' AFTAB HUSSAIN, C J.- Habibullah and Bashir were convicted under section 11 of the Offence of Zina (Enforcemeat of Hudood) Ordinance, 1979 for the abduction of Mst. Sakina, P.W. 9 and each of them was sentenced to life imprisonment, 10 stripes and Rs, 1,000 fine (in default one year R. I.).
Habibullah in addition was convicted under section 10 (3) of the Ordinance and was sentenced to ten years' R. I. And 30 stripes.
2. Hence, this appeal
3. The prosecution version in the First Information Report is that Mst. Sakina is Ibughter of Allah Diwaya who died abou 15 to 20 years ago and her mother re-married and gave the custody of the child to Allah Wasaya, P.W.4, a first cousin of Allah Diwaya deceased. Habibullah and Bashir Ahmad both real brothers are the sons of the maternal-uncle of Allah Wasaya. Habibullah used to visit the house of Allah Wasaya and developed illicit liaison with Mst. Sakina who was less than 14 years of age. During the night between 29th and 30th of May, 1981, Mst. Sakina disappeared from the house.
The complainant Allah Wasaya searched her and ultimately was informed by Shah Mohammad, P.
W. 5 and Mohammad Aslam. P.W. 6 that they had seen Mst. Sakina going with Habibullah appellant in a bus towards Bahawalpur.
4. The First Information Report of this occurrence was recorded on the 1st of June, 1981 at about 10- 30 p. m. In Police Station, Kanpur.
5. The Police came to know on the 3rd of June, 1981 that Mst. Sakina was in Darul Aman, Bahawalpur and had been sent there by order of a Magistrate. The Police recovered Mst. Sakina from there and got her medically examined by Dr. Munira Raoof, P.W. 1, who stated that her hymen was torn completely. Tags were old and healed. Vagina admitted the passage of two fingers loose. She could not obtain the vaginal swa bs since she was having menstrual bleeding.
6. After their arrest, the two appellants were medically examined. It was said about Habibullah by Dr. Mohammad Aftab Iqbal, P.W.5, that there was nothing to show that he was unable to perform sexual intercourse. Some wound was found on the leg of Bashir.
7. Allah Wasaya, P.W. 4 supported the story given in the First Information Report. He admitted that he was first cousin of Allah Diwaya father of Mst. Sakina. He denied- that Mst. Sakina was in the custody of Allah Wasaya brother of Allah Diwaya who had handed her over to Habibullah after receiving a consideration of Rs, 10,000, and he had promised to Habibullah that he would perform his Nikah ceremony after settling the dispute with the complainant who was not agreeable to this marriage.
8. Shah Mohammad claimed to have seen both the appellants accompanying Mst. Sakina. He is a chance witness since he stated that his tractor was out of order and he was getting it repaired at the Workshop of Akbar in Khanpur Town near the Bus Adda Khanpur. He denied that he entertained any grudge towards the appellants.
9. Mohammad Aslam, P.W. 6, made a similar statement about seeing Mst. Sakina acompanying the two appellants and boarding the bus for Bahawalpur. He is a resident of the same Village as Allah Wasaya. He has not explained his presence at Adda, Khanpur and thus he is also a chance witness.
10. It is not necessary to refer to the evidence of I3arkat 'Ali, P W 7, His statement is based on hearsay.
11. Mst. Sakina, P.W. 9 stated that she was sleeping in her house at about mid night when both the appellants tried to tie her mouth with some cloth. They threatened her with a knife for which reason she could not raise an alarm. They lifted her and took her to their cycle which was parked at a short distance from the house. They then seated her on the carrier of the cycle behind them. Bashir paddled the cycle while Habibullah sat on its front rod. They took her to the residential Kothi of Habibullah where he committed Zina-bil-Jabr with her while Bashir left their Company. Habibullah then took her out of the Kothi. Bashir Ahmad also arrived there. They then boarded the bus and took her to Bahawalpur. There they took her to the house of some Advocate from where she was taken to the Court premises and was produced before a Magistrate who recorded her statement, whereafter, he sent her to Darul Aman. The Police recovered her from Darul Aman and got her examined medically.
12. Abdul Sattar, Secretary, Union Council, P. W. 8 proved a copy of the birth certificate of Mst.
Sakina. He stated that the date of birth as entered in the register was 12-6-1967 but the entry was made on the 12th of March, 1970.
