1968 P Cr (PLP)

2. The prosecution case is that on the 9th of May 1961, a little after sunset Mst. Zenab and Mst. Karam Bhari, the wives respectively of Abdul and Sher Muhammad brothers of Sakhi appellant came to the house of her neighbour Mst. Nikko P. W. in Chak No. 44/NB, Tahsil Vehari and took away her daughter Mst. Hanifan along with them on the pretext of easing themselves in the fields. At that time Yaqub P. W., the father of Mst. Hanifan, was away from his house along with Allah Bakhsh P. W., his wife's brother for consultation with Hassan P. W. regarding the arrangements necessary in connection with the marriage of Mst. Hanifan with Abdus Sattar, a nephew of Allah Bakhsh P. W. But Hassan not being at the house, they returned to the house of Yaqub P. W. Mst. Nikko told them on their return that Mst. Hanifan had been taken away by Mst. Zenab and Mst. Karam Bhari and that when after waiting for sometime she had contacted these women to enquire about Mst. Hanifan's whereabouts they had told her that Mst. Hanifan had gone back home after relieving herself. Allah Bakhsh and Yaqub P. Ws. thereupon set out in search of Mst. Hanifan and meeting Hassan P. W. and Walloo learnt from them that they had seen Mst. Hanifan being carried away on a mare by Sakhi appellant follow ed by Rafi appellant on foot. Thereafter Allah Bakhsh and Yaqub approached Neka the father of Sakhi and Rafi accused for the return of Mst. Hanifan. He first promised to get the girl returned to them but when these P. Ws. found after having several meetings with him on the appointed dates that he was merely putting them off without any intention of getting Mst. Hanifan restored to them, Allah Bakhsh P. W. meeting Ch. Jamal Din, A. S. I., in Chak No. 24, on the 21st of May 1961, made the statement (Exh. P. A) to him, on the basis of which the formal F. I. R. (Exh. P. A/1), was later drawn up by a head constable. The A. S. I. investigated the case and on the 15th of June 196 11, he found the appellants going along in a tonga with Mst. Hanifan. He took all the three in his custody.

3. Mst. Hanifan P. W. has alleged that when she had reached the fields with Mst. Zenab and Mst. Karam Bhari, the two appellants, who were already present there, Sakhi armed with a pistol and Rafi armed with a dang and a knife, forcibly put her on a mare and Sakhi sitting on the mare in front of her and Rafi sitting behind her rode away to Garhal. Near behni of Haji Sikandar Hassan and Walloo P. Ws. met them. They asked Sakhi and Rafi as to where they were taking Mst. Hanifan but they were told by the appellants to keep quiet on pain of being killed. At Garhal she was kept at the house of one Sultan for four days and Sakhi accused raped her there. From Garhal she was taken to Vehari where they contacted Mumtaz petition- writer (accused since, discharged) for drafting an application from her that she was a major and wanted to marry Sakhi. The petition‑writer advised them to get her X‑rayed for her age. She was thereafter brought to Multan where she was forced by the appellants to thumb‑mark some papers meant to be produced in a Court and get her medically examined. She admitted in the Court of a Magistrate the correctness of the contents of applica tion to the effect that she wanted to marry Sakhi. But this was done by her under coercion. From Multan she was taken by the appellants to Pakpattan. From there she was taken to Chak No. 37 where she was kept for 4/5 days and Sakhi again raped her there. From this chak she was again taken to Pakpattan by the appellants and near the octroi post they came across the police party which included her father, and the appellants were arrested by the police and she was taken to Vehari where a lady doctor examined her.

4. The appellants pleaded not guilty and made a statement' to the effect that Mst. Hanifan had been betrothed to Sakhi appellant in exchange for the marriage of Mst. Saini, a cousin of Sakhi with Hussain, a cousin of Mst. Hanifan. And that Mst. Saini died after the marriage and the complainant party wanted another girl in marriage from the appellants and when they refused to do so the complainant party got against them and that Mst. Hanifan came away to Sakhi appellant of her own accord. She gave an application to D. M., Multan, on the 10th of May 1961, and also married Sakhi appellant on the same day. Sakhi appellant further stated he had got a decree from the Civil Court (restitution of conjugal rights) against Mst. Hanifan and that Mst. Hanifan had filed a complaint against Yaqub her father in the Court of Sh. Rashid Ahmad at Multan on the 12th of May 1961, wherein she had admitted her nikah with him.

5. The appellants produced seven witnesses in defence besides producing several certified copies of the documents referred to in the statement of Sakhi appellant.

6. I am not satisfied that any case under section 366, P. P. C. has been made out against the appellants or that any offence e under section 376, P. P. C. has been brought home to Sakhi appellant.

