' ZAHOORUL HAQ, J.-These are two connected appeals against the judgment of Sessions Judge, Mianwali dated 6-3-1982 by which the appellant Abaidullah was convicted under section 10 (2) of Ordinance VII of 1979 and sentenced to suffer rigorous imprisonment for 5 years and 15 stripes and to pay a fine of Rs, 1,000 or in default of the same to further suffer one year's R.I. By the same judgment the appellant Abaidullah and 5 others co-accused who were charged with the offence of forcible abduction under section 11 were acquitted of that charge while 9 other co-accused were acquitted of the charge under section 10 of the same Ordinance. The appellant Abaidullah in Cr.
Appeal No, 32/1 of 1982 has appealed against his conviction. In Cr. Appeal No, 45/1 of 1982 the appellant Gul Amir Khan, who was the complainant in the case had sought for reversal of acquittal against all the acquitted 10 accused and for enhancement of sAnten against Abaidullah but on 19- 5-1982 the learned counsel Malik Rab Nawaz Noon withdrew his appeal against the rest of the co- accused and only pressed for enhancement of sentence against Abaidullah and consequently this appeal was dismissed in limine against the other respondents and admitted only to the extent of enhancement of sentence. The State has not filed any acquitted appeal. The judgment of acquittal against the 10 co-accused thus stands concluded. These two appeals were disposed of together on 6-6-1982 by a short order. These are the reasons for that order.
2. The relevant facts are that on 2-9-1981 P.W. 5 Gul Amir Khan lodged an F. I. R. At P. S. Moosa Khel under sections 148/149 and 307, P.P.C. As well as under sections 10 and 11 of Ordinance VII of 1979 alleging that he was Zamindar and two years back he had betrothed his daughter Mst. Surat Khatun aged 18 years with Abaidullah s/o Bacha Kin, but on account of family dispute the complainant broke off that engagement. Bacha Kin demanded the fulfilment of the engagement several times but the complainant refused. On the day of complaint at about 8-00 a.m. The complainant was present at his house with one Ghazi Khan and Mohammad Khan, when his daughters Mst. Surat Khatun and Nasim Khatun went out to fetch water from the tube-well ; at this time the daughter raised cries and the complainant and his companions saw that Bacha Kin Khan, Abaidullah Khan, Habibullah, Amanullah and Inayat Khan were present at the tube-well with guns and Abaidullah had caught hold of Mst. Surat Khatun at her hairs and were dragging her out. The complainant party went after raising hue and cries and thereupon the accused party beat Mst.
Surat Khatun and kept hcr in front and started firing at the complainant party. Abaidullah fired from his gun and one pellet hit the complainant on his right shoulder near elbow. All the accused have abducted complainant's daughter under cover of fire. Saifullah is also involved in the conspiracy of abduction. Thus the F.I.R. Concluded.
3. The case was investigated by Ch. Talib Ali, S. H.
0. (P.W. 9) who arrested Ubaidullah appellant on 8-9-1981 and recovered Mst. Surat Khatun from him from District Council compound at Mianwali. He got Mst. Surat Khatun medically examined from lady doctor Jameela Lodhi (P.W. 1) on 10-9-1981, and also got Abaidullah appellant examined by Doctor Ghazanfarullah (P. W. 4) in respect of potency. He also got recorded the statement of Mst. Surat Khatun under section 164, Cr. P. C., and made further investigations into the matter and recovered guns from the appellant as well as other co-accused, but we are not concerned with the same. He completed the investigation and challaned the accused to Court and they were accordingly charged under section 148, P.P.C., section 11 of Ordinance No, VII of 1979 read with section 149, P.P.C. And under section 10 of Ordinance No, VII of 1979.
4. The prosecution had examined 9 witnesses in support of the prosecution case and thereafter the accused was questioned under section 342, Cr. P. C. Since the case of forcible abduction has been disbelieved, therefore, it could not be necessary to look into the evidence of the complainant Gut Mir Khan (P.W. 5), who is the father of the victim and who received pellet injuries and of Mst. Nasim Khatun (P. W. 7), who is sister of the victim, as they are witnesses in respect of abduction only, and their evidence is not relevant for this appeal. P. W. 2 Amir Abdullah had merely taken the complainant Gul Mir Khan to the doctor for examination of the injury and since the injury has been disbelieved, therefore his statement is also not relevant for purposes of this appeal.
