The seventeen appellants have been convicted under sec--tions 148, 452/149, 366/149, 323/149 and 324/149 of the Pakistan Penal Code. They were sentenced to one year's R. I. Each under section 148, P. P. C: to three years' R. I. Each and a fine of Rs. One thousand each under section 452/149, to four years' R. I. Each under section 366/149, to six month's R. I. Each under sec--tion 323/149 and to two years' R. I. Each under section 324/149 P. P. C. The appellants, Rehm Ali and Khadim Hussain were, in addition found guilty under section 376, P. P. C. And were sentenced to undergo rigorous imprisonment for a period of four years' each. The sentences of all the other appellants were to run concurrently but in' case of the last two mentioned appellants were to run consecutively. The appellants were to undergo further rigorous imprisonment for six months in case of default of pay- -ment of fine imposed under section 452, P. P. C.
2. The occurrence took place on 23rd of September 1966, at about noon time in Mauza Inayatpur, Basti Miani, Police Station Jalalpur Pirwala, in the District of Multan. Out of the appellants, Ramzan son of Budhu, Pir Bakhsh and Rehm Ali were armed with hatchets while the others were armed with dangs. Eight of the appellants, namely, Ramzan, Pir Bakhsh, Ahmad Bakhsh, Sarwar, Manzur, Khadim, Mulazam and Ghulam Ali entered the kotha of Muhammad Ramzan P. W. And lifted Mst.
Zohran (P. W. 1) forcibly. Her dopatta and her loin cloth fell down as she was lifted. The remaining appellants stood at the gate of the kotha. Muhammad Ramzan (.P. W. 2), Mst. Ghulam Sakina (P. W.
5) wife of Muhammad Ramzan and Abdur Rehman (P. W. 6), a brother of Muhammad Ramzan (P.
W. 2) tried to interfere but all of them received injuries at the hands of the appellants who had entered the kotha. The hatchet blows given to Muhammad Ramzan and Abdul Rahman P. Ws. Were parti--cularly ascribed to Ramzan son of Budhu and Pit Bak sh appellants respectively.
3. Ghulam Qadir and Wahid Bakhsh came to the haveli on hearing the noise. The three injured persons were examined at the Jalalpur Pirwala Hospital and after obtaining the medico legal reports, Muhammad Ramzan (P. W. 2) went to the police station and got recorded the F. I. R. Exh. P.
A. At 6-30 p. m. On the same day. The d1stance between the place of occurrence and the police station is six miles.
4. Mst. Zohran is an orphan and had been brought up by her maternal uncle Muhammad Ramzan (P. W. 2). She was married in her infancy to Khadim Hussain appellant, but had never been to his house. The marriage, therefore, according to the prosecution, was never consummated. She had repudiated the marriage and had filed a suit to that effect. We learn from the F. I. R. That 25th of September 1966, had been fixed for the hearing of the case. Mst. Zohran has also inherited some property. The case of the prosecution is that the institution of the case for dissolution of marriage so exasperated Khadirn Husain that he along with the other appellants, who are stated to be his relatives, E abducted Mst, Zohran in the manner described above.
5. A. S. I. Sam. Ahmad Bakhsh of Jalalpur Pirwala Police Station. Reached the spot on the evening of 23rd of September 1966 Dopatta (Exh. P. 1) and ghagra (Exh. P. 2) of Mst. Zohran Were produced before him on 24th of September 1966, and were taken into possession vide memo. Exh. P. G. The appellants were arrested on various dates, and except Khadim, Rehm Ali and Ghulam Sarwar, produced their respective weapons of offence. This recovery, however, is not to any way helpful to the prosecution because there is no evidence that these weapons were used in the commission of the offence.
6. Khadim appellant was arrested on 17th of October 1966 at the bus stand of Lodhran. He was found with Mst. Zohran P. W. The abducted girl, Rehm Ali and Ghulam Sarwar were arrested on 28th of October 1966. Mst. Zohran (P. W. 1.) was produced in the Court of Mr. Muhammad Amir Ansari, Magistrate Section 30. Multan, on 20th of October 1966, for making a statement under section 164 of the Criminal Procedure Code. Site was medically examined cart 21st of October 1966. She was got X-rayed for her age at the Nishtar Hospital, Multan, on the same day. According to the statement made by the prosecutrix under section 164, Cr. P. C, and at the trial, she was forcibly taken away from the house of Muhammad Ramzan by Sarwar, Manzur, Khadim; Mulazam, Pir Bakhsh alias Piru, Ramzan Ahmad Bakhsh and Ghulam Ali appellants. Pir Bakhsh alias Piru and Ramzan were armed with hatchets while the other were carrying sotas. Seven or eight person, accompanied them, but they did not enter the kotha and stayed outside. The eight appellants, named by her, lifted her forcibly and her depotta and loin cloth got separated from her body and fell down at the spot. She was carried away in nude condition by the above named appellants. Muhammad Ramzan Abdur Rehman and Mst. Ghulam Sakina P.Ws. Tried 10 intervene but they here beaten by these appellants.
