' M. S. H. QURAISHI, J.-This appeal by leave of the Court is directed against the judgment of the Lahore High Court, dated 15-3-1981. The appellants, that is, Muhabat Hussain and his mother Mst.
Karam Nishan, were convicted by Magistrate Section 30, Gujar Khan, in connection with the abduction and rape of Mst. Nasreen Akhtar. Muhabat Khan was sentenced under section 366, P. P.
C. To R. I. For five years and a fine of Rs, 2,000 or in default in payment thereof to R. I. For six months.
He was also sentenced under section 376, P. P. C. To R. I. For five years. Mst. Karam Nishan was sentenced under section 366, P. P. C. To R.
1. For one year and to pay a fine of Rs, 2,000 or in default in payment thereof to undergo R. I. For six months. Their appeal before the High Court was dismissed except for reduction of the substantive sentence of Mst. Karam Nishan on account of her age, to R. I. For six months.
2. Mst. Nasreen Akhtar, the abductee, is the daughter of Karamat Hussain, the complainant, who lived in village Daryala but was at the relevant time away at Lahore in connection with his employment. Mst. Karam Nishan appellant, who is Khala of the complainant, came to his house in Daryala on 24-4-1977 at 2 p. m. And with the permission of his wife took Mst. Nasreen Akhtar to her village Ramyal for helping her in the harvesting of wheat crop. Mst. Nasreen Akhtar, however, did not return to her house. Sabir Hussain, brother of the complainant, and Abdul Jabbar were sent to Ramyal to bring her but they did not find her there. It later became known that she had been abducted by Mubabat Hussain appellant. On getting the information the complainant came from Lahore and failing to secure the restoration of the girl, lodged a report on 2-5-1977. The girl had in fact been taken by Muhabat Hussain appellant on 24-4-1977 in the evening by a taxi to Rawalpindi and from there by rail to Karachi where her nikah was forcibly performed with him on 17-5-1977. The girl was kept at Karachi for nearly five months, during which period she was subjected to sexual intercourse by Muhabat Hussain. She \was ultimately brought to Ramyal from where the police recovered her on 9-9-1977 and got her medically examined and her statement under section 164, Cr. P. C. Recorded the next day. She was, thereafter, allowed by the Magistrate to go to the house of her parents.
3. The medical examination of Mst. Nasreen Akhtar showed that she had been subjected to sexual intercourse and was pregnant for 5i months. The prosecution case was supported by Mst. Nasreen Akhtar (P. W. 2) and her mother Mst. Feroza Begum (P. W. 5). Sabir Hussain (P. W. 3) stated that when he was returning from the house of the appellants, he had been told by Muhammad Siddiq (P.W. 4) and Shafi Muhammad (not produced) that they had seen the abductee standing with Mst.
Karam Nishan appellant at Adda Banth at 4 p. m. The previous evening, where Muhabat Hussain appellant came with a taxi, in which he forcibly put the abductee and proceeded to Rawalpindi. In this he was corroborated by Muhammad Siddiq (P. W. 4).
4. The plea of the appellants was of innocence. Muhabat Hussain stated that the abductee had married him of her own free will and remained with him as his wife. He produced Noor Elahi and.
Muhammad Maskin as defence witnesses, the former stating that he had participated in the nikah ceremony which had been performed amicable and that he had thumb-marked the nikahnama Exh. D A.
5. The trial Court held that both the appellants were guilty of abduction of Mst. Nasreen Akhtar in that she had been taken to Karachi, subjected to sexual intercourse and to marriage forcibly. The High Court believed the parents of the girl regarding her age which it held to be less than 16 years and as such repelled the contention that the girl had been a consenting party as consent was of no significance.
6. Leave was granted for re-appraisal of the evidence to consider whether Mst. Nasreen Akhtar had been a consenting party and whether the same in view of her age was not relevant.