5. Lady Doctor Jameela Lodhi had examined victim Mst. Surat Khatun on 10-9-1981 and her observations are as under :-
(1) No suspicious stains were present on her clothes.
(2) No marks of violence were present on her body.
(3) Two vaginal swa bs, which were blood-stained, were taken, sealed in a bottle and handed over to the police for being taken to the Chemical Examiner, Lahore for examination.
(4) Her hymen was found torn, the tears were in healing stage and it admitted only two fingers.
There was laceration 1/4" x1/6" on the mid-line posteriorly on the vulva near the orifice or vagina, which bleeded to touch. She was tender to examination i,e, felt pain.
6. In the opinion of the doctor she had been subjected to rape within 8 to 9 days. Medical Report was Exh. PA and signed by. In cross-examination Lady Doctor Jameela Lodhi stated that healing process starts within 2 to 3 days and completes within 10 days. She did not agree with the suggestion that it completes within 5/6 days. 1n case of mass violence posterior cornruissure is usually torn but in the case of Mst. Surat Khatun she had only found it lacerated, not torn. She also admitted that the hymen was not loose and lax. In her opinion there were no consecutive repetitions of sexual act or mass violence. She also stated that the sexual intercourse was done with her within 2/3 days of the examination.
7. P. W. 4 Dr. Ghazanfarullah stated that he had examined Abaidullah on 16-9-1981 and did not find any defect in his sexual potency. This doctor had also examined the complainant Gul Amir and had found a fire-arm injury on left upper arm and the other injury was found to be an exit injury without any blackening. This however, did not correspond with the injuries in the F.I.R. Where it was stated that the injury was on the left arm and nature of injury was reserved but later on it was declared to have been inflicted by a fire-arm. These injuries were consequently disbelieved by the learned trial Court and rightly so.
8. P. W. 6 Mst. Surat Khatun is the most important witness in respect of the allegation of Zina. She had stated she was abducted by Abaidullah, Habibullah, Hameedullah, Amanullah, Inayatuilah and Saifullah accused, while Bacha Kin accused was also present there. Her sister Mst. Naseem was also there and they had raised the alarm and her father and two other P.Ws. Were attracted, but they were threatened by the accused to keep away. Abaidullah had fired at the spot and hit her father. The accused had taken her away to the Dera of Bacha Kin. There at the Dera, her clothes were got changed. At the Dera Fateh Khan, Mohammad Hayat, Faizullah and Ataullah accused were present with arms and guns. However, whole of this position has been disbelieved by the learned trial Court and it has been held that she had eloped with Abaidullah. She has further stated that she was kept for 4 days at the mountain near Ghundi, and Bacha Kin, Fateh Khan Mohammad Hayat, Faizullah and Ataullah returned from there while the other accused kept her for for days and committed Zina with her. Thus she has alleged the commission of Zina with her by 6 persons. She further stated that she was brought then to Pai Khel and kept there for one day and from there the six accused took her to Fateh Pur where Abaidullah and Habibullah accused again committed Zina with her. She was taken by them to Mianwali to make statement favourable to them in Court. She and Abaidullah were sitting while the other accused were getting papers prepared when the police reached and arrested Abaidullah and caught hold of her. Next day her statement was got recorded by the Magistrate under section 164, Cr. P. C. And she was also examined by a lady doctor.
In cross-examination she admitted that her hand had been proposed for Abaidullah and in exchange the hand of his sister Mst. Nasim Akhtar was proposed for her brother Tariq. She denied that a regular betrothal party had reached her house for the purpose. She denied that at the time of arrest Abaidullah had pleaded to the police that she was betrothed to him and his sister was betrothed to her brother and that he had not committed Zina with her and that she had also stated that she and her mother had told Abaidullah appellant to take her away so that her father could not give her hand to Inayatullah. She denied that she had left with Abaidullah accused in the morning of 2-9-1931 and on 4-9-1981, she was got returned by Roshan Khan. She stated that there were few people in the Court when the police reached the Courts and it was open place where she was sitting and the people were passing from their side. She stated that the S.H.O. Had reached there and asked Abaidullah of his name. She denied that she had not been caught hold by the police from the Courts. She was confronted with the statement before Magistrate where she had stated that she was at the house and her sisters had gone to take water, She has been confronted with several parts of her statement before the Magistrate where she had failed to state the following
(i) that she and Mst. Nasim had raised alarm.