When she was brought out of` the kotha, the other appellants also joined. Site was unable to identify any one of these appellants. She was first taken to the House of Fazil, father of Khadim Hussain appellant, which is situated in Basti Ranuja in the area of Mauza Inayatpur and is at a distance of -- or --mile from her house. When she complained it, Fazil the father of Khadim appellant she was given a slap. She was kept there for one night. Then Khadim and Sarwar appellants and one Hamza took her to the house of Jalal to a place called Basti Bhinda. She told Jalal, his wife Mst. Murad Khatoon and his son Hazoora that she had been forcibly abducted, but they did not listen to her. She was kept there for two days in the sahal of Jalal. During this period, Sarwar and Khadim appellant, and the aforesaid Hamza remained there. On the third day she was escorted by Jalal, Murad Khatoon and Hazoora to the place of Nawaz and Sarfraz across the pattan called Bakhirwala. The girl, on reaching the place of Nawaz and Sarfraz, repeated the complaint, by nobody listened to her. She was shut up in a sahal bill was taken out on the next day and was confined in another sahal. She was taken out from that sahal the same day and at that time Rehm Ali, Sarwar kind Khadim appellant, also joined her. The three above named appellant, and Nawaz, Sarfraz and Hazoora took her further to the sahal of Ghulam Rasool Lurki, but the witness was not able to name the Mauza where this sahal was situated. She was kept there for tax or seven days. During all this period, Sarwar and Khadim appellants remained there. She complained to Ghulam Rasul Lurki the owner of the sahal about the whole matter. He, in his turn, demanded Rs. 100 from Khadim and Sarwar appellants and told them that if they do not pay that amount, the would restore the girl to her maternal uncle. Sarwar paid Rs. 100 to Ghulam Rasu1 Lurki.
Two persons, namely. Murad Shah and Baggu joined Sarwar and Khadim at that place. On the 5th or 6th day, Khadim, Sarwar and Rehm Ali appellants and Murad Shah, Baggu, Haxoora. Ghularn Rasul Lurki. Nawaz and Sarfraz took her out of the roofless kotha of Ghulam Rasul Lurki and made her walk to the Panjnad Head. The girl raised noise but Ghulam Rasul threatened her with dire consequences and she kept quiet. From the Headworks, Baggu, Ghulam Rasul, Nawaz and Murad Shah went a way, and Rehm Ali, Khadim and Sarwar appellants and Hazoora took her to Bahawalpur in abus. She was confined in a kotha at Bahawalpur in a locality which is on the outskirts of the city. In that kotha Rehm Ali and Khadim appellant, and Hazoora committed rape on her. She was kept in this kotha for five or six days and all the three were committing rape on her during these days. Sarwar appellant was also there but he did not commit the rape. At the end of fifth or sixth day , Rehm Ali, Khadim and Sarwar appellants alongwith Hazoora brought the girl to Lodhran in a bus. She was left with Khadim Hussain and the three others returned to Bahawalpur in order to find a suitable accommodation because they had not been able to find anyone in Lodhran. The girl saw a uniformed Police Officer in one of the lorries at the bus stand and on seeing him she shouted and made a noise that she had been abducted. The Police Officer came out of the lorry and at her pointing out he arrested Khadim Hussain. She was brought to the Police Station Jalalpur Pirwala where her statement was recorded. Subsequently, she was produced before a Lady Doctor for examination and before a Magistrate for her statement. She pointed out to the police all the places where she was taken by the accused from time to time.
6. The medical examination of the prosecutrix was conducted by Lady Doctor Miss Miss Mumtaz Iqbal (P.W. 11). She found healed lateral tears in her hymen. Two vaginal swabs were taken which according to the Chemical Examiner were found stained with semen. According to the Lady Doctor, semen could be detected by means of swabs after two or three days of the intercourse. She was also not able to and stated that it might be months or years.
Dr. Mushtaq Ahmad Assistant Radiologist Nishter Hospital, Multan made Ex-ray examination of Mst.