13. The last witness is the Investigating Officer, Abdul Hamid, P. W.
10.
14. Bashir denied his participation in this affair and merely stated that he was involved on account of suspicion. Habibullah denied the charge and in answer to the question, whether he had taken Mst. Sakina to Bahawalpur, he stated that it was incorrect ; however, he had gone to Bahawalpur after his Nikah was performed with Mst. Sakina. He was asked about the story of his taking Mst.
Sakina to a Magistrate. He answered as follows - "We were arrested from Khanpur by the Police and were taken to Bahawalpur where Mst. Sakina was produced before the Magistrate by the Police itself and she was sent to Darul Aman."
' In answer to question No, 6, as to why this case against him, he said :- "Mst. Sakina lived with Allah Bachaya brother of Allah Diwaya deceased. Allah Bachaya gave Mst.
Sakina to me. But Allah Wasaya complainant did not agree to marriage and therefore he brought out a false case against me. I am a duly wedded husband of Mst. Sakina."
15. The first question is whether the story of Mst. Sakina about her abduction by use of force is correct. We are of the view that the story-given by her has the germs of contradictions. It is stated that she was lifted from her bed by these two persons who threatened her with knife and yet instead of securing that she got no opportunity to flee she was made to sit on the carrier of the cycle behind them, while Habibullah sat on the front rod. If any force was used, in the natural course of events, Mst. Sakina should have been made to sit on the front rod and Habibullah on the carrier of the cycle. Her subsequent conduct in going quietly and travelling in a bus with the appellant also proves that she was not being taken by them she was accompanying them with her own consent. In these circumstances, no presumption can be drawn her abduction, kidnapping or being taken away or, enticed away in the absence of independent evidence to prove the ingredients section 11 or 16.
16. The story as given by two chance witnesses namely, P. W. 5, Shah Muhammad and P. W. 6, Muhammad Aslam is not convincing but even that story does not advance the prosecution case and cannot prove the charge under section 11 or even under section 16 of the Ordinance.
17. Mst. Sakina is said to be less than 14 years of age on the date of occurrence and this is proved by the birth entry which was proved by P. W. 8, Abdul Sattar. This date is contrary to the version given by Allah Wasaya .Himself who stated that the father of Mst. Sakina had died 15/20 years before which means that Mst. Sakina could not be by any stretch of imagination, 14 years old. The birth entry is also doubtful since it was made in 1970 regarding a birth of 1967 and there is no explanation for this late entry.
18. In these circumstances, particularly when Mst. Sakina was found on medical examination to be a puberty who must have had sexual intercourse even before the date of the alleged commission of offence. The possibility cannot be excluded that she might be over 16 years of age in which case the charge of kidnapping cannot be sustained only on the basis of her age.
19. If it is assumed that Mst. Sakina was about 14 only, she cannot be said to have been removed from guardianship of a guardian. She is stated to have been living with Allah Wasaya who is not related to her within the prohibited degree, but is the first cousin of her father. He is not covered by the list of guardians in para. 355 of Muhammadan Law by D. F. Mulla (1955 Edition). He cannot be a guardian unless he was appointed so by the District Judge. No case of abduction, or kidnapping is therefore, made out. The appellants are entitled to be acquitted of that charge.
20. The next question is whether there is any evidence against Habibullah as regards the charge of Zina. If Zina was even committed by Habibullah on Mst. Sakina, for the reasons already given. It is difficult to believe that it was Zina-bil-Jabr. However, there is no evidence except that of Mst. Sakina involving Habibullah. Habibullah had no doubt claimed that she was his wife but he nowhere said that he had ever lived with her as a husband. It was for the prosecution to prove by satisfactory evidence that, he had really committed Zina with Mst. Sakina.
21. According to established law, Mst. Sakina's evidence would require corroboration since she had not only tried to involve the appellant in a false case of abduction but she also appears to be a woman of loose character. Though she was medically examined within for days of the alleged abduction. It was found by the lady Doctor that the vagina was completely torn and old taggs were there which were healed. The time between alleged offence and the medical examination is too short to allow the healing if the intercourse was a recent affair.
22. The corroboration could have been obtained if the vaginal swabs had been taken and had been proved to be stained with semens but that evidence is also not forthcoming. The benefit of doubt shall have to be given to Habibullah.
23. The appeal is therefore, accepted, the conviction and sentences of both the appellants are set aside and they are acquitted. They shall be released forthwith if not required in any other case.