1. ' Appellant aboveinamed, being aggrieved by judgment, dated 17th July, 1979 of the learned II Additional Sessions Judge, Nawabshah, in Sessions Case No, 154/1971 by which appellant has been convicted under section 363, P. P. C. And sentenced to suffer R. I. For 5 years and also to pay fine of Rs, 1,000 or in default to suffer, further R. I. For 6 months and also convicted under section 376, P. P. C.
2. And sentenced to suffer R. I. For 5 years and also to pay fine of Rs, 500 or in default to suffer further R. I. For three months, both sentences to run concurrently, has filed the above appeal, on the following facts and grounds :- ' The brief facts giving' rise to the prosecution case as disclosed by complainant Abdul Karim are, that the coniplainant filed his F. I. R. On 11th June, 1977 at P. S. Tharushah alleging that Mst. Marwi is daughter of his brother-in-law and cousin Moula Bux. Mst. Marwi was said to be a minor girl aged about 14 years at the time of incident of this case and she was under the guardianship of her father Moula Box and they used to reside in the same house, with complainant Abdul Karim in village Molhan. Three days prior to 3rd June, 1977 Moula flux alongwith his wife Mst. Amanat and his mother-in-law Mst: Rahiman went to Karachi for eyes treatment of Mst. Rahiman, leaving behind his daughter Mst. Marvi under the guardianship of Abdul Karim, because Mst. Marwi was studylag in 9th Class at Tharushah. On 3rd June, 1977 the complainant bad gone to the mosque to offer Jumma prayers, leaving behind his wife Mst. Ashia and Mst. Marwi in the home. After offering Jumma prayers, the complainant came back to his house, when his wife Mst. Ashia informed him, that while he had gone to the mosque, appellant Allahdad armed with a pistol, co-accused Muhammad Murad, Muhammad Bux son of Allah Obhayo and Mohomed Bux son of Kando all armed with lathis entered their house. Appellant Allahdad pointed out his pistol at Mst. Ashia and threatened her to keep quiet. Then all the co-accused as well as appellant started taking away Mst. Marwi forcibly and they dragged her for the purpose of kidnapping. Co-accused Murad put his handkerchief on the mouth of Mst. Ashia, who was trying to rescue Ma. Marwi, because Mst. Marwi was crying for help while being kidnapped by the appellant and other co-accused persons. Mst.
3. Ashia further told the complainant, that then appellant as well as co-accused took away Mst.
4. Marwi and then Mst. Ashia collapsed and became unconscious. She further informed the complainant, that she had regained senses after about half an hour and just before his arrival.
5. Hearing this story and finding Mst. Marwi missing in the house, the complainant rushed towards the direction, where the appellant had gone as pointed out by Mn. Ashia. The complainant met with P.
6. Ws. Muhammad Bachal and Ismail, who both informed him, that a little time prior to their meeting, they saw the above-named appellant dragging away Mst. Marwi by arms and taking her away from the complainant's house. The said two witnesses further related, that they chased the appellant, who immediately got into one standing Suzuki van and took her away. On the request of complainant Abdul Karim, Mohomed Bachal and Ismail also accompanied him and they all went to Naushahro Feroz in one Suzuki van and there, they met with P. W. Hakim. After exchange of talks, P. W. Hakim informed the tracking party that some time earlier, he also saw the above-named appellant as well as co-accused and Mst. Marwi getting down from one Suzuki and then the appellant dragging away Mst. Marwi and thereafter all the co-accused as well as appellant and Mst. Marwi boarded one bus going for Sukkur side. Ultimately, the complainant party went to Sukkur in search of Allahdad and Mst. Marwi, but they could not find out any clue. On the following day, the complainant party came to Khairpur and located the house of appellant Allahdad, but his house was found locked. The complainant party came back to their village, where Abdul Karim informed their Nekmard Ghulam Shabir Sahito about the whole incident. Ghulam Shabir assured the complainant that he would call the appellant as well as co-accused's parents for restoration of Mst. Marwi. Ghulam Shabir called Ramzan, Audho, Mohomed Qabool and Haji Kouro, but after about eight days, those people refused to restore Mst. Marwi and ultimately, the complainant was advised to lodge the F.
1. R. Which was filed on 11th June, 1977.
7. ' S. H.
