcibly or with her consent after abduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case the burden lies upon him under sec tion 106, Evidence Act, to prove that intention." In this decision reliance has been placed upon the principle established in the case of Mohammad Sadiq A I R 1938 Lah, 474, and it also followed the decision in the case of Haider Shah A I R 1930 Lah. 52 as already discussed. In this Dacca decision (Siddique and others), the Court found that the girl Gul Bahar was less than 16 years at the relevant time. There was also the common feature with the case under appeal before us, namely, that the girl herself was untraced and her whereabouts were not known. It is to be noted that the circumstances that led the Court to make the inference of illicit intercourse in that case, were the evidence that 10/12 days prior to the occurrence this Gul Bahar was married to one Yunus, brother of the complainant. There was also evidence that about a month previous to this marriage with Yunus, the mother of the appellant Siddique, made a proposal to the father of the girl for the marriage of his daughter to appellant Siddique which was turned down. There was no elaborate defence in that case as in the case under appeal before us except that of innocence and that the girl was still in the custody of the complainant. There was also the circumstance that the girl was under 16 years. It was in these circumstances that the principle, namely, "Human nature being what it is, etc." was accepted. Now what are the circumstances of the present case under appeal? There is nothing to show the intention; no evidence of trying to marry her or having forcible intercourse with her. Exh. 2 has been taken as indicative of divorce between Hena Begum and accused Abdul Majid. Hena Begum could not be found. The question is, is it admissible to show the relation ship between Abdul Majid and Hena Begum prior to the occurrence? The learned Assistant Sessions Judge , has held this statement in affidavit Exh. 2, as admissible and on that he has taken the view that at the time of occurrence Hena Begum did not continue to be the legally married wife of Abdul Majid and that there was a divorce by the latter. The question is, was the learned Assistant Sessions Judge right in doing so? Mr. Salam Khan has argued that it could not be admissible while Mr. B. N.. Chowdhury has argued that it was admissible. Mr. Chowdhury has placed the decision in the case of Dolgobinda Paricha v. Nimai Charan Misra and others (A I R 1959 S C 914), in which it was observed and held inter alia as follows:- "Four conditions must be fulfilled for the application of subsection (5) of section 32 firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead or cannot be found etc., as mentioned in the initial part of the section; secondly, the documents must relate to the existence of any relationship by blood, marriage or adoption; thirdly, the person making the statement must have special means of knowledge as to the relationship in question; lastly the statements must have been made before the question in dispute was raised. A woman made a statement on her own behalf and on behalf of the three sons, as to a pedigree. The woman was dead and so was one of the brothers; Held, that the statement was as much a statement the woman and one of, the brothers who were dead, as a statement of brothers who were alive and was admissible under section 32 (5), if it was made ante lirem molan (Statement held was made ante lirem motam)". He has also cited the decision in the case of Irahakan Parichha and others v. Nimai Charan Misra and others (A I R 1952 Orissa 75), in which it was observed and held as under:- "The declaration of a deceased person as to the relationship of parties in order to be admissible must have been made `ante litem motan'. The mere existence of the situation out of which the dispute subsequently raised, does not render a declaration inadmissible; the condition of 'ante litem motam' involves the idea that the dispute, if any, on the former occasion must not be the same in substance as the dispute in the later suit. The statement sought to be used will not be excluded if it merely related to some matter foreign or collateral to the matter in controversy on the former occasion . . . . . . . where a statement as to relationship of persons signed by 'A' was filed by him, on his behalf, on behalf of his two brothers and 'A' died subsequently: Held, that admissibility of statement could not be challenged on the ground that the two brothers who were alive were not examined as witnesses;" The implications of those two decisions do not seem to be very clear. The relevant portion of section 32 of the Evidence Act is as under:- - "Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- or relates to existence of relationship: (5) When the state ment relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption, the person making the state ment had special means of knowledge, and when the statement was made before the question in dispute was raised." Section 32 of the Evidence Act as above relates to statements by persons who cannot be called as witnesses or cannot be found. In this