(1) Karim Dad, (2) Sh. Ahmad, (3) Rabnawaz, (4) Ata Muhammad; (5) Mst. Hamida Bano, (6) Mst. Lal Bibi and (7) Muhammad Yaqub, were tried under section 366/376, P. P. C. Petitioners Nos. 1 to 4 were sentenced to two years' R..I. Each under section ?66, P.. P. C. And three years and nine months' R. I.
Under section 376, P. P. C. Each while petitioners 5 to 7 were convicted under section 364, P. P. C. And sentenced to two years' R.
1. Each, by the order dated 19-10-1971 of the learned Magistrate Section 30, Isa Khel. The sentences in respect of petitioners 1 to 4 were directed to run concurrently. They filed an appeal which was dismissed by the learned Sessions Judge, Mianwali vide his order dated 12-1-1972. Hence this revision petition.
2. Briefly the prosecution case is that at about Khuftanwela on the night between 9th/10th of August, 1969, Mst. Niaz Bibi was taken to the house 6f Suleman (P. W. 1) in connection with the marriage ceremony of his son or daughter by Mst. Hamida Banu and Mst. Lai Bibi petitioners. At that time Ahmad (P; W. 7), maternal -uncle of the abductee and Mst. Hayat Bibi (P. W 3), mother of the abductee, were present in the house. Before arrival of the female petitioners the abductee had worn the ornaments and was ready to go for the marriage ceremony. Mst. Niaz Bibi abductee did not return to her house on the following morning and they made inquiries about her whereabouts.
Ahmad P. W. Suspected some foul-play and searched for Mst. Niaz Bibi and met Abaidullah Khan (P. W. 9) who told him that be had seen the petitioners I to 4 armed with guns along with the abductee, who was wearing a burqa. Ghulam Hussain P. W. Also met Ahmad and he too told him that be had seen petitioners I to 4 along with Mst. Niaz Bibi abductee. . Ahmad P. W. Searched for the accused without any success and ultimately the report was lodged on 17-8-1969 at I0-30 a.m.
At Police Station Isa Khel, which was recorded by H. C. Muhammad Aslam (p, W. 10). The motive alleged in the F. I. R. Is that Mst. Hamida petitioner was having illicit relations with Abdullah, uncle of Mst. Niaz Bibi and the accused resented at and hence this occurrence.
3. About 20-days after the occurrence Mst. Niaz Bibi abductee returned to her house at morning time and she was medically examined by Lady Dr. Mrs, Ghulam Rasool (P. W. 6) and her statement under section 164, Cr. P.C. Was recorded by a Magistrate.
4. The petitioners pleaded not guilty to the charges and denied the prosecution allegations against them. They ascribed the case to enmity.They examined tyro witnesses in defence, namely, Inayatullah, Clerks D. H. Or is office as D. W. 1, who stated that the date of the birth of the abductee was April 1951 and Pir Muhammad Siddique as D. W. 2, who had stated that he did spot know the abductee and that she was never brought to him.
5. The case of the prosecution depends on the evidence of Ghulam Hussain (P. W. 2); Mst. Hayat Bibi (P. W. 3), Ahmad (P. W. 7), Mst. Niaz Bibi abductee (P. W. 8) and Ubaidullah (P. W. 9.),. I may straightaway mention here that besides Mst. Hayat Bibi, who is mother of the abducted Ubaidullah Khan and Ghulam Hussain P. Ws. Are also related to the abductee. Ghulam Hussain P. W. Has admitted in his statement that the abductee bad been married to his son. He has also admitted that Ghulam Ahmad is his brother and first. Jantan is his wife and the latter has a brother Zafarullab who is married to Taj Bibi, another sister of Mst. Niaz Bibi, abductee. As far as Ubaidullah is concerned Mst. Hayat Bibi Y. W. Has clearly stated that she knows Ubaidullah who belongs to their brotherhood. It is also strange that if these two witnesses, namely, Ghulam Hussain and Ubaiduilah had seen petitioners 1 to 4 taking away the abductee why then took no step whatsoever to inform the parents or other relations of the abductee who are equally related to them if these P.
Ws. Had seen the occurrence as stated by them, then I see no fan in lodging the F. I. R. Seven or eight days after the occurrence.
6. The prosecutrix was medically examined on 8-9-1969 at 12-30 p. m. By Mrs. Ghulam Rasul (P. W.
6), and she did not find any marks of struggle on the body of Mst. Niaz Bibi. Hymen was torn from either side. Vagina was wide. In the opinion of the Lady Dr. She was subjected to sexual intercourse.
Vaginal swa bs were taken for chemical examination which were found to be stained with semen.
7. According to the prosecutrix, her mother and her maternal uncle, the abductee returned to her house eight or 10 days after her abduction and this does not fit in with the prosecution case because she was medically examined a month after her abduction and in spite of the fact that she was raped by five male petitioners yet she did not offer any resistance as is clear from the testimony of the lady doctor. It indicates to my mind that the prosecutrix did not put up any resistance.
8. On going through the evidence of Mst. Niaz Bibi, the impression one gains is that she is a woman of easy virtue and in all probability was a consenting party. There is a string of rulings that conviction in a case of rape cannot be sustained on the bare statement of the prosecutrix.
Evidence of resistance to a sexual, intercourse forced upon her is completely lacking in this case. In the absence of struggle and marks of injuries found on the person of the prosecutrix or of the accused, it is difficult to hold that the sexual intercourse was done with the woman without her consent. None .Of the male petitioners was medically examined by the doctor. In a case of rape where the entire prosecution evidence rests on the testimony of the prosecutrix, it is not accepted at its face value where there are indications that the woman was a willing party. I also find from the evidence on the record that the prosecutrix was married to Abdur Razzaq son of Ghulam Hussain P.
W. About a month, and a half after she came to her house. The sum total of the evidence on the record, therefore, shows that the, girl bad left the house of her parents on account of her own free will as the age of the girl has been given by the doctor to be more than 16 years, the offence of abduction could not be brought home to the petitioners Even the offence of rape in these circumstances cannot be deemed to have been committed because the presumption would be that the intercourse was had with her consent.
9. On this view of the matter, I consider the evidence against the petitioners to be doubtful and giving them the benefit of doubt, I accept their revision petition and acquit them. Mst. Hamida and Mst. Lai Bibi petitioners are already on bail and their bail bonds stand cancelled. The other accused are in jail and they are to be released forthwith if not requires in any other case.