0. Muhammad Khalil recorded the F. I. k. Of Abdul Karim according to law. He proceeded to the place of incident which was in village Molhan in taluka Naushahro Feroz. He called mash irs Noor Muhammad and Mohomed Issa in whose presence, the mashirnama of made was prepared. The S. H.
0. Recorded statements of P. Ws. Mst, Ashia, Hakim, Bachal and Ismail. On 12th June, 1977 the investigation officer secured Mst. Marwi from the quarter of Allahdad, situated in University campus Khairpur Mir's.. The complainant was present with the Investigating Officer at the time of securing Mn. Marwi and he identified her. The mashirnama of securing Mst. Marwi was prepared in presence of mashirs Noor Mohomed and Mohomed Issa. On 14th June, 1977 the Investigating Officer arrested appellant Allahdad and co-accused Mohomed Bux in presence of the same mashirs at Naushahro Feroz bus stand and such a mashirnama was prepared. He referred Mst. Marwi to the Civil Surgeon Nawabshah for medical check-up and obtained such a certificate. On 16th June, 1977 the Investigating Officer produced Mst. Marwi before S. D. M. Naushahro Feroz for recording her statement under section 164, C. P. C. On 20th June, 1977 he arrested the remaining two co-accused as well as appellant and ultimately, he submitted the challan of this case before the S. D. M.
8. Naushahro Feroze from where the case was sent up to the Court of Sessions and then transferred to trial Court.
9. 'Appellant Allahdad had denied the prosecution allegations and proclaimed innocence. He had stated that Mst. Marwi came voluntarily to him at Sukkur and married with him in presence of witnesses Ghulam Kadir, Azizullah and others. It has been pleaded by appellant Allahdad, that Mst.
10. Marwi put her signature on the nikahnama, in which she disclosed her age to be 19 years. He has further stated, that Mst. Marwi swore an affidavit before the Mukhtiarkar and F. C. M. Khairpur voluntarily and photostat copies of her affidavit and nikahnama had been placed on record Exx. 30, 31 respectively. The case has been filed against him and his brother Mehamdoo alias Muhammad Bux and the remaining two co-accused, who are his relations due to enmity with Muhammad Ramzan. The complainant and his witnesses Ismail, Bachal and Hakim are men of Muhammad Ramzan. The appellant as well as co-accused are men of Qabool Muhammad. Mohomed Ramzan and Qabool Mohomed are on inimical terms over the land. One Muhammad Bachal, who is brother of co-accused Murad was murdered by Soomar and others, who are also man of Mohomed Ramzan. The statement of the remaining three co-accused was same as that of appellant Allahdad.
11. ' In order to establish charge against the appellant, prosecution had examined complainant Abdul Karim, Mst. Marwi, Mst. Ashia, Mohomed Bachal, Hakim, mashir Noor Mohomed, Mohomed Saleh Dr. Islamuddin, Mohomed lssan and lately S. H. O. Muhammad Khalid, the appellant have examined Mr. Ghulam Mohomed Bhutto in defence.
12. ' The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Muhammad Murad and Muhammad Bux, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
13. ' Appellant and his counsel were called absent in spite of notice of hearing for,27th November, 1983 sent to the learned counsel as far back as 19th November, 1978 by Registered A. D. And since this is old appeal of 1979, I decided to hear the same on merits, with the assistance of the learned Advocate for the State.
14. ' The learned Advocate for the State submitted, that prosecution has established beyond reasonable doubt, its case against appellant by statement of P. Ws. And documents produced and by proving that victim girl was recovered from the house of appellant and her age was only 14 years and as such he fully supports the impugned judgment for the cogent reasons given by the learned trial Court in the said judgment.
15. ' I have carefully gone through the Record and Proceedings of the learned trial Court as well as grounds mentioned in memo. Of appeal and impugned judgment and taken into consideration the submissions made by the learned Advocate for State.
