Muhammad Din, Allah Yar, Wali Muhammad, Nazar Muhammad Barkat Ali and Muhammad Fazil accused were tried by Ch. Muhammad Ashraf, Magistrate Section 30, Sahiwal, on the allegations that on 16th May 1975 they forcibly abducted Mst. Nawab Bibi, daughter of Muhammad Siddiq complainant, and thereafter Muhammad Din accused committed rape with her. By judgment dated 24-6-1976 Muhammad Din was convicted under sections 368 and 376 of the Pakistan Penal Code and sentenced to three years' R. I. On the former count and five years on the latter, with the direction that both the sentences shall run concurrently. The remaining accused were, however, acquitted of the charge of abduction. Muhammad Din convict has challenged his conviction and sentence through this appeal.
2. The brief facts of the prosecution case are that on 16th May 1975, at about noon time Mst. Nawab Bibi, aged about 14, was going to village Gamber to serve meals to her brothers. When she reached Bus-stand Gamber, Muhammad Din appellant and acquitted accused Yara and Wali Muhammad dragged her into a bus and took her to Sahiwal. Qasim and Abdur Razzaq who were present at the bus stand, informed Muhammad Siddiq complainant about the abduction of her daughter on the same day who reported the occurrence at Police Station, Nur Shah on 21st May 1975. The prosecution story goes that when the above-named three accused along with the abductee reached Sahiwal, acquitted accused Fazil, Nazar Muhammad and Barkat also joined them and then all of them took her to Lyallpur (now Faisalabad) in a bus. Leaving Muhammad Din with the abductee at Faisalabad, the remaining accused came back. Muhammad Din kept her in a house at Faisalabad for five or six days and committed rape with her. Five or six days later, Fazil and Barkat accused again went to Faisalabad and informed Muhammad Din appellant that other - accused persons had been arrested. Under threats of death they compelled Mst. Nawab Bibi to make a statement and obtained her thumb-impressions on some papers. Then they took her to village Wanlakha in a bus and kept her in the house of Wali Muhammad accused for 15/16 days where Muhammad Din appellant had been committing rape with her: On 10th June 1975 one Chan Pir Shah produced the abductee before Nazi; Ahmad, Head Constable. He also produced Muhammad Din accused on the same day and the Head Constable arrested him. Nazar Muhammad, Allah Yar and Wali Muhammad accused were arrested on 12th June 1975 and Barkat Ali and Muhammad Fazil on 15 June 1975. After the investiga--tion, the accused persons were challaned.
3. On 11th June 1975 Mst. Nawab Bibi was examined by lady Dr. Mrs. Qamar Saleem, W. M. O., D. H. Q.
Hospital, Sahiwal. No mark of injury was found on her person. The hymen was torn. In the opinion of the lady doctor, "she had undergone sexual penetration". Two vaginal swabs were sent to the Chemical Examiner for chemical analysis and his report is to the effect that the same were not stained with semen.
4. In support of its case, the prosecution examined nine witnesses in all, and its main reliance is on the evidence of Mst. Nawab Bibi (P. W. 2), Nura (P. W. 4) and Dr. Mrs. Qamar Saleem (P. W. 8). The prosecution also relied- on the Birth Entry (Exh. P. A.) of Mst. Nawab Bibi in order to show that at the time of abduction and rape she was below fourteen years of age.
5. The appellant pleaded not guilty to the charge, denied the prosecu--tion allegations against him and contended that he had been falsely implicated due to enmity with the maternal-uncle of the abductee. No evidence was led in defence.
6. Relying on the prosecution evidence against Muhammad Din appellant, the learned trial Magistrate convicted and sentenced him as mentioned above. He, however, observed that the case against the remaining accused was doubtful and consequently he acquitted them.
7. The learned counsel for the appellant contended that the prosecu--tion evidence having been rejected against the acquitted accused qua the charge of abduction, the same could not be relied upon against the appellant. He further submitted that uncorroborated testimony of Mst. Nawab Bibi on the charge of rape was not sufficient to warrant conviction under section 376, P. P. C. He further argued that the birth entry (Exh. P. A.) is a pure fabrication and that Mst. Nawab Bibi was a major girl and her evidence even if accepted, does not prove the commis--sion of offences under sections 366, and 376, P. P. C. Because according to her own showing she was taken from place to place in buses and tongas through thickly populated areas but she did not complain to any body that she had been abducted or raped.