case certainly the abducted woman would have been competent witness if she was found. The fact is that in this case she could not be found in spite of search. So her evidence is primarily admissible. The next question is, whether the statement relates to existence of relationship by marriage. The existence of any relationship includes the non-existence of that relationship vide page 315 Monir's Law of Evidence, Third Edition. There is no doubt that existence of relationship includes also the non-existence of the same. See Suba Raut v. Dindayal (191 I C 674). In the light of the defence as taken in the case, the question being whether relationship of marriage. exists between the abducted woman and the abductor Abdul Majid, the fact that Abdul Majid divorced her on a certain date, would prima facie seem to admissible and relevant under the section. The next hurdle is as to whether the affidavit was made before the question in dispute had arisen. It seems that what is meant by "before the question in dispute was raised" is that to be admissible, such statement or affidavit must have been made ante litem motem. The question, therefore, is whether this statement as to divorce or cessation of the relationship of husband and wife between the abducted woman and Abdul Majid as contained in Exh. 2, was made before the precise question in dispute had arisen. The element to be avoided is a bias in the mind of the declarant, and this is highly probable if a dispute or controversy is in progress even though it may not have reached the stage o legal proceedings. The 'lis' should date at least from the time when the parties have respectively assumed hostile attitude and it does not seem that a suit is necessary to constitute the 'lis'. By ante litem motam what is perhaps meant is that the declaration is to be not merely before the commencement of the legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations. For the above views reliance has been placed on the decision in the case of Mohammad Azim Khan v. Rajo Saiyid Md. Sadat Ali Khan and others (A I R 1931 Oudh 177), in which it was held inter alia that "Declarations as to the existence of relationship by blood are inadmissible in evidence if made post /item motam. In order to be admissible they must be made ante /item motan which means not merely before the commencement of legal proceedings, but before even the existence of any actual controversy concerning the subject-matter of declaration. Declaration made in the obvious interest of the declarant will generally speaking be rejected." The expression "before the question in dispute was raised" does not necessarily mean simply before a suit has been filed and it appears also that a statement relating to a person's own relation ship made by a person in his affidavit or mortgage executed by him is admissible under clause (5) of the section aforesaid and cannot be rejected because it related to his own relationship such construction would make illustration K to the section wrong. Now, in this case, Exh. 2 is dated 13-12-1.963 while already a Salish over the question of divorce had taken place on 27-11-1963 as per evidence of P. W. 10 who stated that there was a Salish on 27-11-1963 regarding the truth of the divorce of Hena Begum by the accused Abdul Majid and that he was one of the Salish and that they could not decide anything. That being the position this Exh. 2 is not admissible under section 32 (5) of the Evidence Act. If this evidence of divorce of Hena Begum as per Exh. 2 goes out, let us see if there is any other evidence of divorce between Abdul Majid and Hena Begum. There is not a scrap of paper showing this except mere discrepant statements by interested persons. The very divorce from Abdul Majid and marriage with Abdul Ali are dubious. It will be recalled that P. W. 2 Abdul Ali's father deposed that the occurrence took place 10/15 days after his son's marriage whereas P. W. 12 deposed that the occurrence took place after one month of the alleged marriage and that there was little chance of their being valid divorce between accused Abdul Majid and Hena Begum as P. W. 15 the Marriage Registrar declined to perform the marriage between Abdul Ali and Hena Begum. Moreover, the position with regard to marriage and divorce is rather stringent after the coming into force of the Muslim Family Laws Ordinance, 1961. The marriage has to be registered under penalty and then there are the stringent provisions under section 7 (1) of the Muslin Family Laws Ordinance in the matter of divorce which may b quoted as follows:- "7. (1) Any man who wishes to divorce his wife shall, as soot as may be after the pronouncement of Talaq in any form what so ever, give the Chairman notice in writing of his having don so and shall supply a copy thereof to the wife. (2) Whoever contravenes the provision of subsection (1) shall be punishable with simple imprisonment for a term which may be extended to one year or with fine which may be extended to five thousand rupees or with both. (3) Save as provided in subsection (5) a Talak unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under sub section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) if