16. ' I do not find any admission on the part of appellant in his statement in respect of alleged kidnapping and commission of alleged rape at all. On the contrary, appellant in his such statement, in answer to last question, after denying prosecution allegations stated as under :- ' Ans. "Yes Sir, Mst. Marwi had come voluntarily at Khairpur and married me before the witnesses Ghulam Kadir, Azizullah and others. She had given her signature on that nikahnama, in which she had shown her age to be of 19 years. Mst. Marwi had also sworn an affidavit before the Mukhtiarkar and F.C.M., Khairpur alongwith her photo, in which she had also shown her age to be of 19 years. I have already got produced through P. W. Muhammad Saleh, Civil Clerk of Civil Court Naushahro Feroz, the photostat copy of these two documents viz, affidavit of Mst. Marwi Exh. 30 and nikahnama Exh. 31 which are the photostat copies of the original documents, which I have already produced in the civil Court Naushahro Feroz Co-accused Muhammadoo is my brother and two other accused are my relation's and they have also been involved in this case falsely."
17. ' In support of above statement, appellant examined D. W. 1 Ghulam Muhammad Mukhtiarkar and F.
18. C. M., Khairpur, to prove Exh. 30, affidavit of P. W. 2 Mst. Marwi. This D. W. In his statement before the learned trial Court stated, that he had explained the contents of said Exh. 30 to P. W. 2 Mst. Marwi, who admitted the same to be correct and he took her signature in his presence. Statement of this D. W. Is straightforward and convincing and was not shaken in cross-examination at all. In view of this, no reliance can be placed on the statement of P. W. 2 Marwi given before the learned Court, without independent corroboration, which in my opinion is not at all available, as learned trial Court has rightly not relied upon the statements of P. Ws. Aisha, Mohomed Bachal and Hakim. In view of this, I find that appellant by his above-quoted statement under section 342, Cr. P. C. Read with statement of D. W. 1, has created reasonable doubt in respect of the prosecution case in respect of alleged kidnapping of P. W. 2 Marwi, by appellant, as alleged by prosecution and as such conviction of the appellant under section 363, P. P. C. Was not warranted in my opinion, specially in view of delay of 8 days in lodging of F. I. R., which has not been satisfactorily explained and on account of the fact, that P. W. 2 Marwi in her affidavit Exh. 30, has mentioned her age as 19 years.
19. ' It is clear from the impugned judgment that the learned trial Court did not rely upon the statement of P. Ws. Mst. Aisha, Muhammad Bachal, Hakim on account of cogent reasons, on the basis of material contradictions in their statements and thus gave benefit of doubt to co-accused persons. However, in case of present appellant, learned trial Court, while convicting him observed as under :- "I hold that accused Allahdad has committed offences under sections 363 and 376, P. P. C. By his own admission, and therefore, I find him guilty on such offences."
20. It is clear from the above conclusion of the learned trial Court, that appellant has been convicted on account of his statement under section 342, Cr. P. C. Only. In view of this I have very carefully gone through the statement of appellant under section 342, Cr, P. C.
21. ' As far as alleged offence under section 375 P. P. C. Is concerned, the appellant alleged marriage and in support thereof produced nikahnama Exh. 31 and later on has also filed a suit for restitution of conjugal rights as per Exh 11 and brought both these documents on record, through the statement of Court witness No, 1 Mohomed Saleh. In addition to this according to medical certificate Exh. 40 the age of P. W. 2 Marwi on 14th June, 1977 was between 14/15 years whereas according to school certifica Exh. 14 she was about 14 years. In view of this, prima facie exception to section 375, P. P. C. Comes into play. Specially in view of the statement of D. W. I according to which.
22. P. W. Marwi had sworn affidavit Exh. 3 voluntarily, after fully understanding the contents thereof his presence and according to para. 5 of the said affidavit, she was about to marr the appellant out of her own free will against the wishes of her father for the reasons given in the said affidavit. Further, in this Exh. 30 P. W. 2 Mst Marwi (Maroo) has given her age as 19 years. In any case P. W. Marwi at the time of alleged kidnapping and rape was over 14 years at least and as such under Muslim Law she was entitled to contract the marriage with the appellant on her own on attaining puberty, which in a country like Pakistan is presumed at the age of 14 and as such by this evidence on record the appellant has created doubt in respect of the prosecution case against him under section 375. P. P. C. And as such it would be unsafe to rely on the sole statement of P. W. 2 Mst.
23. Marwi in this connection, in the face of her own affidavit Exh. 30 without any independent corroboration, which is not at all available in the present case. Therefore, in my opinion prosecution has also failed to establish its case against the present appellant under section 376, P. P. C.
24. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by the impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above offence. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.