7. The abductee's statement shows that she had been taken from village Ramyal to Adda Banth, from there in a taxi to Rawalpindi and from there by train to Karachi. There her nikah was performed with Muhabat Hussain appellant and after five months' stay she was brought to Ramyal, from where she was recovered. According to her, she had been through, output under fear of death. But it is strange that she made no effort to resist her abduction even when she had the opportunity to do so. She herself stated that Muhabat Hussain had gone-away to fetch a taxi and at that time only Mst. Karam Nishan was with her at Adda Banth. Even then she did not seek the help of any one for her rescue. She further stated that at the Railway Station, Rawalpindi, Muhabat Hussain appellant had gone to buy ticket while she was sitting alone in a room in which no one else was present though. There were a lot of people present at the platform and yet she did not seek help. On her return to Ramyal, she remained in the house of the appellants for seven days but even during this period she did nothing indicative of a lack of consent on her part. According to the Lady Doctor, Mst. Nasreen Akhtar had possibly been a consenting party to sexual intercouse as no sign of violence was found on her person. In fact Mst. Nasreen Akhtar stated : [Script not provided in original copy] ' Her conduct was thus not compatible with the prosecution assertion that she had been forcibly removed and detained. Rather it lent support to the defence plea that she had been a consenting party. In Harditta v. Emperor where in the opinion of the Court it was not unlikely that the girl herself had eloped with some of the accused and on missing her, her parents got up the story to recover her and to bring her paramours' into trouble, it was held that a conviction under section 366, P. P. C. Was improper. In Muhammad Abdul Khaleque v. State this Court held that : "In a case of this kind, it is very necessary that before finding the accused-persons guilty of rape, i. e. Of sexual intercourse without the consent of the woman, the Court should be satisfied that the1 2 woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstance connected with the woman which would serve by itself to show that her story of forcible intercourse is true........
8. There is also no evidence that she had been taken by deceitful means. According to the prosecution Mst. Karam Nishan had taken her for helping her in harvesting wheat. The girl did admit that on reaching Ramyal she alongwith two appellants harvested the wheat crop of Mst.
Karam Nishan. She does not allege the use of any deceitful means for taking her to Karachi. The High Court took notice of the fact that according to the evidence of Sabir Hussain, Muhabat appellant was already married and his wife was at his house at Ramyal, that this fact of his marriage had been suppressed in the nikahnama with the abductee and that as such the marriage with the abductee was "without compliance with the legal requirement of consent of the first wife". Since the girl, according to the evidence of her own father, used to visit the appellants' house, it can be presumed that she knew of the previous marrige of Muhabat Hussain. In that situation, no deceit can be said to have been played upon her in this regard. As to the effect of the previous marriage on the marriage with the abductee, no opinion can be expressed as the matter is subject-matter of a suit before a Family Court.
9. Consent of enticement would, however, not be relevant if the girl was under sixteen years of age.
Unfortunately, we find no proper material produced by the prosecution to sustain the finding that Mst Nasreen Akhtar had been less than 16 at the relevant time. In the F. I. R., her father had given her age as 15. Similar age had been given by her mother. The Lady Doctor had however, noted her age as 18, though the same was by way of description and not the result of any determination. The Magistrate while recording her statement under section 164, Cr. P. C. Had noted her age as 16/17.
The trial Court had on the basis of her appearance assessed her age to be 15/16. The ages so recorded were, however, without any clear basis such as an entry in the birth register or an ossification test carried out for the purpose. No evidence was led to show that her birth was not entered in the relevant birth register nor any explanation permitted for not getting the ossification test carried out. Where age is crucial to the determination of the criminality of the act, it must be proved by unshakable and conclusive evidence which is absent in the case. The onus of proof was on the prosecution and they have clearly failed to discharge the same.
10. We are thus of the considered view that the prosecution case against the appellants is not free from doubt and as such their conviction is not sustainable in law. The appeal is accordingly accepted. The convictions and sentences of the appellants are set aside and they are acquitted.
They are on bail. Their bail bonds shall stand discharged. AIR 1925 Lab. 274 PLD 1962 SC 325