Zohran for determination of her age. During cross-examination he admitted that maximum limit of her age on the day of examination could go up to 15 -- years.
7, The prosecution apart front producing Mst. Zohran (P. W. 1), reliedonthe evidence of Muhammad Ramzan (P. W. 2), Mst. Ghulam. Sakina wife of Muhammad Ramzan (P. W. 5), Abdur Rehman a brother of the aforesaid Muhammad Ramzan as P. W. 6 and Wahid Bakhsh (P. W. 7) who is also a real uncle of .Mst, Zohran (P. W. 1), ill order to prove the factum of abduc--tion. Abdullah (P. W. 8) and Sulaiman (P. W. 9) are the witnesses of the recovery of dupatta (P.1) and ghagra (P. 2).
Sulaiman (P. W. 9) also deposed to the recovery of the various weapons of offence. Abdullah above named is the husband of the s1ster of Muhammad Ramzan. P. W. While Sulaiman is a real brother of Ramzan P. W. Jam Ahmad Bakhsh A. S. I. (P. W. 10) investigated the case anti challaned the appellants.
8. Khadim appellant stated at the trial that he was married to Mst. Zohran who had come to him of her own accord because Muhammad Ramzan and Mst. Sakina wanted it, deprive her of her property. He stated that he had no knowledge of the institu--tion of the suit of dissolution of marriage against him but had received the summons front the court concerned after the occurrence. The appellants, stated that they were involved because of their relationship with Khadim appellant. Pir Bakhsh and Amir Bakhsh, also pleaded alibi and stated that they were present it the Union Council of Hatheji, Mauza Haji Jhabail. Tehsil Ahmadpur Sharqia. District Bahawalpur where they had gold to purchase a bullock. 'They also stated that they were involved because their father filed an appeal against Muhammad Ramzan and Abdur Rahman regarding consolidation of land the defence cave also was that Mst. Zohran had voluntarily made statement Exh. D. H, before Mr. Ziaul Hassan Qureshi. Magistrate First Class, Bahawalpur. In proceedings relating to an application under section, 107, 151, Cr. P. C. Filed by her, wherein she had stated that she had come to Khadim of her own accord. The application was dismissed in defaulton24th of October 1966.
9. Tile appellants also produced defence. Jam Ghulam Sarwar (P. W. 1) and Rasul Bakhsh (P. W. 2) were produced its support of the plea of alibi raised by Pir Bakhsh and Amir Baklish. The two witnesses stated that a bullock was sold to the two appellant, in Mauza Haji Jhabail in the area of Ahmadpur Sharqia, and receipt Exh. D.G. Was executed. Muhammad Hakhsh (D.W.3) appeared to slate that no occurrence as alleged by (lie prosecution had taken place and that the d1stance between Basti Ranuja and Basti Miani of Inayatpur was about half a mile. Jam Ghulam Hussain (D.
W. 4) was produced to contradict the statement of Jam Ahmed Bakhsh A. S. I. That Jam Ghulam Husain was with him when lie arrested Khadim appellant. It was admitted by this witness that the Sub-Inspector might be accompanied by a person bearing the same name. Wali Muhammad (D.W. 5) was produced to state that Ahmad Bakhsh appellant had it joint khata with Muhammad Ramzan and Abdur Rehman; P.Ws, and there was dispute between them on that score. Allah Bakhsh (D.W. 6) madea statement on the same lines. Manzur Ahmad (D.W. 7) Reader of the Court of Mr. Ziaul Hassan Qureshi produced the file containing the statement Exh. D. H. Of` Mst. Zohran in connection with her application filed under sections 107/151, Cr. P. C. D.W. 8 Veer Din supported the plea of alibi of Amir Bakhsh and Pir Bakhsh. Syed Mukhtar Ali Shah (D. W. 9) of the Finger Print Bureau appeared to prove that the thumb-impression on Exh. D. H. Was that of Mst. Zohran.
10. Mr. Ismail Bhatti, the learned counties for the appellants, raised the following points:--
(i) that Khadim appellant having been admittedly married. To Mst. Zohran, the ingredients of alt offence under section 366, P. P. C. Are lint present and no conviction could be- based on that count;
(ii) that the prosecution witnesses. Muhammad Ramzan and Ghulam Sakina wanted to deprive Mst. Zohran of her land, and the plea of Khadim that Mst. Zohran had gone to him of her own accord is, therefore, correct ;
(iii) that Mst. Zohran made her statement before the Magistrate three days after her custody had been taken by the police and this circumstance indicates that the statement was made under the police pressure and
(iv) all the 17 appellants, said to have taken part in the commission of the offence could lint be identified in the melee that ensured and the false inculpation of them could not be ruled out. Since it is not known its to which of the appellants have been falsely Implicated, all of them deserve acquittal.
