' Dossa, Gulla and Altaf Shah were tried with Mst. Rasoolan wife of Altaf Shah (since acquitted) on the charges under section 363/366/376, P.P.C. By a Magistrate Section 30, Sargodha who vide his judgment dated 30-8-1968, while acquitting Mst. Rasoolan convicted the rest under section 363/366, P.P.C. And sentenced them to six years' R.I. And a fine of Rs, 200 each or in default to undergo further six months' R.I. On each count. Dossa was additionaly convicted under section 376, P.P.C. And was sentenced to 7 years' R.I. And a fine of Rs, 300 in default to undergo six months' R.I.
The sentences were however ordered to run concurrently.
2. Briefly the facts of the prosecution case are that Mst. Sahib Khatoon P.W.4 (the abductee) lived with her father Wali Muhammad (P.W.3) in Chak No, 56/N.B. Altaf Shah appellant also resided in that village, who used to be respected as a Peer. Mst. Sahib Khatoon have been visiting Altaf Shah's house as his disciple. It is alleged that on the day following Eid-ul-Azha (probably 14-3-1967) Mst.
Rasoolan (since acquitted) came to the house of Wali Muhammad P.W. And took Mst. Sahib Khatoon to her house on the pretext that she should help her in cooking food as some guests have visited her house. Mst. Sahib Khatoon did not return home for quite some time and Wall Muhammad felt apprehensive and went to the house of Altaf Shah whom Mst. Rasoolan told that Mst. Sahib Khatoon was not present there. He found that Altaf Shah was also not present in the house. During the search Wali Muhammad met Sher Ali (P.W.7) and Muhammad All (P.W.5) who informed him that while coming from Sargodha they had seen Mst. Sahib Khatoon going in the company of Dossa, Guile and Altaf near the village school. On this information Wali Muhammad alongwith Zia-ud-Din (P.W.1) and Muhammad Amir (P.W.2) visited village Mari and met Gulla and Altaf appellant there who told them that the girl had been abducted by Dossa their co-accused, and promised to return the girl to them after 2 or 3 days. Few days later Altaf appellant visited Wali Muhammad and expressed his inability to return Mst. Sahib Khatoon to him whereupon Wali Muhammad lodged F.I.R. Exh. P.A. With the police on 26-3-1967, recorded by Ch. Sikander Khan S.I.
(P.W.9). He also produced birth certificate of Mst. Sahib Khatoon Exh. P.B. According to which her date of birth was 10-7-1951. Mst. Sahib Khatoon was produced before the S.I. Who got her medically examined. The appellants were arrested and after completing the investigation were challaned to Court.
3. Lady Doctor Mrs. Nusrat Rashid (P.W.11) medically examined Mst. Sahib Khatoon on 13-4-1967 and found her to be weighing 120 lbs., and her height was 5 ft. And 2". She had 28 teeth. Her breasts were developed. Her hymen was completely ruptured with lateral tears, which were tender to touch and were red in colour. Her 2 vaginal swabs were prepared for detection of supermatozea. In the opinion of the lady doctor, Mst. Sahib Khatoon was 15/16 years of age, who had been raped.
Chemical Examiner report Exh. P.D. Regarding the swabs was positive.
4. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegation levelled against them and professed innocence. They explained that they have been involved in the case due to machination of Zia-ud-Din and Muhammad Amir P.Ws. They called no evidence in their defence.
5. The learned trial Court believed the testimony of Amir (P.W.5) and Sher All (P.W.7) who claim to have seen the abductee going in the company of the appellants. He further relied on the statement of Zia-ud-Din (P.W.1), Muhammad Amir (P.W.2) and Wali Muhammad (P.W.3) to the effect that before them Altaf and Gulls appellants had confessed that Mst. Sahib Khatoon had been abducted by Dossa their co-accused and that they would get her returned. The learned trial Court treated this statement as confession and used it as corroboration of the prosecution version and held them guilty for the offences of abduction excepting Mst. Rasoolan who was acquitted saying that she had brought Mst. Sahib Khatoon to her house for helping her in cooking food for her guests which was neither false nor indicative of her intention to abduct Mst. Sahib.
