' This appeal under section 410, Cr.P.C. Is preferred against the iudgment dated 5th November, 1979, of the learned Ex Offico/Additional Sessions Judge, Karachi, whereby he acquitted co-accused Muhammad Hanif and convicted the appellant under Sections 170, 3142 and 363, P.P.C., and sentenced. Him on first count to undergo R.I. For one year and a fine of Rs, 2,000 and on the second count R.I, for six months and a fine of Rs, 1,000 and on third count R.I. For five years and a fine of Rs, 3,000 or in default to undergo further R.I. For two years.
2. The facts of the prosecution case are mentioned in the statement Exh.7 of Mst. Yasmeen (victim) daughter of Muhammad Hashim alias Laloo resident of House No,659-C, Central Commercial Area, near Kurta Palace P.E.C.H. Society, Karachi, which reads as under:- "Stated on inquiry that lam residing at the above address alongwith my parents. Yesterday, on 5th January, 1977 at about 14-00 p.m, I had gone in my neighbourhood from my house to meet with my girl friend and I was coming back to the house at .About 8-00 P.m, when this person, who now disclosed his name as "Shabrati" met me on the way and asked me as to where I was roaming at night. I replied that was going to the house, whereupon he said that he was a policeman of the police station and that I should go with him to the police station. He caught my hand and took me from there on foot and brought me in the same Bungalow where the police has seen me. Then took me upstairs in the room, there was darkness in the room, (he) did not switch on the light and said to me that he would thrust the cloth in my mouth if I raised cries there and made me sit on the bed, put off all my clothes forcibly. I prevented him too much and started weeping but he listened nothing, that he too put off all his clothes and committed illicit act upon me, forcibly, by lying me down on the bed sheet, as a result of which I felt too much pain. I raised cries and wept, but nobody came there. After committing illicit act upon me, (he) laid down separately, when after a short while, his friend, this person who now disclosed his name as Muhammad Hanif came there and sat with me on the bad sheet. I made much entreaties with him that he should not spoil my honour, whereupon he passed his hand over my breast and pressed my bossoms. On my weeping and raising cries, he got up and went out. After his departure, Shabrati again came there and made me take 2 tablets and one capsule forcibly. Thereafter, he remained lying down on the bed sheet, with me for the whole night and committed illicit act upon me for four times and he went on cleaning his penis with the bed sheet every time after committing illicit act. After sunrise, his friend arrived there, I asked them that they should allow me to the house, but they did not allow me to go and kept me confined in the room and this time they were taking me with them when the police arrived and captured both of them. This much is my statement which was read over to me and admitted correct."
3. Abdul Lateef S.I.P. P.W.6, who was Additional S.H.O., at police station Ferozabad at the time of incident and was available on the day of incident in Block No, 6, of P.E.C.H. Society in connection with an investigation of another case. He was passing near bungalow No,24-D, when he found the appellant, acquitted accused Muhammad Hanif and Mst. Yasmeen (victim) out of the gate of the said bungalow. Mst. Yasmeen (victim) after seeing him in uniform at once rushed towards him and informed him pointing out to the appellant 'Shabrati' that she was brought by him there on the previous evening and confined there and theappellant had committed rape on her during course of night. She further informed him that acquitted accused Muhammad Hanif had also rubbed her chest after the appellant had committed rape on her. He recorded her statement on the spot and sent it through his subordinate staff to the police station Ferozabad for incorporating it in the 154, Cr.P.C. Book which was accordingly registered under section 170/303/376/354/342/34, P.P.C. He thereafter secured Mst. Yasmeen, from possession of the appellant and acquitted accused Muhammad Hanif and prepared such Mashirnama Exh.19 in presence of Mashirs Abdur Rehman and Yakoob. He then inspected the scene of offence which was situated in a room of the said bungalow. He secured a "Chadar" and a cover, both stained with semen in presence of same Mashirs and prepared such Mashirnama Exh.20. He then arrested the appellant as well as acquitted accused Muhammad Hanif in presence of same Mashirs and secured their trousers which were having stains of semen and prepared such a Mashirnama Exh.21. He also secured a pink coloured Silken 'Pajama' of Mst. Yasmeen (victim) having semen spots on it in presence of same Mashirs and prepared such Mashirnama Exh.22. He thereafter inpsected the place where from the appellant had kidnapped Mst. Yasmeen in presence of same Mashirs and prepared such a Mashirnama Exh.23. He then recorded statements of the witnesses under section 161 Cr.P.C. He thereafter brought the appellant and acquitted accused Muhammad Hanif and Mst. Yasmeen (victim) to the police station Ferozabad and referred them to the medical officer for their examination. He sent the semen stained clothes secured from the appellant as well as acquitted accused and Mst. Yasmeen (victim) to the Chemical Examiner and thereafter challaned the appellant and acquitted accused to stand trial for the above offences.