the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub section (3) or the pregnancy whichever be later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband without an intervening marriage with a third person unless such termination is for the third time so effective." For ninety days the divorce is not effective and there may be reconciliation and there are various formalities to be gone through which seem to be absent in the present case. In these circumstances, the intention to commit illicit intercourse or to marry her against her will, does not seem to arise. Though the case is not under section 498 of the Penal Code of enticing the wife of another, the circumstances as disclosed negative even the intentions contemplated by section 366 of the Penal Code. In the facts of the present case it seems that it was not only highly essential but also sine qua non for the victim girl to make her say about the intention of the assailants she being a major. The decision in the case of Ghulam and another v. Emperor ((1927) 28 Cr. L J 277) also a single Bench decision of the Lahore High Court seems to be an apt decision. It was observed in that decision that the most important witness in an abduction case is generally the abducted woman herself and where she is not forthcoming and other witnesses are not of very reliable type, the prosecution evidence must be carefully scrutinised and weighed. Ours is also a case where the prosecutrix is not available and we have naturally been very cautious in our examination of the evidence as produced. In that case the victim a married girl of about 15 years of age was not forthcoming at the dock to tell her own story and it was very likely that she was with one of the absconding accused as here. In a previous case for the abduction of this abducted girl's aunt she deposed as a P. W. but the accused persons were acquitted in that case. The prosecution theory was that this time she had been abducted because she had given evidence against the accused in the former case. The defence was that she eloped and that the story of her abduction was connected to implicate as many as nine men of whom six persons were acquitted. In those circumstances, the learned Single Judge acquitted the appellants observing as above. Careful scrutiny and weighing of evidence in our present case under appeal does not make out any case for conviction under section 366 of the Penal Code. Though the taking away by force may be accepted, the second ingredient, namely, that of taking away with the intention of illicit intercourse or forcible marriage could not be proved by the circumstances and evidence as divulged. It will be recalled that in the cases as reported in A I R 1938 Lah. 474, A I R 1930 Lah. 52 and P L D 1959 Dacca956 as discuss ed before, there way the common feature that the age of the abduc ted girl in each case was accepted to be under 16 years and what is more except in the case of P L D 1959 Dacca 956 the victim girls were themselves in the witness box. It will also be recalled that in the case of A I R 1938 Lah. 474, as well as in the case of A I R 1930 Lah. 52, the willingness or naturality of the abducted girl was not taken into account in fixing the guilt upon the appellants apparently because their ages were taken to be under 16 years of age. In the case of P L D 1959 Dacca 956 also the victim girl's age; was below 16 years although in that case also she was not present in the witness box. The implication in all these cases though not stated in so many words, seems to be that of the minors being in capable of giving true and legal consent. In the case reported in (1927) 28 Cr. L J 297, as already discussed, the presence of the victim girl was con sidered essential although she was under 16 years apparently implying .that even in the case of minority of the victim her version has to be heard for judging the relevant intention of the accused and when she does not appear in the witness box, other evidence as to the crime has to be strictly scrutinised, In the cases of A I R 1930 Lah 52 and A I R 1938 Lah. 474, the consent of the victim girl was considered immaterial while in the case of (1927) 28 Cr. L J 277, her very presence was con sidered essential for unfurling the criminal intentions of the accused as contemplated by the section. It is to be noted that in the case under appeal the age of the abducted woman was by all accounts well above 16 years at the time of the abduction, though there is no definite finding by the trial Court and in that view of the matter her presence at the witness box was an indispensible condition and not only essential as in the facts of the case reported in (1927) 28 Cr. L J

277. We note that originally the enquiring Court by a very lengthy judgment after careful analysis of the evidence discharged the accused. It seems that it was right. In the result, we allow the appeal and set aside the conviction and sentence of all the appellants and they stand acquitted. Appellants Nos. 1, 3, 5, 6 and 9 who are on bail are dis charged of their bail bonds. Those who are not on bail are directed to be set at liberty forthwith if not wanted in any other connection. Appeal allowed.