' B. G. N. KAZI, J.-Mumtaz son of Faiz Muhammad who was sent up for trial by S. H.
0. Shahrah-e-Faisal on charges of kidnapping Mst. Saira Banoo daughter of Fayyaz Hussain with intention to compel her to illicit intercourse ; and for having committed Zina-bil-jabr on Saira Banoo was tried by the 1Xth Additional Sessions Judge, Karachi and convicted under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and was sentenced as under :-
(1) Under section 11 sentenced to imprisonment for life and whipping numbering 30 stripes.
(2) Under section 10(3) sentenced to R. I. For 15 years and whipping numbering 30 stripes. The sentences of imprisonment to run concurrently. The appellant has filed the instant appeal against the aforesaid convictions and sentences.
2. The prosecution case briefly stated is as under :- Fayyaz Hussain a resident of Federal B Area lodged F. I. R. On 29th May, 1980 at 21-50 hours at Shahrah-e-Faisal Police Station stating that on 26th May, 1980 at about 4-15 p.m. He had taken children of his brother, his sister and his own in his car for picnic to Aziz Bhatti Park. He had returned back to his house at about 7-30 p.m. And on checking the children found that his daughter Saira aged about 12 years was missing. He had searched for her by visiting the houses of his relatives and other places in vain. He, therefore, suspected that the young girl was kidnapped by some one and he, therefore, had come to report to the police for assistance and legal action. Fayyaz Hussain did not mention any names of suspects.
3. Fayyaz Hussain continued the search for his daughter and when he returned home at about 1-00 a.m. On the night between 5th and 6th June, he was informed that somebody had left Saira at his house. The girl was weeping bitterly and not in a position to give facts till 4 or 5 a.m. And ultimately informed him and other persons at home that on the day of visit to Aziz Bhatti Park she was looking for some place for urinating when the appellant who resides in the same Mohallah met her and inquired as to what she was looking for and when she told him about her desire to ease herself the appellant told her to accompany him. There were two three other boys with the appellant and one of them tied her mouth with a piece of cloth and the appellant and his companions took her away and when she regained consciousness she found herself in a house under construction. She further informed her parents that she was kept locked inside that house for 6 or 7 days and she was raped by Munir and other boy friends of the appellant at the point of knife. She further informed her parents that the mother of the appellant knew about the matter as she used to supply her with meals. Every time that one of them committed rape on her she was kept locked in the room. After 7/8 days she was left at her father's house by Mehmood, Fayyaz and father of appellant Mumtaz. In the morning her father Fayyaz Hussain took her to the Police Station where she narrated the facts and the police arrested the appellant, his mother his friends Munir and Saeed and others.
4. On 29th May, 1980 S. H. 0, Sultan Muhammad Khan had recorded F.I.R. Lodged by Fayyaz Hussain which was handed over to A.S.I. Abdul Shakoor for investigation. He visited the place of the incident and prepared memo. Of inspection (Exh. 22). On 7th June, 1980 complainant Fayyaz Hussain appeared at the Police Station with his daughter Saira and such entry was made in the station diary. A. S.
1. Abdul Shakoor recorded her statement and referred her to Civil Hospital for medical examination.
He get her statement recorded under section 164, Cr. P. C. She disclosed names of other persons also besides the appellant and the S. I. P. Arrested all the persons named by her as well as the appellant. On 10th June, 1980 the D. S. P. Ordered S. H. O. Sultan Muhammad Khan to hold investigation and he recorded statements of P. Ws. Muhammad Saeed, Mehmood Hussain, Meeran Bux, Muhammad llyas and Lal Bukhsh, He then sent slides of abductee girl and appellant to Chemical Examiner and after completing the investigation sent up the appellant alone for trial.
Incidentally Dr. Hameeda Qureshi C. M 0. Civil Hospital, .Karachi, what examined Saira stated that the girl had changed her clothes and there were no marks of violence on her body. According to Dr. Hameeda, Saira was not a virgin her hymen had old tears at 3, 6 and II o'clock positions. Dr. Hameeda was further of the opinion that for fresh act of rape she had to depend on Chemical examination of vaginal smear. She however, further gave the opinion that the vaginal tears were about 10 days old. Since no report of the Chemical Examiner was brought on the record the opinion of Dr. Hameeda Qureshi with regard to fresh act of rape 1/4 remained inconclusive. It may further be remarked that her statement in cross-examination about vaginal tears being 10 days old is also very confusing, inasmuch as in her examination-in-chief she had mentioned old tears of hymen and not of vagina. The alleged victim had also been referred to Dr. Qaisar Rasool for determination of her age and after referring to X-ray and also in view of clinical findings he was of the opinion that Saira was between 15 and 16 years old. At the trial the appellant pleaded not guilty and in his statement under section 342, Cr. P. C. He denied kidnapping Saira and committing rape. He stated that he was learning masonry work from P. W. Saeed. Saira was residing in house near the one Saeed was constructing. Saeed used to show money to her by sitting on the roof of under construction house. He had asked appellant to deliver money to Saira which he had refused to do.
He had narrated the fact to Mehmood who had Estate Agency and had given contract to Saeed for constructing the house. The appellant further stated that after he narrated the episode to Mehmood, Saeed did not turn up for 4/5 days. The appellant and Mehmood had then gone to the house of Saeed at Pahar Gunj and they had found Saira in his house. They had informed father of Saira who had taken police to the house of Saeed from which Saira was recovered and police had taken Saeld, Mehmood and the appellant to the Police Station. It was further stated by the appellant that Saeed had been let off by the police on his giving bribe to them and Mehmood had also been let off but the appellant had been falsely implicated.