11. I will first deal with the legal point raised by the learned counsel. The evidence led by life prosecution clearly shows that the Zuhran was married to Khadim appellant when she teas all Infant, but she had never been to his house. She had filed suit for dissolution of her marriage, in which 25th September 1966, lead been filed a. The date of incident. It is not the case of Khadim appellant that Mst. Zohran had ever come to his house a wife earlier titan the date of, incident. It is, therefore, safe to presume that there was no consummation of the marriage which was effected in the childhood of Mst. Zuhran and the suit filed by her was to seek the confirmation of the option of puberty which he had exercised by repudiating the marriage with Khadim. The learned Counsel relied on the Nura v. The State (PLD 1960 La h. 5 3) for the proposi--tion that where a woman is forcibly taken to the house of her husband and is compelled to live with him against her will, the ingredients of an offence under section 365 or 366 are not proved. It was argued that the essential elements of all offence, section 366 are that the intention should be to compel the abductee to enter into a marriage or him illicit intercourse against her will. The learned counsel urged that the abduction having taken place at the instance of husband, no offence finder section 366, P.P.C. In law, is made out.
12. The facts of the case relied upon by the learned counsel are quite different from those of the case before me. In the present case, there was no consummation of marriage and the girl half exercised the option of puberty by repudiating the marriage and the girl at the maximum was estimated to be 15-- years. She could under the law exercise the option of puberty to the age of eighteen years. According to the Muslim Law, there is an automatic of the international relationship when the girl exercises the option of puberty. It is not necessary that in order to give legal force to the repudiation if marriage a decree should be obtained from a civil Court. Reference in this connec--tion may be made it Muhammad Bakhsh v. Crown mill others (PLD 1950 Lah. 203 and Mst. Muuni v, Habib khan (P L h 1956 Lah, 403It was held in these two cases, that repudation of marriage by exercise of option of puberty puts an end to the marriage without the aid of any Court and that the Courts order is not essential for Imparting validity to the exercise of option of puberty.
To the same a effect is the case of Mofeezud Din v. Rahiman Bibi (AIR 1934 Gal. 104). The marriage ill this case stood dissolved as soon as the girl exercised the option of puberty or at least on the day when the suit was instituted which was certainly before the state of` occurrence. It was proved front the evidence before me that the girl was forcibly lifted, the clew intention that can be inferred from this let is that this was in order to compel her to have intercourse at least with Khadim to whom she had been married ill her childhood. He legal argument of the learned counsel, therefore fails. Even it the conviction under section 366 be not sustainable, the forcible and secret detention of the girl from 23rd of September 1966 to 17th of October 1967 is sufficient to warrant aconviction under section 365 or section 344 read with section 346 of the Pakistan Penal Code.
13. The other points deal with the merits of the case. Mst. Sakina P. W. Wife of Muhammad Ramzan is consanguine sister of AN. Zohran. Their mothers were different, and it may perhaps be a justifiable inference that the father of Mst. Zohran married her mother after giving Mst. Sakina, his daughter from his first wife, in exchange to Muhammad Ramzan. Mst, Zohran is admittedly tile owner of about 10 to 12 bighas of land, but it is not clear as to whether she got this land from her father or her mother. She denied that she had gifted any land in the name of" 31st. Sakina, but Muhammad Ram/.An had admitted that a gift of 7 or 8 acres of land had been made by Mst. Zohran in favour of Mst. Sakina, his wife. The suggestion that she hack left the house of Khadim after the mutation, was, however, denied by this witness. It was also denied by Muhammad Ramzan that there was sonic litigation between him and Ghulam Haider the father of Amir Bakhsh and Pir Bakhsh appellants with regard to the consolidation proceedings. He stated that lie had not received any process and he, therefore, could trot .Ay whether any appeal had been tiled against him by these appellants.
Mst. Sakina stated that her sister had sold sonic land to her two months before the occurrence because she wanted money to finance the litigation she had started against her husband for dissolution of marriage. The above resume of the evidence shows that there was some sort of transfer of property by Mst. Zohran in favour of her sister, but the defence has not brought the alleged mutation on record, and we do not know when and under what circumstances the transfer was made. It is improbable that the girl who had been brought up by her maternal uncle and her step-sister would leave the house on this account, especially when she had filed a suit for dissolu-- tion of marriage against her husband. The fact, whether any property was transferred by Afst.