8. I have gone through the record with the help of the learned counsel for the appellant. In the F. I. R.
The complainant gave the age of Mst. Nawab Bibi as 14-15. Years Her Birth Certificate Exh. P. A.
Placed on the record shows her date of birth as 22-7-1961. Yar Muhammad (P. W. 7), Secretary, Union Council No. 98, appeared in the trial Court with the relevant register. His cross- examination revealed certain facts which necessitated the produc--tion of the Register in this Court and I summoned him with the register which was seen by me. A photostat copy of the relevant page of the register has been placed on the record. It contains fourteen entries in all. After entry No. 3 there are entries numbered as 4-A and 4-B. 4-A pertains to one Arshad Bibi, daughter of Khadim Hussain and 4-B, which is lust on the line, pertains to Mst. Nawab Bibi, daughter of Siddiq, the alleged abductee in this case. The date of birth of both of them is given as 22-7-1961 and in column No. -14 against these entries .The words "twin--born" is written. Being the daughters of different fathers, they cannot be said to be twin-born. There is no entry bearing No. 4 on this page nor any other entry has been bifurcated like this, and apparently the entry relating to Mst. Nawab Bibi seems to have been inserted in the register later on obviously with a view to create evidence in. Support of the prosecution case.th
9. In the F. I. R. The complainant stated that he was informed by Qasim and Abdur Razzaq P. Ws.
That they had seen the appellant and acquitted accused Allah Yar taking away Mst. Nawab Bibi In the bus. At the trial Abdur Razzaq P. W. Was given up as having been won over and Qasim P. W. Did not support the prosecution. So far as the charge of abduction is concerned, we are left with the statement of Mst. Nawab Bibi (P. W. 2) and Nura (P. W. 4). According to the prosecution, the abduction took place at Bus-stand, Gamber. Nura (P. W. 4) is a resident of Chak No. 735-A/9-L. He stated that at the relevant time he saw the' appellant and the acquitted accused with the abductee at Chowk Arifwala, Sahiwal. He further stated that he knew all the accused as well as the abductee. He was unable to tell the parentage of Muhammad Din appellant and also expressed his inability to tell the number of his brothers and sisters. He also could not tell any thing about the sisters of Mst. Nawab Bibi. He is a chance witness -and his statement was recorded by the police on 14-6-1975, i.e. About a month after the alleged abduction. In the circumstances, no reliance can be placed on his evidence.
10. At the trial, in cross-examination lest. Nawab Bibi stated that the abductors bad concealed themselves in the plants at a distance of one square from the bus-stand when they caught hold of her whereas in her statement before the police (Exh. D. A.) with which she was duly confronted, she had stated that the accused persons had caught hold of her at Gamber Bus-stand. She further stated that she had not seen Qasim and Abdur Razzaq P. Ws. At the bus-stand. In examination in-- chief she gave out that she was taken to Sahiwal in a bus but in cross examination she deposed that she was carried in a taxi. She again took a sommersault and stated that she did not know whether it was a taxi o bus. According to her, from Gamber she was taken to Sahiwal and after staying for some time there she was taken to Faisalabad in a bus. She kept at Faisalabad for five or six days.' According to her, forty or fifty passengers had boarded the bus on the way. From Faisalabad she was taken to Wanlakha in a bus. It is in her statement that she did no raise any alarm either on the way or at bus-stand, Faisalabad. If she had been forcibly abducted as alleged by the prosecution she must have raised alarm to attract other persons for her rescue. The prosecution ha failed to prove that she was below sixteen years of age at the relevant time and the evidence indicates that it was a case of elopement, an not of abduction. If a grown-up girl accompanies the accused from plea to place without any complaint there is presumption of consent. The conviction under section 366, P. P. C. Is, therefore, unsustainable.
11. On the charge of rape, there is the solitary statement of Mst. Nawab Bibi. Her evidence on the charge of abduction has already been discarded. The medical evidence does not corroborate her testimony. The lady doctor who examined her did not find any mark of injury on her private part or other parts of her body. The hymen was torn but there is nothing on the record to show whether the tear was fresh or old. The vaginal swabs received negative opinion from the Chemical Examiner. I am, therefore, of the view that the prosecution has also not been able to prove the charge of rape beyond a reasonable doubt.
12. For all the foregoing reasons, I allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charges. He shall be set at liberty forthwith if not required to be detained in any other case.