Golay Khan, Muhammad Hussain and Ghulam Nabi were tried by Sh. Saraj Din, Magistrate section 30 (Judi.), Faisalabad, under section 366/ 376/368, P. P. C. For abducting Mst. Surraya P: W. In order that she may be forced or seduced to illicit intercourse and at different times and different places committing rape with her. The learned trial Magistrate, on 4th November, 1980 convicted Muhammad Hussain and Golay Khan under sections 366, P. P. C. And 376', P. P. C. And sentenced both the accused to undergo R. I. For five years each under the former section and to five years' R. I.
Each under the latter section and convicted Ghulam Nabi under section 368, P. P. C. And sentenced him to three years' R. I. Thereunder. The sentences of Muhammad Hussain and Golay Khan convicts were ordered to run consecutively. The appeal (Cr. A. 1191/1980) preferred by Golay Khan convict and the appeal (Cr. A. 1225/ 1980) preferred by Muhammad Hussain convict against their convictions and sentences, are both now before me for disposal.
2. The brief facts of the case are that Mst. Surraya P. W.
4. Who was aged twenty years and married to one Imtiaz Ali, came to the house of her father, Fazal Din complainant P. W. 1, who was telephone operator in Zeenat Textile Mills, Faisalabad, and resided in quarter No. 5, line No. 1 of the said Mills.
On 18th March, 1973 Fazal Din P. W. 1 went on duty and his wife and son were away to. Chak No. 61/RB to attend a marriage. Mst. Surraya P. W. 4, Mst. Siddiqan P. W. 2 and Mst. Sabran P. W. 3, the three daughters of the complainant, were present in the house. At about noon time, Muhammad Hussain accused, who was then working as constable of Excise and Custom Department in Zeenat Textile Mills, came in a rickshaw, alongwith Ghulam Nabi and Golay Khan co-accused, and trespassed into the complainant's house and forcibly dragged Mst. Surraya P. W. 4 out of the house, forced her into the rickshaw and then sped away with her. Mst. Siddiqan P. W. 2 and Mst. Sabran P. W. 3 went to the Mills and informed their father Fazal Din P. W. 1 about the incident. Fazal Din P. W. 1 then tried to secure the restoration of his daughter, but was put off by lame excuses made by Muhammad Hussain accused constable. He also took Muhammad Bakhsh P. P. P. Chairman in Pan--chayat party to secure the restoration of his daughter from Muhammad Hussain accused, but in vain. One 5th April, 1973 Fazal Din P. W. 1 lodged F. I. R. Exh. P A at Police Station Nishatabad, Lyallpur, about the abduction of his daughter, which vas recorded by Muhammad Latif M. H. C. P. W. 6 at 1-30 p. m.
3. On 29th April,. 1973 the abductee Mst. Surraya P. W. 4, was recovered by the police from the quarter of Ghulam Nabi accused situated in D-type Colony, Faisalabad. On lorh May 1973 Muhammad Hussain accused was arrested by Ghulam Muhammad S. 1. P. W.
8. The two other accused were arrested some time later, the dates of which are not evident from the record. On 21st May, 1973 the statement of Mst. Surraya Bibi was recorded by a Magistrate under section 164, Cr. P.
C. On 22nd May, 1973, Mst. Surraya P. W. 4 was sent for medical examina--tion and was examined by Lady Doctor Mrs. Qamar, who apparently did not find any clear indication of rape being committed on her person, as she was already a married lady and had been submitted for medical examination twenty-two days after her recovery. On 10th June, 1973 Mst. Surraya P. W. 4 .Pointed out the house of Ghulam Nabi accused situated in D-type Colony, Faisalabad, where she had been earlier confin--ed. Yaqoob P. W. 5 was a witness to the said identification of the house by the abductee.
4 After completing the necessary investigation, the challan against the three accused was sent up.
5. At the trial, the prosecution produced Fazal Din P. W. 1, Mst. Siddiqan P. W. 2, Mst. Sabran P. W. 3, Mst. Surraya P. W. 4 and Yaqoob P. W. 5 to prove the abduction and the house where she had been wrong--fully confined and Mst. Surraya p. W. 4 and Mst. Ghulam Jannat. Lady Dispenser P. W. 6 to prove the rape committed on the abductee. All the three accused denied the accusations levelled against them. Muhammad Hussain accused in his statement under section 342, Cr. P. C. Stated that as he had earlier complained against the conduct of Fazal Din P. W. 1 to his officers, as the said Fazal Din P. W. Tried to illegally remove cloth from the Mills, so he was falsely involved The remaining two accused imputed their involvement due to enmity.
6. The learned trial Judge relying upon the testimony of Fazal Din P. W. 1, Mst. Siddiqan P. W. 2, Mst.
Sabran P. W. 3, Mst. Surraya P. W. 4, Yaqoob P. W. 5 and Mst. Ghulam Jannat Lady Dispenser P. W. 6, convicted and sentenced all the three accused, as stated in para. 1 above.
7. I have heard the arguments of the learned counsel for the two appellants and the State and have also perused the record. It appears that there is no appeal preferred by Ghulam Nabi accused. From the testi--mony of Fazal Din P. W. 1, Mst. Siddiqan P. W. 2, Mst. Sabran P. W. 3 and Mst.
