Ahmad Bakhsh complainant reported to the police- on 11th August, 1978 that his sister Mst. Sat Bharai has been missing since 4th August, 1978 and that he suspected Mst. Sattan wife of Noor Khokhar, Nasreen daughter of Amir Tarkhan and Janttan wife of Muhammad Lohar to be responsible for her abduction. A case was registered under section 363, P. P. C. Mst. Sat Bahari was recovered on 15th September, 1978. She was medically examined on 18th September, 1978. The lady doctor found that she had been subjected to sexual intercourse which took place about a month before the medical examination. Mst. Sat Baharai made a statement during investigation before a Magistrate under section 164, Cr. P. C. During which she accused Bakhsha and Noora appellants of committing rape with her on various occasions. After completion of the investigation the police sub--mitted challan against Bakhsha 30, Noora 28 appellants as well as Mst. Sardaran and Mst.
Nooran. The last two were acquitted by the trial Court but Bakhsha and Noora were convicted.
Bakhsha was convicted under section 366/376, P. P. C. And sentenced (o 7 years' R. I. And to a fine of Rs. 1,000 on each of the two counts. His brother Noora was convicted under section 376, P.P.C.
Only and sentenced to 7 years' R.I. And a fine of Rs. 1,VOG) In default of payment of fine the accused were to suffer further R. I. For six months. This is an appeal against the conviction and sentence.
2. Mst. Sat Bharai apart from making a statement under section 164, Cr. P. C. Also appeared as a witness for the prosecution. She stated that on the night of the occurrence she had gone to ease herself when she was accosted by Bakhsha appellant who forcibly abducted her and then kept her at his dera under the guard of Mst. Nooran, his brother's wife and committed rape with her repeatedly. At the dera she was subjected to rape also by Noora, a brother of Bakhsha aforementioned. Subsequently she was taken to Lahore by Bakhsha where she was kept for a month, where Bakhsha again committed rape with her. On her return to Sargodha she found some of the witnesses at the bus stand and raised alarm as a result of which her abductors ran away.
3. I have gone through the evidence with the help of the learned counsel. It appears that even though the F. I. R. Was recorded after a delay of seven days an abduction was suspected by Ahmad Bakhsh complainant. But the circumstances narrated by Mst. Sat Bharai are quite odd. She left her house when every body was asleep. Her absence was discovered after mid-night by her mother who woke up and told the complainant about it. Mst. Sat Bharai stated that she was accosted by Bakhsha when went foul or five Killas away from her house to ease herself. First of all she did not have to go too far to ease herself .As sufficient space was available for the purpose near her own house and secondly unless Bakhsha was aware of her plans, it is not likely that Bakhsha will be available in the fields exactly at the time when Mst. Sat Bharai had gone there: There was evidently a prior arrangement between Mst. Sat Bharai and the person with whom she left Mst. Sat Bharai further states as P. W. 6 that she lived in Lahore for one month during which time Bakhsha would be away for most of the day and visited her at night. During this period only woman folk were present in the house but strangely enough she did not complain of her plight and seems to have been living there peacefully. The circumstances of leaving her own house and her keeping quiet at Lahore when she was under no restraint can only show that Mst. Sat Bharai was a consenting party to the occurrence.
4. Shera Kalyar has appeared as D. W. I. According to his statement Mst. Sat Bharai had an affair with one Sibtain son of Muhammad Hussain. Physical Training Instructor and that Sibtain had brought her to him. Sher Kalyar also produced Mst. Sat Bharai for medical examination before lady doctor Nasreen (D. W. 2) on 29th August, 1978. . Mst. Sat Bharai in her statement under section 164 or before the Court makes no reference to Sher Kalyar or her visit to the lady doctor at Chiniot. The fact that this par of the story has been suppressed by Mst. Sat Bharai shows that she has a lot to conceal. The impression gathered by the learned counsel for the appel--lants that the womenfolk referred to in the F. I. R. Had helped Mst. Sat Bharai in elopement with said Sibtain is, therefore, not entirely without; basis. His conclusion that since women were involved in the elopement the police thought it fit to charge their menfolk with .The occurrence is also not without substance.
5. The case of the prosecution depends entirely on the solitary statement of Mst, Sat Bharai and as discussed above she was a consenting party therefore, the offences under section 366 or 376, P. P.
C. Cannot be established. I, therefore, accept this appeal, set aside the conviction and sentence and acquit the appellants of the charges against them. They shall be set at liberty if not wanted in any other case.