4-A. We have heard the arguments of Mr. Akhlaq Ahmad Siddiqui, the learned counsel for the appellant, and Mr. Raja Qureshi, th learned counsel for the State. It is apparent that except for the evidence of Saira Banoo there is no direct or circumstantial evidence connecting the A appellant ,with the alleged kidnapping or abducting of Saira. The very fact that her father did not even give names of any suspect and no othe evidence on the point is forthcoming leaves only her evidence on the point. Saira Banoo according to the evidence of Dr. Qaiser Rasool was 15-1 years of age at the time. Since the upper limit is to be considered in all fairness to the appellant, Saira Banoo was an adult as defined in clause (a) of section 2 of the Ordinance. It is also apparent from her evidence that she knew the appellant and had so much familiarity with him that she enquired from him about the place where she could urinate. It is significant to note that Saira did not ask her own father about such a ,matter which any decent young woman would avoid placing before a person who was not a `Mehram' specially when according to her the appellant was accompanied by his friends. The evidence that a cloth was put on her face and she was taken away is also not easily believable since the incident is stated to have taken place in a public park, near a canteen during broad daylight. Obviously she has not even alleged that she had cried out or struggled. She has also not said that any drug like chloroform, etc. Was used. The first authentic version of the incident is her statement under section 164, Cr. P. C. By a First Class Magistrate on 7th June, 1980, two days after she returned home. In her deposition, however, Saira Banoo admitted in her cross- examination that she had not made the statement out of her own free will but had done so at the instance of a person who was present there and had asked her to do so. In the aforesaid statement even she had not mentioned being shifted from the room in the building under construction to a second house as she has done in her deposition. She further stated that on regaining her senses she had found herself in an under construction house and she had seen one Munir and Saeed Mason Ustad of the appellant present. Thereafter mother of the appellant brought food for her and after she and Munir left Saeed had raped her. She had raised cries but he had closed her mouth by keeping his hand on it and had threatened to kill her with his knife if she made any resistence.
According to her she had bleeding from her vagina by which she presumably meant to say that her hymen got ruptured due to the rape committed by Saeed. According to her Saeed went away leaving her alone in the same room and locked it from outside. She further stated as under : "On the next day morning the mother of Mumtaz unlocked the room and came inside with breakfast and asked me to take it immediately. She went away by locking the room from outside. The mother of Mumtaz again came at noon with food in the room and went away immediately. Then on the )same day at night Munir came in the room and committed rape with me against my consent one time only. After committing rape he went away locking the room from outside. On the second day morning the mother of Mumtaz again brought breakfast for me in the room and left the place after keeping it there. Again at noon the mother of Mumtaz brought food for me in the room and went away immediately after keeping it there. In the night of the same day one Mehmood came in the room and committed rape with me against my consent for one time and went away after locking the door from outside. I remained in that room for about 8 or 9 days and during this period the accused persons namely Saeed, Munir, Mehmood, Mumtaz, Fayyaz and three others whose names I do not know but I can identify by face if they are put to me for identification committed rape against my consent at each night time. Mehmood after taking my commitment not to disclose it to any body otherwise your entire family will be killed, brought me in his red colour car to my house at mid-night on 5th June, 1980 and left the place after enquiring about my father from my brother." It is observed that according to the version of Saira the appellant raped her on the 4th night but according to her deposition in Court she stated that the appellant had raped her on the 3rd night and after 3 days she was removed to another house, this version about removal to another house which obviously is an afterthought was added to accommodate the later prosecution version about P. W. Saeed Mason asking the appellant to take away the girl from the under construction house in his charge. The medical evidence about fresh act of intercourse as already stated is inconclusive even to be considered as corroborative since the vaginal smear which was sent to Chemical Examiner also was not made use of as the police never put up the report of the Chemical Examiner. The fact, therefore, remains that there is only the word of Saira Banoo, an adult person, against the appellant both with regard to the alleged kidnapping as well as zina-bil-jabr. Further, as already observed even as admitted by Saira Banoo, the statement under section 164. Cr. P. C.
Was made at the dictation of someone else whose name she has not disclosed. The deposition is very much in accordance with the version given in the statement under section 164, Cr. P. C. Except for the improvement about taking away by the appellant of Mst. Saira Banoo from the under construction building to another house about which observation has already been made. With regard to the other version, Mr. Akhlaq Ahmad, the learned counsel for the appellant, has pointed out that Lal Bakhsh and Muhammad Yousaf did not support the prosecution and the main witness on the point, namely, Muhammad Saeed admittedly was named by Saira Banoo, as the person who raped her first. There is evidence of S.
1. P. Abdul Shakoor to the effect that he had arrested all the persons whose names Saira had disclosed in her statement under section 164, Cr. P. C Thus, it is admitted position that Saeed has been arrested as an accused person and it was only when under the order of D S. P. The investigation has been transferred to S. H.
0. That only the appellant was sent up for trial and the other persons named by Saira Banoo were let off.
5. Under the circumstances, we are, therefore, of the view that the evidence of Saira Banoo, the alleged victim, is not reliable enough to sustain the conviction and although the appellant is one of the persons named by her as having committed offences, the case against E him is not free from doubt. We accordingly allow the appeal and set aside the conviction of the appellant, giving him the benefit of doubt( and thus acquit him. He is in Jail and it is hereby ordered that he may be released immediately if he is not wanted in any other case.