' Muhammad Fazil is accused of the offences under section 363/376, P. P. C. He was convicted on the two counts on 28-2-1980 and sentenced to seven years' R. I. On each count and to a fine of Rs, 1,000 in default in payment of fine to undergo six months, R. I. On each count. Both the sentences were ordered to run concurrently. The appeal of the convict is before me.
2. Mst. Sughran, the abductee was appellant's sister-in-law. Near about the last week of June, 1976, she was enticed away by the appellant from her house, situated at Bhoosal Sukha, where she lived with her parents. According to the prosecution case, the appellant took her on the pretext of purchasing some cloth for her, therefore, his wife Mst. Mahri allowed her sister to go with him. Later, she was taken to the house of the appellant's sister, from there, to village Dugal, where he committed rape on her. Her father Mutalli tried to trace the accused, failing which, he reported the matter at Police Station, Miana Gondal on 4-7-1976. P. W. 10 Raja Mubarik Ali, S.-I., investigated the case. He recovered the abductee and got her medically examined. Later the accused was arrested and sent up for trial.
3. During examination under section 342, Cr. P. C., the appellant denied guilt. He denied his marriage with the abductee's sister and said that he did not know as to why he had been accused.
He led no evidence in defence. He, however, produced Exh. D. A. Copy of the plaint of the suit for the restitution of conjugal rights, Exh. D. B. Copy of the nikahnama of the accused with the abductee and Exh, D. D. Medico-legal report of the abductee, according to which, she was about sixteen years of age.
4. Appellant's case is that he had married Mst. Sughran Bibi, after he had divorced his first wife. Mst.
Mahri appeared as a prosecution witness in this case. She was not suggested whether she had been divorced by the accused. Her father, Mutalli, however, under cross-examination did say that divorce was given by the appellant to Mst. Mahri but he added that the divorce was received after the abduction of his daughter Mst. Sughran Bibi. He was confronted with Exh. D. A. Copy of the plaint of the suit for the restitution of conjugal rights filed by the appellant, although, the abductee in her statement supported the prosecution case. Under cross-examination, she gave out her age as 17 years. She admitted that two years before the occurrence of this case, the appellant had divorced her sister Mst. Mahri, though Mst. Mahri was not suggested but from the admissions made by the abductee and father it appears that the appellant had given divorce to his first wife.
5. The next question for consideration would be whether Mst. Sughran was a consenting party.
From her cross-examination, it appear that she did not protest throughout. Admittedly, she was taken from, place to place. Although she said that she raised hue and cry throughou in and out of the house, wherever she was kept but no one listened to her. This appears to be a highly improbable story. With regard to the age, the medical certificate produced by the prosecution shows that she was 16 years of age, proved by P. W. 13 Mst. Zahida, the lady doctor. On the other hand, the Chairman of the Union Council, who produced the Register of Births and Deaths gave out her date of birth as 1962. Photostat copy was relied upon. A photostat copy cannot be accepted in evidence. However, the witness admitted that there were interpolations in B the Register. He added that for authenticity, the Register used to be signed by the Secretary each year. Admittedly, the year the abductee was born, there was no signature of the Secretary to authenticate the entries Under these circumstances, there was no authenticity about the entries for the year 1962. The abductee admitted that she had been menstruating two years before she was taken away. From circumstances of this case as analysed above, it is apparent that she eloped with the appellant.
6. Giving him the benefit of doubt, I accept this appeal, set aside the conviction and sentence of the appellant. He shall be released forthwith D if not required in any other case. .