6. I have heard the learned counsel for the appellants and also perused the record.
7. The star witness in this case is Mst. Sahib Khatoon P.W.4 the abductee herself. She stated at the trial that on the following day of Eid-ul-Azha, she was taken by Mst. Rasoolan (acquitted accused) to her house on the pretext that she should help her in preparing food for her guests. She cooked the food for the guests of Mst. Rasoolan which was served by her. Mst. Rasoolan and Altaf accused then asked her that she is like their daughter, therefore, she should accompany them to Sargodha, where they would purchase clothes for her. On this she went in the company of Altaf, Dossa and Gulls to Sargodha. When they reached near village Mari, Dossa accused went away and brought a cycle and some money. Money was handed over to Altaf who asked her that she should sit on the carrier of the cycle of Dossa and they would follow them on a bus. Dossa took her to a deserted place near the river bank and told her that he wanted to marry her but she refused. She further stated that she was kept for about 20 days in a Dera by Dossa where he committed rape with her and Guile used to provide them food during that period. She further stated that after 20 days, Dossa and Gulle took her to Sargodha bus-stand. Dossa was standing by her while Gulla went to purchase ticket for Lyallpur. She started weeping loudly which attracted certain people and a constable to whom she narrated the episode and then she was taken to Police Station by the Constable and certain other persons. In her cross-examination she stated that she never observed Parda and used to visit the house of Altaf without Burqa. She denied to have made a statement Exh.
D.A. Before a Magistrate to the effect that she had acquaintance with Dossa and Gulla but this fact was found recorded in that statement. She stated that she felt no need to ask for permission of her parents for going to Sargodha and because she went with the Peer (Altaf) so she did not suspect any foul play. She conceded that she did not tell about the situation of Dera where she was raped.
She also conceded that she knew Zia-ud-Din and Amir P.W. And that they were inimical towards the appellants prior to the occurrence. She however denied that she lived with Zia-ud-Din P.W. Or that she falsely implicated the appellants at the instance of Zia-ud-Din etc.
8. Admittedly the report in this case was made to the appellants after 2 weeks of the occurrence.
The Wajtakker witnesses namely Zia-ud-Din and Muhammad Amir who stated to have seen the abductee going in the company of the appellants are inimical towards the appellants as has been conceded by the abductee herself. There is no allegation whatsoever that Guile and Altaf appellants had ever forced the abductee to marry Dossa or to commit sexual intercourse against her wishes. There is no allegation that Altaf and Gulla appellants had committed rape with the abductee either. According to Zia-ud-Din and Muhammad Amir P.Ws. , Altaf and Gulla appellants told them that Mst. Sahib Khatoon had been taken away by Dossa and they would try for her restoration. It is also in evidence that Altaf Shah appellant at one stage expressed his inability to get Mst. Sahib Khatoon restored to the complainant. All these facts show that Altaf Shah and Gulla appellants had no interest whatsoever in helping Dossa their co-appellant in the abduction of Mst.
Sahib Khatoon. There is every likelihood that they have been involved in the case at the instance of Zia-ud-Din and Muhammad Amir P.Ws and had offered to become witnesses in this case. The learned trial Court appears to have erred in treating the statement of Gulla and Altaf appellants to the effect that Dossa had abducted Mst. Sahib Khatoon as confession for the reason that this statement was exculpatory one and as such cannot by any standard be treated as confession. In the circumstances, I am of the view that no offence of abduction is made out against Altaf Shah and Gulla appellants and their conviction and sentence under section 363/366, P.P.C. Is set aside and they are acquitted.
9. As for Dossa appellant is concerned, it may be observed that according to the abductee while she was being taken to Lyallpur from Sargodha she had started weeping at the bus-stand whereupon some people collected there and took her to the police. If it had happened like this, then why Gulla and Altaf Shah were not arrested. According to S.I. Sikander (P.W.9), she was produced before him by one Ismail a hawker who has not appeared, therefore Sahib Khatoon's version that she was got released from Dossa appellant on the intervention of people at bus-stand Sargodha falls to the ground. There is Mst. Sahib Khatoon's solitary statement against Dossa that he had abducted and raped her. On her own showing she travelled with Dossa from place to place.
No mark of violence was found on her person by the medical witness which suggests that she was a consenting party. Her age on prosecution's own showing was 15 years and about 9 months at the time of her abduction. It means that she had reached the age of discretion at the relevant time.
Therefore, it can be reasonably inferred that Mst. Sahib Khatoon had an affair with Dossa. She deserted her parent's house and eloped with Dossa and has been sharing his bed till she returned to the house of her parents. In the circumstances, no offence under section 366/376, P.P.C. Is established against him beyond reasonable doubt. The result is that the conviction and sentence of Dossa appellant under section 366/376, P.P.C. Is not sustainable.
10. For the foregoing reasons this appeal is accepted and conviction and sentence of all the appellants is set aside and they are acquitted. Gulla and Altaf are on bail. They are discharged from their bail bonds.