Anwar, Nazir alias Nazira, Shera, Muhammad Azam and Mst. Hussain Bibi were tried by a Section 30 Magistrate of Mandi Bahauddin under section 366/34, P.P.C. For the abduction of Mst. Naziran P.W.1.
Muhammad Azam absconded during the trial. The learned trial Magistrate, by his judgment dated 13-3-1984, convicted Anwar, Nazir alias Nazira, Shera and Mst. Hussain Bibi under section 366/34, P.P.C. And sentenced them to seven years rigorous imprisonment each. As regards Muhammad Azam, accused, he held that as the said accused was absconding the evidence against him would be read under section 512, Cr.P.C. After he was arrested.
2. The allegations in brief are that on 5-2-1979 i.e. Four days prior to the registration of the case, Mst.
Hussain Bibi, accused, came to the house of the complainant at about Digerwela and she took away Mst. Naziran P.W. To her house for sewing in the presence of Moonda, the complainant, and his were Mst. Bashtan P.W.6. The said Mst. Naziran P.W.1 did not come back till Shamwela to her house, upon which Moonda, the complainant, went to the house of the accused to inquire about his daughter. He was informed by Mst. Hussain Bibi, accused, that Mst. Naziran P.W.1 had already left for her house. The complainant went on searching his daughter and in the meantime Ghulam Dastgir P.W.3 and Mukhtar Ahmad given up P.W. Met him and informed him that his daughter had been taken away by Muhammad Anwar, Muhammad Azam, Nazir Ahmad and Shera, accused, and they saw them near the village. Upon this information, the complainant alongwith one Salehon went to the house of one Moonda, a, close relative of the accused, at village Chorund. The complainant requested the said Moonda to hand over his daughter i.e. Mst. Naziran P.W.1 to him, but he refused. Thus, this case was registered against the accused accordingly. After the investigation the said Moonda and his were Mst. Salehon were challaned under section 368, P.P.C.
The abductee Mst. Naziran P.W.1 was subsequently recovered from village Alipur Chatha from the custody of Muhammad Anwar, accused. She was medically examined and the said Muhammad Anwar, accused, was challaned under section 376, P.P.C. And all the present accused were challaned under section 364/34, P.P.C.
3. I Have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards the abduction, is furnished by Mst. Naziran P.W.1, her father Moonda P.W.2 and her mother Mst. Bashtan Bibi P.W.6, together with that of Ghulam Dastgir P. W.3, the Wajtakkar witness. Moonda P.W.2 and Mst. Bashtan Bibi P.W.6 stated that Mst.
Hussain Bibi, appellant, came to their house at about Digerwela and took away their daughter Mst.
Naziran P.W.1 to her house for sewing. Since she did not come back to her house till Shamwela, Moonda P. W.2 went to enquire about her from Mst. Hussain Bibi, appellant, who informed him that she had already left for her house. Moonda P.W.2 then went on searching for his daughter and in the meantime was informed by Ghulam Dastgir P.W.3 and Mukhtar (given up P.W) that his daughter had been taker away by Anwar, Muhammad Azam, Nazir and Shera, appellants, when they had seen near the village. He also testified to her recovery from the custody of Anwar, appellant. Moonds P.W.2 confirmed in cross---examination that Shers, appellant, had sought the hand of his daughter Mst. Naziran P.W.1 for his son Anwar, appellant, which request he had turned down. He also admitted that Mst. Hussain Bibi appellant, had been visiting his house earlier and taking Mst. Naziran P.W.1 to her house. Mst. Naziran P.W.1 in her evidence confirmed the story that she was taken away by Mst. Hussain Bibi, appellant, to her house, for the purpose of sewing, where she kept sewing till Shamwela, and that when she stepped out of the house of the said lady to return to her house, Anwar, Nazir, Shera and Muhammad Azam, appellants, were present outside with their mares and that Anwar, appellant, caught hold of her and lifted her on to one mare and got on that mare himself and then rode away with her and the others to village Chorund, where she was kept for 3-4 days and raped by Anwar, appellant, and that thereafter she was taken in a wagon brought by Nazir, Muhammad Azam and Shera, appellants, and taken to a place in the jungle, where she was again detained for 3-4 days and raped by Anwar, appellant, till her recovery by the police. In her cross-examination she stated that earlier she had never been to the house of Mst. Hussain Bibi, appellant, for sewing, though the said appellant had previously been visiting her house. She stated that there were 18-19 houses in between her house and that of Mst. Hussain Bibi, appellant. She further stated that the whole street belonged to the accused party, where they were standing with their mares. She also stated that next to the house of the appellants were the houses of the paternal-cousins of the appellants. She admitted that in between her house and the place from where "she was lifted, there was a mosque, a few shops and the house of a Machhi. She admitted that the appellants had two mares and that they were standing with their mares and that she was lifted on to the mare and her mouth was gagged so that she could not raise alarm.
