' Mian Khan appellant aged 18 years was challaned alongwith his brother Malik Ali and sister Mst.
Ashraf Bibi. The learned Additional Sessions Judge, Faisalabad by his judgment dated 22nd March, 19F0, acquitted Malik Ali and Mst. Ashraf Bibi but convicted Mian Khan under sections 10 and 11 of Ordinance No, VIII of 1979. Mian Khan was convicted under section 10 to ten years' R. I., thirty stripes and a fine of Rs, 1,000 or in default one year's R. I. Under section 11, he was convicted to imprisonment for life, fifteen stripes and a fine of Rs, 1,000 or in default one year's R. I. The sentences were ordered to run concurrently. He has come up in appeal against the said judgment.
2. The facts of the case are that Manzoor Ahmad P. W. 4 is the father of Mst. Rani P. W. 5, the alleged abductee.. The wife of Manzoor Ahmad and mother of Mst. Rani had died whereafter he married Mst. Rani as his second wife and had children from her. Mian Khan appellant is a real brother of Mst.
Irshad Bibi aforesaid. It is in the F. I. R. That Mian Khan and his brother and sister wanted the hand of Mst. Rani for Mian Khan and for this purpose on 20th December, 1979, at about 6.00 p.m.. Mian Khan and others came to his house and demanded the hand of Mst. Rani which was refused by him and his second wife Mst. Irshad Bibi. It is stated in the F. I. R. By Manzoor Ahmad that he thereafter went out of the house for labour. He returned back to his house and found that Mst. Rani was not present there. On inquiry, Mst. Irshad Bibi told him that she had gone out and would return shortly. As Mst.
Rani did not turn up, her father started searching her and met Muhammad Aslam P. W. 6 and Jalal Din (given up P. W.) who informed him that they had seen Mst. Rani alongwith Mian Khan and other accused. It is further stated in the F. I. R. By Manzoor Ahmad P. W. 4 that he contacted the relations of Mian Khan etc. Accused who promised to return her but ultimately she was not resorted to him, whereafter on 29th December, 1979, at about 11.00 a.m., he lodged the F. I. R. Exh. P. E. At P. S. War Bertan, District Sheikhupura. After registration of the case, the police undertook inVestigation. On 3rd January, 1980, Mst. Rani was found in the company of Mian Khan accused near a Railway crossing in Faisalabad by the police who was then accompanied by Manzoor Ahmad P. W.
4. Mian Khan was arrested and Mst. Rani was also recovered from his custody. She was produced before a Magistrate where her statement under section 164, Cr. P. C. Was recorded. She was got medically examined by Dr. Nafees Akhtar, W. M.
0. Who found that the hymen of Mst. Rani was broken, tears were old and healed and admitted index finger freely. She did not find any mark of injury or contusion on her body and private parts.
She took two vaginal swa bs and sent them to the Chemical Examiner, Lahore. Her report of medical examination is Exh. P. A. The report from Chemical Examiner Exh. P. B. Was received by this witness and according to this report, the swa bs were not found to be stained with semen. She was also X- rayed by Dr. Abdul Hamid Sabir P. W. 2 for determination of her age. According to this witness, the age of Mst. Rani was 14 to 15 years. In the cross-examination he admitted that the fusion of lower ends of radius and ulna in the wrist joints are completed at the age of 16 to 17 years and those of shoulder joints at the age of 17 to 18 years and that of iliac crest at the age of 19 to 20 years. The accused were challaned after the investigation of this case.
3. During the trial, the prosecution examined seven witnesses in all. P. W. 1 and P. W. 2 are the Medical Officers, the gist of whose statements has been given above. Jewan Khan Head Constable P. W. 3 only recorded F. I. R. Exh. P. E. Manzoor Ahmad P. W. 4 is the father of Mst. Rani and supported the statement made by him in the F. I. R. Mst. Rani P.W. Has also supported the prosecution case.
Muhammad Aslam P. W. 6 is a Wajtakkar witness and stated that he saw Mst. Rani in the company of the accused. Khan Muhammad A. S.-I. P. W. 7 investigated the tase and challaned the accused.