(ii) that Ghazi Khan and Muhammad Khan PWs had reached the spot.
(iii) and that she had named six accused who had committed Zina with her.
' She also failed to mention that from Ghundi, Bacha Kin, ;Fateh Khan, Mohammad Hayat, Faizullah and Ataullah accused had returned. She denied to have stated to S. H.
0. That she had forgotten to name the accused before the Magistrate who committed Zina with her, but the same was found to be recorded in Exh. DB. She was also confronted with her statement before Magistrate where she had not mentioned that Habibullah and Abaidullah had committed Zina with her at Fateh Pur. She was also confronted with her statement before the police where she had not told the names of six accused who had committed Zina in the mountain, but had named only Abaidullah and Habibullah as the persons who committed Zina with her. She was cross- examined on the defence version, but she denied that on the day of occurrence in the early morning, she had gone away with Abaidullah of her own free will and with the consent of her mother, and was now falsely deposing under the influence of her father and other relations. It is therefore apparent that as many confrontations with.
9. P. W. 8 Imam Ali Head Constable had recorded the F.I.R. And prepared the injury statement of complainant Gul Amir Khan but the same is not of consequence as F. I. R. Does not talk of Zina.
10. P.W. 9 Ch. Talib Ali stated that he had found Abaidullah accused and Mst. Surat Khatun in District Council compound at Mianwali on 8.9-1981, and arrested them formally. In cross-examination he admitted that Abaidullah accused pleaded with him that she had gone with her own accord. He also pleaded that he had not committed Zina with her. He admitted that when the accused was arrested Mst. Surat Khatun was for or five Karams away, but in reply to another question, he stated that Mst. Surat Khatun was sitting in the open plot of the District Council compound. He had admitted that on that day he had no other job in the District Courts. He denied that Mst. Surat Khatun had been returned to her parents and had been brought by her father. He admitted that he had taken the signature of Gul Athir, Mohammad Khan and Nadar Khan on blank papers for Yadashat. The defence counsel has laid great stress on this admission by this witness and had stated that he had unscrupulously investigated this case. The grievance is partly justified but the same does not demolish the arrest of Abaidullah appellant by this witness on 8-9.1981 from District Council compound when he was sitting in the company of Mst. Surat Khatun as we shall see later.
11. The appellant Abaidullah in his statement under section 342 of Cr. P.C. Stated that in 1978 he was betrothed to Mst. Surat Khatun and they had gone into a formal ceremony and his sister was betrothed to her brother for years before the occurrence. He denied that there were differences between the two families. In reply to another question he stated that on the day of occurrence just after morning prayers when he came out of the house Mst. Surat Khatun reached his house and told that her father wanted to marry her to Inayatullah and that her mother had sent her to him. He asked, her to go away but she threatened suicide and so he as forced to take her away. He took her to Pai I het and thereafter to Mianwali and thereafter reached his maternal uncle Amir Abdullah Khan at Fateh Pur who took Mst. Surat Khatun from him and abused him and returned her to her parents. He denied that he had committed Zina at any time with Mst. Surat Khatun. He denied that he was arrested by police at Mianwali and that Mst. Surat Khatun was taken into custody. In reply to another question he stated that they have been falsely involved. His maternal uncle returned Mst.
Surat Khatun from Fateh Pur on 3-9-1981 through Roshan Khan. There was no defence examined by the appellant.
12. The learned counsel for the defence Mr. Mohammad Bilal Advocate, has strongly contended that this is not a case in which the conviction should have been made. He submitted that all the witnesses in the case had been guilty of highly exaggerating the incident and since they have been disbelieved in respect of the main incident of abduction and also disbelieved in respect of the incident of Zina in respect of the other co-accused except Abaidullah, therefore, their evidence is not worth any reliance.