Surraya Bibi P. W. 4 it appears that Muhammad Hussain and Golay Khan appellants came to the quarter of Fazal Din P. W. 1 in a rickshaw and forcibly took away Mst. Surraya P. W. 4 in the said rick-- shaw, notwithstanding the cries and protest of the said abductee and her two sisters who were then present. However. Notwithstanding this some--what consistent evidence, the late filing of F. I.
R. Exh. P. A. By ,the father of the abductee, namely, Fazal Din P. W. 1, is not adequately explained. In the F. I. R. Fazal Din P. W. l submitted that he tried to recover his daughter from Muhammad Hussain appellant who kept making promises but did not return his daughter and he also refers to the fact that he took one Muhammad Bakhsh, Chairman of P. P. P. In Panchayat for the said recovery, but at the trial he did not state that he took any panchayat, but rather stated that Muhammad Hussain and Golay Khan, appellants, brought Panchayat to him, in order to plead their innocence and that he had been making some efforts to secure the restoration of his daughter. Muhammad Bakhsh, Chairman P. P. P. Was not produced at the trial to give evidence. It seems strange that Fazal Din P.
W. 1, as a father, knowing that his daughter was married and abducted by Muhammad Hussain and Golay Khan, appellants, did not straightaway lodge a report with the police, but kept on pressing Muhammad Hussain, appellant, for the return of his daughter. The late filing of the F. I. R in the instant case does show that Fazal Din P. W. 1 was not aware of the true facts surrounding the disappearance of his daughter and that the story of abduc--tion was concocted, perhaps after Mst. Surraya P. W. 4 was recovered, though her recovery is shown to be twenty-four days after the lodgement of the F. I. R. As regards the recovery of Mst. Surraya P. W. 4 and rape committed on her, the only evidence is that of abductee herself. Fazal Din P. W. 1 submits that his daughter, Mst.
Surraya P. W. 4 was recovered through the intervention of the police from the quarter of Ghulam Nabi, appellant, situated in D-type Colony, Faisalabad. Muhammad Hayat A. S. I., P. W. 7, who recorded the F. I. R., and Ghulam Muhammad, S. I. P. W.
8. Who conducted the investigation-, do not mention anything in their evidence about the mode, manner or place of recovery of Mst. Sutraya P.
W. 4, abductee. In cross-examination, Fazal Din P. W. 1 admitted that his daughter Mst. Surraya P. W.
4 returned from the house of Ghulam Nabi situated in D-type Colony of her own accord. Mst.
Siddiqan P. W. 2 in cross-examination also referred to the fact that her sister had returned back to her house 10/12 days after her abduction. The recovery of Mst. Surraya abductee P. W. 4 on 29th April, 1973 at the instance of the police, therefore does not stand clearly established from the evidence on the record. It appears that she returned of her own accord from the house of Ghulam Nabi, appellant, and there--after perhaps the F. I. R Exh. P. A. Was lodged by Fazal Din P. W.
1. As regards the evidence of rape, if any, committed on Mst. Surraya P. W. 4, there is only the evidence of the said abductee herself. On her own showing, she was first taken to the house of Golay Khan, appellant, where she was raped by Muhammad Hussain and Golay Khan, appellants. There she stayed for a month, whereafter she was brought to the house of Ghulam Nabi, co-accused, where she was kept for 2/3 days, where she was also raped by Muhammad Hussain and Golay Khan, appellants. There--after she was taken to Jaranwala, where the two appellants tried to secure a statement from her, which she refused to give. She was then taken to the house of Ghulam Nabi, co-accused, in D-type Colony, from where she was recovered by her father and two other persons.
She does not state that during all this period she was kept confined in a room duly guarded. It is surprising that during all this period she did not shout or scream or attempt to run away or inform the inmates of the houses where she was confined or neighbours around her that she was the victim of abduction or rape. Her conduct and behaviour shows that she was a consenting party. In these circumstances, without independent corrobora--tion, her story as regards rape being committed on her cannot be implicitly believed. The late filing of the F. I. R. The admission made by Fazal Din P, W. 1 that Mst. Surraya P. W. 4 returned of her own accord to his house, all seem to suggest that Mst. Surraya P. W. 4 had some sought of liaison with Muhammad Hussain, appellant, which was perhaps known to her father Fazal Din P. W. 1, who did not much care about the disappear--ance of her daughter and that after certain events took place after the return of the girl, which are not fathomable or discernible from the record, the matter could not be allowed to pass unnoticed and a late report had to be lodged with the police about her abduction and rape.
The fact that Mst. Surraya abductee P. W. 4 was recovered on 29th April, 1973 but not sent for medical examination till 22nd May, 1973 itself shows that the police were not very satisfied about her story of rape against her consent. The fact that they dragged their feet to complete the legal formalities of the case shows that they did not subscribe to the truth of the abductee's case regarding rape against her consent. In view of the conduct of Mst. Surraya abductee, her forcible abduction and rape without consent, cannot be implicitly accepted, on the basis of the evidence on the record. The appellants are entitled to the benefit of doubt.
8. For the foregoing reasons, this appeal is accepted and conviction and sentences of Muhammad Hussain and Golay Khan, appellants, are hereby set aside. Muhammad Hussain appellant is m jail.
He is ordered to be set at liberty forthwith, if not required in any other case. Golay Khan, appellant, is on bail. His bail bond shall stand discharged.