4. The prosecution case is mainly based on evidence of Mst. Yasmeen victim), corroborative witness Muhammad Hashim, father of the victim, medical evidence about her age, recovery of semen stained "Chadar", Chemical Examiner's report, Syed lqbal Ahmad, the then C.M.O. Of Civil Hospital, Karachi, who had examined the appellant, Dr. Hameeda Quraishi who had examined Mst.
Yasmeen, Mashir Yakoob and the Investigating Officer.
5. The appellant/accused, however denied the allegations and stated that about a year prior to the day of incident, Mst. Yasmeen was engaged to him. She was on illicit terms with one Saeed and he had seen her moving with him. He therefore refused to marry with her and complained to her father about it which resulted in concoction of this case against him.
6. The point for determination is whether the appellant has committed any offence. If yes, what offence has been committed by him?
7. The prosecution has led the evidence as stated above in order to prove the case against the applicant. The medical evidence of Dr. Hameeda Quraishi P.W.5 who examined Mst. Yasmeen (victim) shows that her hymen was intact, margins were regular. According to her there was nothing to suggest that rape was committed on her. Though after going through the contents of the Chemical Examiner's report she has said that rape was committed on her.
' The trial Court has however considered commission of rape doubtful and decided this point in favour of the appellant by giving him benefit of doubt and acquitted him of charge under section 376, P.P.C. As.Far as offences under section 170/342/363, P.P.C. Are concerned the direct evidence for all the offences is of the prosecutrix only. In order to prove offence under section 363, P.P.C., Dr. Abdul Hadi Khan Sherwani P.W.3 has been examined. He was Police Surgeon at the time when the prosecutrix was referred to him for determination of her age. Mashir Yakoob P.W.7, and S.I.P. Abdul Latif P.W.6 have been examined and their evidence, in addition to what they have stated for other offences, has provided corroboration for the .Prosecutrix for offence under section 342, P.P.C.
8. It is necessary to examine the evidence of Dr. Abdul Hadi Sherwani who has stated before the trial Court that Mst. Yasmeen was aged between 15 and 16 years and that she had not attained the age of 16 years in view of her clinical as well as radiological examination.
9. Mashir Yakoob P.W.7 and S.I.P. Abdul Latif P.W.6 have also stated that the prosecutrix was found at the gate of the bungalow where she was wrongfully confined on the previous day.
10. Mr. Mahmood-ul-Hassan, the learned counsel. For the appellant has contended that apart from the fact that there is only a word of the prosecurtrix on which the conviction has been based, the evidence of Dr. Abdul Hadi Khan Sherwani P.W.3 has left a room for consideration if offence under section 362, P.P.C. Is made out against the appellant. According to medical examination, conducted by Dr. Abdul Hadi Sherwani, Mst. Yasmeen is aged between 15 and 16 years. He has therefore contended that there is always margin of error of one year on either 'side. She could be even between 16 and 17 years of age at the time of the incident. Therefore no offence under section 363, P.P.C. Is constituted as the prosecutrix was not under 16 years of age at the time of incident. He has relied upon 1975 P Cr. L J 453, where conviction more or less under similar circumstances has not been upheld. Moreover her evidence about commission of rape on her did not lend support from medical evidence and the appellant has been acquitted by the trial Court by giving him benefit of doubt on the charge under section 376, P.P.C. He has further contended that the appellant has been convicted under other offences also on a word of the prosecutrix without any corroboration.. Since the appellant has been given benefit of doubt under section 376. P.P.C, his case was equally good for benefit of doubt for all other offences.
11. Mr. Murtaza Hussain, the learned counsel appearing on behalf of rhe State on the other hand has contended that the prosecutrix has been medically examined and certified to be between 15 and 16 years of age. Lt has been specifically stated by the medical officer that she had not attained the age of 16 years on the day of her examination. This evidence has gone unchallenged on record as no question has been put in cross-examination disputing the prosecutrix's age in any manner and it has therefore been accepted by the appellant. Moreover recovery of thee prosecutrix from the bungalow in question has also been proved beyond any doubt through evidence of Mashir Yak- oob and Abdul Latif A.S.I. He has thus supported the conviction as such on the basis of the evidence brought by prosecutrix against the appellant.