13. Mr. M. Bilal is quite right in the assertion that all the witnesses have been disbelieved in respect of the case of forcible abduction or the infliction of injury to complainant Gul Amir Khan. Moreover, the allegation of Zina against all the other co-accused has been disbelieved by the trial Court and, therefore, Abaidullah alone has been convicted under section 10 (2) of Ordinance No, VII of 1979. But unfortunately the tendency of exaggeration and false involvement of innocent persons is prevalent and, therefore, the Courts have to sift the evidence and reject those portions which are found to be exaggerated and false, but those portions of the statements of the witnesses which receive some support from some other circumstances can be relied upon.
14. The conviction of the appellant in respect of Zina is based on the statement of Mst. Surat Khatun as corroborated by some other evidence. It is correct that she had involved many other co- accused with the crime of committing Zina with her, but her statement in respect of Zina by one person has been found substantiated from medical evidence, where the Lady Doctor Jameela Lodhi has clearly opined that there was recent sexual intercourse committed with her. But Doctor stated that there was no consecutive repetition of sexual intercourse or mass violence, and, therefore, the statement of Mst. Surat Khatun that six persons had committed Zina bil jabr with her for for days is not substantiated to that extent. Moreover, in her statement before the police with which she had been confronted, she had only mentioned Abaidullah appellant and Habibullah as the persons who had committed Zina with her in the Mountains and, therefore, it is obvious that she had made exaggeration in the trial Court that the remaining 4 co-accused had also cohabited with her and hence they had rightly been acquitted by the learned -trial Court. In respect of co- accused Habibullah there is no corroboration of any sort coming from any witness or any circumstance and, therefore, it could not be safe to rely upon the statement of Mst. Surat Khatun alone in respect of Habibullah, when she has been found to have made exaggerations in her statement, and involved some innocent persons falsely. Habibullah was also, therefore, rightly acquitted on the basis of doubt.
15. However, in respect of Abaidullah appellant the position is different, In the first instance, this appellant Abaidullah is the person who had been admittedly betrothed to list. Surat Khatun and he was, therefore, the B likely person who could have the motive of keeping Mst. Surat Khatun away from marrying another person and who could have a liking for Mst. Surat Khatun. Further, the statement of Mst. Surat Khatun in respect of commission of Zina by Abaidullah with her can be treated as likely to be true, if she was in fact found to have been subjected to sexual intercourse, as no other person was found to be with her, while the appellant was so found. In this respect, the statement of Lady Doctor Jameela Lodhi is relevant who has found sufficient evidence to show on examination of the vagina of Mst. Sura Khatun, that she had been subjected to sexual intercourse.
Since no violence was found on her body, it could be reasonable to infer that she was a willing party to sexual intercourse. The persons who had been betrothed to her is Abaidullah, and he is the person who had been found with her on 8-9-1981 and he is also the person against whom she made the allegation of Zinc and this extent her statement can be believed as the same is finding support from other circumstances. The lady doctor had also stated that she had been subjected to rape within 8 to 9 days and maybe that she had a sexual intercourse within 2/3 days of examination. This position fits in with the statement of Mst. Surat Khatuh, who stated that she was taken away on 2nd September, 1981 and was recovered by the police on 8-9-1981 and during this time she had been subjected to intercourse. Other support to the intercourse committed against Mst. Surat Khatun is provided by the Report of the Chemical Examiner which showed that the swabs were stained with semen. These c swabs have been obtained by Lady Dr. Jameela Lodhi (P.W. 1) from the vagina of Mst. Surat Khatun on 10-9-1981 and from the presence of semen is established that sexual intercourse with Mst. Surat Khatun had taken place within a week of 10-9-1981, and thus the statement of Mst. Surat Khatun in respect of Zina has found some corroboration from this report of the Chemical Examiner and also in respect of the timing of intercourse.
16. Other support to the statement of Mst. Surat Khatun. In respect of the commission of the offence by Abaidullah, is provided by the statement of P.W. 9 Ch. Talib Ali S.H.O. Who had arrested the appellant on 8-9-1981 from the District Council compound when the appellant was sitting with Mst.
Surat Khatun. In spite of the fact that this witness Ch. Talib Ali had been indiscreet in taking signatures of some P. Ws. On blank papers, but according to us it was only an act of overzeolousness and indiscretion on his part. We do not find any justification to discard the factum of the arrest of Abaidullah from District Council compound on 8-9-1981 in the company of Mst.