4. The accused when examined denied the charge and pleaded innocence. Mian Khan stated that Manzoor Ahmad P. W. Had promised to give the hand of Mst. Rani in exchange for his marriage with his sister Mst. Irshad Bibi. He has gone back from his promise and has brought a false case against him. The accused did not produce any evidence in defence.
5. I have gone through the entire evidence with the assistance of learned counsel for the appellant and the State. It is contended by the learned counsel for the appellant that the abductee Mst. Rani P. W. 5 was above the age of sixteen years at the time of alleged occurrence ; that Mst. Rani was not abducted by the accused but had in fact gone with Mian Khan of her own accord as is indicated from the evidence on record. It was, therefore, argued that no case of abduction was made out against Mian Khan. It was further submitted that on the same evidence, two co-accused of the present appellant were acquitted and as such, the evidence against Mian Khan was not divisible. The learned counsel for the State has controverted these contentions.
6. I have considered the arguments of learned counsel for the appellant. In my opinion, Mst. Rani at the time of alleged occurrence was not below the age of sixteen years as stated by her and her father Manzoor Ahmad. According to the X-ray report, it is stated that the epiplysis of the radius of both elbow joints were almost united. The other ends of various parts were not united but the fact the joints of elbows had been united would indicate that she was certainly not of fourteen years of age. According to F. I. R., the complainant Manzoor Ahmad had promised to produce her birth certificate but he failed to do that. It was contended on behalf of the appellant that the name of Mst. Rani P. W. 5 was Abida Yasmeen. This question was specifically asked from Manzoor Ahmad P.W. 4 but he denied that real name of Mst. Rani was Abida Yasmeen. However, Mst, Rani P.W. 5 while appearing in Court admitted her name to be Abida Yasmeen. This indicates that the name of the alleged abductee was deliberately changed to make the same an excuse for not producing her birth certificate. It will be interesting to note that Manzoor Ahmad P. W. 4 in cross-examination admitted that at the time of death of his first wife, Mst. Rani P. W. Was aged about five years. When she was aged about seven years, he married Mst. Irshad Bibi: His marriage with Mst. Irshad Bibi according to him, took place about nine years earlier. This means that the age of Mst. Rani P. W. At the time of occurrence would come to about sixteen years. Although Dr. Abdul Hamid Sabir has stated that she was aged about 14-15 years but the determination of age by medical examination is always a probable determination and one cannot say with certainty about the age of the person examined by the Medical Officer. Thus, in my opinion, Mst. Rani was above the age of sixteen years at the time of occurrence.
7. From the facts and circumstances of this case, it appears that Manzoor Ahmad P. W. 4 had left Mian Khan and other accused in his house while going for doing labour. They were frequent visitors to his house even before the occurrence. It is stated by Mst. Rani P. W. 5 in her cross-examination that the accused wanted her hand in exchange to the marriage of Mst. Irshad Bibi and this dispute was going on for last 4/5 years of the occurrence. Thus, it appears that Mst. Irshad Bibi herself prompted Mst. Rani to accompany Mian Khan without the consent of Manzoor Ahmad. It was for this reason that there was a delay of about nine days in lodging of the F. I. R. At the Police Station.
Manzoor Ahmad was trying to settle the matter but having failed, he brought this case against the accused. I am not satisfied with the evidence on record that it was a case of abduction or enticement of Mst. Rani P. W. By Mian Khan or by any of the accused, and he is accordingly acquitted of the charge of abduction.
' So far as the charge of rape is concerned. I find that the hymen of Mst. Rani had old tears. The W.
M.
0. Who examined her did not find any marks of injuries on her private parts or other part of the body. The report of Chemical Examiner also indicates that the swabs taken from the hymen were not stained with semen. There is no corroboration to the statement of Mst. Rani, I, therefore, hold that the charge of rape is also not proved. I, therefore, give him the benefit of doubt and acquit the accused. He shall he released forthwith if not required in any other case.