Zohran in favour of` her sister would, therefore, be inconsequential` in determining the guilt or innocence of the appellants.
15. The prosecution witnesses, except Mst. Zohran, implicated all the seventeen appellants. Mst.
Ghulam Sakina stated that she knew all of there as they were related to Khadim Hussain appellant The prosecutrixherself, ha, named only eight person, and frankly stated that she did not recognize the co-accused of her abductors who were standing outside the kotha. The fact that the three prosecution witnesses, namely, Muhammad Ramzan Ghulam Sakina and Abdur Rehman had injuries on their person., would corroborate their testimony with regard to the actual occurrence although it may, not prove that all the. Seventeen accused had taken part in it.
15. There is some force in the contention of the learned counsel that in that short interval of time when this occurrence took place, it was not possible for the eyewitnesses to spot each one of the participants in the commission of the crime. The evidence of the prosecutrix appears to me to be nearer truth and is very straightforward. She has clearly named the eight persons who entered in the house and forcibly lifted her. I do not find any force in the argument of the learned counsel that she had made her statement under duress from the, police If this had been sir she would have named all the seventeen appellants. Which according to the F.I.R. Had participated in the commission of the offence there is no reason to believe that while .He remained with the police, she was tutored to support the prosecution case. I, therefore, hold that the eight appellants named by the prosecutrix did participate in the commission of the offence. The case is also proved against Rehman Ali who was moving with tile girl froth place to place and was specifically named by her There were certainly some other persons besides the above appellants with them at the commission of the offence, but since the pro--secutrix has not identified anyone of them I would give the benefit of doubt and acquit them.
16. A brief reference is necessary to Exh. D.H. a statement said to have been made by Zohran before a Magistrate in connection with tier application under section 107/151, Cr. P. C. In this application Mst. Zohran is stated to be residing at Dera Bakha, which is, of course a false description of tier residence.
In the statement, itself'. It is said that she came to khadim appellant about two months ago, but on 5th of October 1966, the appellant Wahid Bakhsh etc. Came to her house and wanted to take her away. No lawyer appeared in these proceeding. The statement is admittedly in the hand of the Reader arid the learned Magistrate. In whose presence it is said to have been recorded, was not examined. The presence of the applicant was not recorded by the leaned Magistrate before the evidence seas recorded. Mst. Zohran was nut confronted with this document and the Only question put to her was that site had made a statement at Bahawalpur which suggestion was denied. The defence has not, therefore, been able to prose that this was a voluntary statement made by Mst.
Zohran.
17. The conviction under section 376. P. P. C. Is based on the solitary statement of the girl. The Lady Doctor gave an opinion that the healed tears might he months or years old. She also stated that the semen could b4 detected within two or three days after fl,: intercourse. The girl was recovered on 17th of October 1966 and was examined by the Lady Doctor on 19th of October 1966, at .1-10 p. In.
It, therefore, cannot be positively said that the vaginal swabs which were found to have been stained with semen, connect Rehm Ali and Khadim appellants with the commission of the offence of rape. It is also to be pointed out that Hazoora who was also said to have raped His Mst. Zahroon, was not at all prosecuted for this offence. Perhaps it may be presumed that after her abduction, Khadim must have had sexual inter--course with her, but a presumption cannot take the place of positive evidence, and I do not think it safe to maintain the conviction of Rehman Ali and Khadim under section 376, P. P. C. On the state of evidence before me.
18. The result therefore is that Ramzan son of Hasan, Faiz Bakhsh. Mubarik Ali Muhammad Nawaz.
Allah Ditta, Amir Bakhsh. Rahim Bakhsh and Allah Diwaya appellant are acquitted of all charges.
They shall be set at liberty unless they are required to be detained legally in some other case. The conviction and sentence passed on Khadim and Rehman Ali under section 376, P. P. C. Are set aside. The convictions and sentences of Khadim, Ramran, seen of Budhu. Ghulam Ali, Manzur, Ahmad Bakhsh. Pir Bakhsh alias Pirti. Mulazim Hussain, Ghulam Sarwar and Rehm Ali under sections 1411, 452/149, 366,/ 149, 323/ 149 & 324;' 149, P. P. C. Are maintained. Since the abduction took place for the benefit of Khadim, and, other appellants, whose conviction has been upheld, acted according to his wishes, their sentence under section 366. P. P. C. Is reduced to three years each.
The sentence of four years' awarded to Khadim on this count will stand. The appeal is disposed of accordingly.