7. It is noteworthy that Mst. Hanifan gave her age as 20 years while making her statement and none of the witnesses has alleged that she was less than sixteen years when she was allegedly taken away. In her case what has, therefore, to be determined is whether she had been forcibly or deceitfully taken away by the appellants. I am not inclined to set any store by the account of the circumstances under which Mst. Hanifan left her house given by the prosecution witnesses. For one thing, they are all highly interested persons. Yaqub P. W. is the father of the girl and Mst. Nikko is her mother. Allah Bakhsh P. W. is the maternal uncle of the girl. Hassan P. W., who claims to have seen the girl being carried off by the appellants on a mare is also a close relation of her parents. Secondly, if, as is alleged by these P. Ws., Mst. Hanifan had thus been forcibly taken away it is not intelligible why no report was lodged with the police till the 21st of May 1961. Allah Bakhsh P. W. states that ever since the disappearance of Mst. Hanifan he had been living and moving about with Yaqub, the father of the girl and yet did not know that Yaqub had filed a complaint about the occurrence on the 11th of May 1961. It is significant that not only a different version of the occurrence is given in that complaint, but also eight persons including Mst. Zenab and Mst. Karam Bhari were mentioned therein as responsible for the abduction of Mst. Hanifan one day earlier, that is on the 10th of May 1961. While according to the version given in Court Allah Bakhsh and Yaqub P. Ws. were not in the house when Mst. Zenab and Mst. Karam Bhari took away Mst. Hanifan on the pretext of easing them selves, according to the version given in the complaint (Exh. D. A/1) complainant Muhammad Yaqub P. W. was not only present at the house at that time, he was even present when Mst. Hanifan was forcibly taken away on a mare by the appel lants and their four companions. There is no mention in the complaint (Exh. D. A/1) of Allah Bakhsh P. W. at all. Hassan P. W. is described at the trial as having only met the appellants near the behni of Sikander and as having later informed Yaqub p; W. and Allah Bakhsh P. W. on meeting them, about his and Walloo's having seen the appellants carrying away Mst. Hanifan, but according to the version given in the complaint, Hassan P. W. along with Yaqub P. W. and Walloo and one Noor Samad was actually present at the time Mst. Hanifan was forcibly taken away by the two appellants and their four companions despite the entreaties and remonstrances of Yaqub P. W. and Hassan P. W. etc.

8. The prosecution witnesses do not impress me as truthful persons. Hassan P. W. in his examination‑in‑chief said that he and Walloo went to Chak No. 44/W.B. after seeing the appellants carrying off Mst. Hanifan and that after meeting Yaqub and Allah Bakhsh P. Ws. there informed them about what they had seen. Allah Bakhsh and Yaqub P. Ws. stated that they had met Hassan and Walloo after they had come out of their village viz., Chak No. 44/WB. But this is not all. Hassan P. W. makes a statement in his cross‑examination contrary to what he has stated in his examination‑in‑chief. In his cross‑examination he stated that he did not go to Yaqub after coming across the appellants but had gone away to his own behni. It is further significant that Walloo has not come forward in the witness‑box to corroborate Hassan P. W.

9. It is idle to notice all the discrepancies in the statements of different witnesses, for they are numerous and it is unnecessary to do so as the case can be disposed of on its broad features. But now that I am examining the evidence of Hassan P. W. 1 might as well refer to one other circumstance appearing in his evidence. In his earlier statement made under section 164 before the Resident Magistrate he had stated that the appellants had passed him and his companion at a distance of 11 squares. Cons cious of the inherent flaw in this part of his statement during the trial this P. W. denied that the accused had passed him at such a distance and explained that what he meant was that the appellants had met him at a distance of 11 squares from his behni.

10. The fact that Mst. Hanifan despite appearing before an Oath Commissioner and before Magistrates never complained to them that she had been abducted by the applicants shows that she had accompanied the appellants willingly as contended by him. Nor is there any satisfactory evidence that she was subjected to sexual intercourse against her will or without her consent. Lady Doctor S. Z. Khanam (P. W. 11), who examined her on the 16th of June 1961, clearly stated that she did not find any injury or marks of violence on any part of her body. She also expressed the opinion, after finding that her vaginal orifice admitted two fingers easily that she was used to sexual intercourse for about two years.

11. In the circumstances, I cannot reject the version given by the appellants out of hand as untenable. It is not improbable that Mst. Hanifan was not leading a chaste life and had of her own accord accompanied Sakhi appellant as alleged by him and had neither been abducted nor raped.

12. The result is I accept the appeal and setting aside their convictions and sentences acquit the appellants. Appeal accepted.