1983 P Cr (PLP)

Sh. Afzal Hussain for the State. Dates of hearing : 6th and 8th December, 1982. Muhammad Hanif, Muhammad Ramzan sons of Esa, Umra and his wife Mst. Sultani were tried for the abduction of Mst. Ghulam Fizza. The male accused were also tried for rape on her. On 15th November, 1980 Mr. Nisar Ahmad Bhatti, Magistrate Section 30 acquitted Mst. Sultani of the charge, but convicted her husband under section 366, P. P. C. and sentenced him to one year R. I. Muhammad Hanif and Muhammad Ramzan were convicted on both the counts under sections 366 and 376, P. P. C. and were sentenced to five years' R. I. each on each count. The two convicts have come up in appeal. 2 Mst. Ghulam Fizza daughter of Ghulam Haider was called from her house by Mst. Sultani about 15(16 days before the matter was reported to the police. It was Isha" time. She asked Mst. Fizza to accompany her for the call of nature. Consequently she went with her and in the fields the three accused appeared and forcibly took her away to the house of their relatives in Mauza Kucha. On the following day, Umra left. Muhammad Hanif and Muhammad Ramzan took her to different places and during this period they raped her. On 27th April, 1975 while they were taking her to village Dhob and reached near Tibba Meharban Shah, on seeing other people she raised an alarm. The accused ran away leaving her behind. She narrated the whole story to P. W. 3 Muhammad Nawaz and Lutaf Hussain Shah. They brought her back to her father who took her to the Police Station. F. I. R. (Exh. P. A.) was registered on 27th April, 1975 at Police Station Piplan at l I a. m. situated at a distance of one furlong from the house of Ghulam Haider father of the prosecutrix. P. W. 5 Ghulam Abbas, Head Constable partly investigated this case. P. W. 4 Muhammad Aslam S.‑I. arrested the accused on 6th May, 1975. A gun was recovered from Muhammad Hanif accused, which was taken into possession vide memo. Exh. P. W. 5 Ghulam Abbas, A. S.‑I. and Syed Ghulam Rasool (not produced) besides the Investigating Officer. P. W. 6 Lady Dr. Jamila Lodhi, Woman Medical Officer, Civil Hos pital, Headquarters Sargodha, on 30th April, 1975 examined Mst. Ghulam Fizza. According to her, Mst. Ghulam Fizza was not a virgin. The X‑Ray report (Exh. P. 1) revealed that she was about 18 years of age. At the trial however, Mst. Ghulam Fizza gave out her age as 15 years. It may be mentioned here that her father did not mention her age at all at the trial.

3. After completing the investigation the accused were sent up for trial. They denied guilt and ascribed the case to enmity. They, however, did not produce any evidence in defence.

4. Relying on the statements of the prosecutrix and other witnesses, trial Court came to the conclusion that the two appellants were guilty of rape and abduction.

5. Learned counsel for the appellants contended that on the face of it, it appears to be a case of consent. He argued that in this case although the police station was situated at a distance of one furlong from the house of the informant, yet her father did not make a prompt report about her abduction. Explaining the delay in the F. I. R., P. W. 2 Ghulam Haider stated that he had gone to the police station, but Ahmad Yar Head Constable asked him to search for his daughter first and they would also help him in doing so. This statement of the informant is not corroborated by any police officer. Ahmad Yar Head Constable was also not produced as a witness in this case. Learned counsel further contended that it would be unlikely that although Mst. Ghulam Fizza was kept in the village for about 15/16 days, yet her relations and other persons did not come to know about her abduction. He argued that none from her village appeared as a witness in this case. He further contended that the story of the recovery of Mst. Ghulam Fizza was also highly doubtful inasmuch as P. W. Muhammad Nawaz, the solitary witness of her recovery, was a chance witness, as on his own showing, lived five miles away from the place of recovery and he had come to the village Meharban Shah in the morning in the company of Lutaf Hussain Shah.

6. There is force in the submissions made by the defence counsel. It is noteworthy that in the F. I. R., Mst. Ghulam Fizza did not accuse Umra of rape, whereas at the trial she also roped him in for this offence. This would also appear to be unlikely that she would be allowed to go out of the house by her father at that hour of the night. It is in evidence that her father did not report the matter to the police in time. His explanation does not appear to be satisfactory and is not supported by any evidence. According to P. W. Muhammad Nawaz he was at a distance when Mst. Fizza made an alarm and she was in burgs. Further, that as he looked towards that side the accused had fled away. Whether he could have identified them from that distance was a doubtful matter. However, there is no identification parade held in this case. I also find that he father Ghulam Haider said that the place from where she was forcibly taken away was at a distance of 100 paces, from his house. It, therefore, seems improbable that at the time in the evening the accused would dare to take away Mst. Ghulam Fizza when everybody would be around. Although it was suggested to Mst. Ghulam Fizza that she had eloped wit Muhammad Hanif appellant, but she denied this suggestion. Her father also denied the suggestion that he did not report the matter to the police because she may not support him after the recovery. True, these suggestions have been denied, nevertheless the circumstances appearing i the evidence of this case, do lend support to the fact that she might have eloped. Giving the benefit of doubt to the appellants, their appeal is accepted and they are acquitted of the charges. Appeal accepted.