Surat Khatun as duly deposed by her. There was no allegation against P.W. 9 Ch. Talib Ali that he was inimically disposed towards Abaidullah or had any personal enmity with him to involve him falsely. Mst. Surat Khatun was cross-examined at length in respect of arrest of Abaiduilah and recovery of Mst. Surat Khatun, but her statement in this respect remained unshattered and there is no reason to disbelieve this aspect. Therefore, the arrest of Abaidullah in the company of Mst. Surat Khatun on 8-91981 is reasonably established.
17. Another important circumstance in respect of involving Abaidullah in the matter of Zina is proved by the statement of Abaidullah himself under section 342, Cr. P. C. Which has been sufficiently detained in the early part of the statement. He has clearly admitted that Mst. Surat Khatun had come t him and she had threatened suicide and so she had forced him to take her t Pai Khel and thereafter he had taken her to Fateh Pur, and thus the statemen of Mst. Surat Khatun that she was taken from Pai Khel to Fateh Pur I corroborated from the statement of the appellant himself. Even the timin of the incident i,e, 2-9-1981 is clearly admitted by the appellant himself. H Nis however taken the position that his uncle Mir Abdullah at Fateh Pur bad taken Mst. Surat Khatun from him and returned to her parents on 3-9-1981 through Roshan Khan. It is, therefore, clear that the appellant has admitted to have kept Mst. Surat Khatun from 2-9-1981 to 3-9-1981. But the statement of Abaidullah appellant that his uncle had returned Mst. Surat Khatun is not substantially established from any circumstance. The appellant has not produced his uncle Mir Abdullah or Roshan Khan to prove that they had returned Mst. Surat Khatun to her parents on 3-9-1981. In fact the trend of the cross-examination of Mst. Surat Khatun shows that Abaidullah was arrested in her presence from District Council compound. In fact the cross-examination shows that she was returned on 4-9-1981. It further appears that the accused Abaidullah was not sure of his defence and did not know which line to pursue. In any case if he wanted it to be believed that he had returned Mst. Surat Khatun then it was necessary for him to prove so, as otherwise it is reasonable to except that once the appellant and Mst. Surat Khatun had started together they will continue together in their association unless otherwise interrupted. Such interruption has only come on 8-9- 1981 and not earlier. The medical evidence also shows that this association of the two persons had continued for some time as the private part of Mst. Surat Khatun was tender to examina-E tion i,e, felt pain, and it also bleeded to touch, and the tears were in healing stage, and had not completely healed, which means that the intercourse had taken place recently.
17-A. It is, therefore, apparent that the statement of Mst. Surat Khatun in respect of the commission of Zina by Abaidullah had received substantial support and corroboration from different, circumstances enlisted above, and therefore, the appellant has been rightly convicted under section 10 (2) of Ordinance, 1979, and we maintain the sentence.
18. Malik Rab Nawaz Noon, the learned counsel for the complainant Gul Amir Khan, contended that 5 years' R. I. And 15 stripes was not adequate in the circumstances of the case. We do not agree.
The appellant had been subjected with the torture of facing a life sentence for an offence under section 11 of Ordinance No, VII of 1979 on the charge of forcible abduction, which was not a fact. He has been found to have merely eloped with Mst. Surat Khatun who has escaped any punishment whatsoever. It is, therefore, meet and proper that the maximum sentence which has been provided under section 10 (2) of Ordinance No, VII of 1979 i,e, 10 years should have not been awarded to him.
The sentence was within the discretion of the trial Court and it was not obligatory on the trial Court to give the maximum sentence of 10 years. The trial Court has used reasonable discretion by not awarding the maximum sentence, and we therefore, see no justification to interfere. We, therefore, maintain the said sentence. However, since the learned trial Court has not stated anything about applying the provisions of section 382(B) of Cr. P. C. It appears that the same has escaped his notice, and, therefore, in consequence of the provisions of 382(B) of Cr. P. C., we would direct that the time during which the appellant remained in Jail before his conviction should be treated as the time spent by him suffering the sentence of substantive imprisonment.
20. With this direction in respect of the sentence, the two appeals are dismissed.