She stated that she had no knowledge whether anybody had seen her being lifted and carried away by the appellants, as at that time it had--- become dark due to sunset. She finally admitted that before the occurrence she had been visiting the house of the appellants and that they had been visiting her house. She denied that she had left ten house of her own free will and accord.
Ghulam Dastgir P.W.3, who is a Wajtakkar witness, confirmed the fact that he had seen the four male appellants riding away on mares with Mst. Naziran P.W.1 at Shamwela. He stated that there were four mares, that Anwar, appellant, and Mst. Naziran P.W.1, were on one and Nazir, Shera and Muhammad Azani, appellants, on three others, that Mst. Naziran P.W.1 was raising alarm and that when he tried to enquire from her what was the matter about, she was spirited away. He admitted in cross-examination that he and Mukhtar (given up P.W.) were related to Moonda P.W.2 and he had a dispute with Nazir, appellant, and his father over thirty-seven Acres of land, in respect of which fights had taken place and there had been criminal cases. He further stated that they never raised any alarm when saw the girl being abducted, because there was nobody present. Raja Muhammad Sarwar S.I. P. W.4 testified to his investigation of the case and the recovery of Mst.
Naziran P. W.1 from the custody of Anwar, appellant. He produced the abductee before the Ilaqa Magistrate where her statement under section 164, Cr.P.C. Was recorded, affirming her abduction by Anwar and others, appellants, and rape committed on bar by Anwar, appellant, in particular.
There is material discrepancy in the statements of Mst. Naziran P.W.1 and Ghulam Dastgir P.W.3 regarding the number of mares and whether the former was gagged, so that she could not raise alarm. It is not possible to believe that Mst. Naziran P.W.1 was gagged initially when lifted on to the mare, but that later after some time the appellants found no necessity A to keep her gagged and that when she was seen by Ghulam Dastgir and Mukhtar Ahmad (given up P.W.) she had the opportunity to raise alarm. It is also not possible to believe that initially when Mst. Naziran P.W.1 was lifted, there were two mares, but on the way the appellants happened. To pick up two more. It is also not possible to believe that when Mst. Naziran P.W. Was being spirited away from the house of Mst. Hussain Bibi, nobody saw her, though the appellants rode through the street containing many houses, shop and a mosque. The evidence of Mst. Naziran P.W.1 shows she was taken from place to place, but she made no attempt to escape. Her conduct suggests that she was a consenting party and that she went with Anwar, appellant, of her own free will and accord. It is an admitted position that her hand was sought by Shera, appellant, for his son, Anwar, appellant, and that otherwise also both the families were on visiting terms. The evidence does not unequivocally subscribe to the view that Mst. Naziran P.W.1 was abducted against her wishes, in the manner alleged by the prosecution.
The appellants are, therefore, entitled to the benefit of doubt.
5. For the foregoing reasons, this appeal is accepted and the conviction and sentences of Anwar and others, appellants, are set aside. They shall be released forthwith, if not required in any other case.