12. I have considered the contentions of the learned counsel for the appellant as well as State. I have also carefully gone through the evidence on the record. As far as evidence to prove offences under sections 170 and 342, P.P.C. Is concerned, there is only a word of the prosecutrix that the appellant pretended to be a policeman and brought her to the bungalow in question where she was wrongfully confined. Both the acts have not been witnessed by any one and therefore there is no corroborative evidence either for offence under section 170, P.P.0 or 342, P.P.C. Regarding offence under section 363. P.P.C. There is again only a word of the prosecutrix that she was kidnapped from a place near Khayam Cinema. The corroboration is being sought from the evidence of the Medical Officer Dr. Abdul Hadi Sherwani who has certified her to be between 15 and 16 years of age. There is also 'evidence of Muhammad Hash= P.W.2, who is father of the prosecutrix. He has stated before the trial Court that the prosecutrix is between 15 and 16 years and also about her going to the house of her 'Saheli' and her grand-mother at about 4-00 p.m. He had himself gone at about 6.30 p.m. To both the houses of the above persons and was informed that she had returned back to her house. When he searched for her and could not get any clue, he appeared at the police station and informed the police about her disappearance and stayed at police station upto 11-00 p.m.
Then he was asked by police to go to his house saying that whenever clue of his daughter was known, he would be informed accordingly. It was in the subsequent morning when at about 6-00 a.m. Or 7-00 a.m, police went to his house and took him to the police station and made him sit there as the party had gone who brought his daughter there and he identified her. It is noteworthy that no report for what-this witness informed the police about disappearance of the prosecutrix was registered at the police station. But he has been sent for from his house in the morning on the next day at 6-00 a.m, or 7-00 a.m, and taken to police station. Where he came to know that a police party had gone and the prosecutrix was brought there whom this witness identified to be his daughter. This is something which is not in accordance with the human conduct. It shows that some facts about the incident are being suppressed by the prosecutrix.
' However in order to sustain the conviction under section 363, P.P.C. The age of the prosecutrix at the time of incident has got to be below 16 years. This is a case of city of Karachi, where registration of birth is compulsory and failure to produce such extract from the municipal register of births suggests that it may not have been favourable to the prosecution. Therefore the prosecution case hinges only on the evidence of Dr. Abdul Hadi Sherwani, the then police surgeon of Karachi. It is well-established that medical evidence alone even if it is based on ossification test is not a sure guide for determining the age of person as it is dependant on a number of factors such as climate, heredity and environment. Therefore his estimation of age cannOt be considered to be accurate and the possibility of her having crossed the 16th year of her age on the day of incident cannot be excluded and the conviction as such for the offence under section 363. P.P.C. Cannot be sustained.
Moreover the other circumstances, like, place from where the prosecutrix is alleged to have been kidnapped and she accompanied the appellant on foot to the Bungalow in question and not raising any cries even when she was all alone in the room on the upper stoney of the bungalow in a thickly populated place like P.E.C.H. Society and no witness either from the inmates of the ground floor of the bungalow or neighbourhood of it suggests that the prosecutrix was a consenting party.
She had implicated the acquitted accused in her statement which was subsequently incorporated as F.I.R., by the police but exonerated him in her evidence before the trial Court. Moreover she has admitted to have put her thumb-impression mark on the statement at police station. Mashir Yakoob has also stated that it was 'Subaidar' who told him about the allegations against the appellant. It seems that the prosecutrix had not stated anything in his presence. Moreover he is not a resident of the locality and is having his house at a distance of 6 miles from the place of occurrence. I have therefore reached a conclusion that no reliance can be placed on the evidence of the prosecutrix which is not corroborated in any material particular. The appellant was already acquitted of the charge under section 376, P.P.C. By the trial Court by giving him benefit of doubt and his case is equally good for giving him benefit of doubt for other offences also as convictions and sentences on such evidence cannot be upheld. He is entitled to benefit of doubt under the circumstances of the case which is accordingly given to him and he is acquitted.
13. In the result I accept the appeal of the appellant, set aside his convictions and sentences and direct that he be set at liberty forthwith if not required in any other case. .