Mst. Surraya Begum wife of Mohammed Yaqub aged 28 years resident of Dhok Khaba in Rawalpindi City, Mohammad Siddiq son of Muhammad Mustaqim aged 23 years, resident of Gujranwala City, Ghulam Mustafa alias Javed son of Khair Din aged 22 years resident of Sheikhu-- pura City, Mst. Sardar Begum wife of Barkat A.I aged 35 years resident of Mandiala Waraich District Gujranwala, Mst. Naziran Begum wife of Khadim aged 32 years resident of Chauk Chashma Gujrnwala City and Rehmat A.I son of Barkat A.I aged 35 years resident of said Nagari Bazar, Gujranwala City were jointly tried by Ch. Muhammad Siddiq, then Magistrate Section 30, Gujranwala on separate charges arising out of the abduction of Mst. Shamim Akhtar (P. W. 4), who found them guilty and convicted them as under on 3rd of August 1968.
(1) All except Rehmat Ali Under section 366, P. P. C. with a sentence, of R. I. for five years each.
(2) All except Ghulam MustafaUnder section 367, P. P. C. with a sentence, of R.I. alias Javed and Rehmat Ali.for five years each.
(3) Mohammad Siddiq Ghulam, Under section 376, P.P.C. with a sentence of R.I.
Mustafa alias Javed and Rehmatfor five ears each and eighteen stripes each Ali only.Subject to their medical fitness.
The three sentences of imprisonment awarded to some of them were however directed to run concurrently. To question the correctness of these orders they have filed four separate appeals, Criminal Appeal No. 605 of 1968 was jointly filed on behalf of Mohammad Siddique, and Ghulam Mustafa alias Javed, Criminal Appeal No. 606 of 1968 by Rehmat A.I and Mst. Naziran Criminal Appeal No. 613 of 1968 by Mst. Sardar Bibi and Criminal Appeal No. 699 of 1968 by Mst. Surraiya appellant. At the time of the admission of Criminal Appeal No. 606 of 1968 my learned brother Sardar Muhammad Iqbal, J. (now the Chief Justice) was pleased to issue a suo motu notice to all the convicts for enhancement of their sentences which was registered as Criminal Revision No. 853 of 1968 and all these matters are being disposed of by this single judgment.
2. The prosecution case originally reported to the police by Muzaffar Hussain (P. W. 1) through a written report (Exh. P. A.) presented to Bashir Ahmad Assistant Sub-Inspector (P. W. 13) at police station 'B' Division Gujranwala on 16th February 1967 at 3-15 p.m. Was that his daughter Mst.
Shamim Akhtar (P. W. 4) aged about 13 years had disappeared front his house due to her mental derangement since 13th February 1967 and in spite of best efforts he had failed to trace her out although he bad come to know that she was taken away from Gali Arainwali by some unidentifi-- ed woman. A case under section 363, P. P. C. Was consequently registered by him vide Exh. P. A./1 which forms part of this record as the first information report. She remained untraced till 28th February 1967 when Muhammad Siddiq and Ghulam Mustafa alias Javed contacted Muhammad Azam (P. W. 5) at the shop of Muhammad Shafi (given up P. W). And told him that they had abducted Mst. Shamim Akhtar P. W. And he should use his good offices in persuading Muzaffar Hussain P. W. To compromise the affair with them, who asked them to produce the abductee to facilitate the, matter. On being disappointed by his attitude they also approached Khuda Bakhsh (P. W. 9) on the same evening with a proposal that he should induce Muzaffar Hussain P. W to consent to the marriage of Mst. Shamim Akhtar P. W. With their brother Mohammad Hanif (accused since discharged), who likewise advised them to restore the abductee, but they did not comply with his advice either witnesses are said to have immediately informed tire police about it who obtained the warrants for the arrest of Muhammad Siddiq and Ghulam Mustafa alias Javed, but the two appellants seemed tea have gone underground in the meanwhile. Muhammad Siddique appellant was however, arrested on 4th March 1967 and Ghulam Mustafa alias laved on 9th March 1967, while Mst. Surraya was taken into custody on 18th March 1967 but the police failed to recover the, abductee front the custody of either of them. She however, returned to her own accord on 27 March 1967 and was produced on the same day before Sub-Inspector Nemat A.I (P. W. 12) who recorded her statement (Exh. D. B) giving a detailed account of the misfortune that had befallen upon her including the story of her daring escape from the clutches of a Pathan then living in Layallpur.
She had disclosed in this statement that she had gone to Chhurianwala Bazar along with her sisters Kist. Mussarat (P. W. 3) and Mst. Ishrat to purchase ear-ring on the eventful day, where she met a woman sitting on the shop of a cloth merchant (Hidayat A.I P. W. 8). She did not know her originally but later identified Mst. Surraya (appellant) as that woman who asked her to guide her to Thanewala Bazar. She complied and led her to that bazar, where Mst. Surraya (appellant) threw a handkerchief on her, the smell of which made her semi conscious impairing her power of speech.
She was then taken to the shop of Rehmat A.I appellant a shoe merchant who carried her to its back portion and committed rape on her. Mst. Surraya appellant got some money and a pair of shoes from him in return. She then took her ahead in the bazar and came across a tonga parked on one side with Mst. Sardaran, Mst. Naziran, Ghulam Mustafa alias Javed and Siddiq appellants sitting in it. Mst. Surraya appellant put her in that tonga and they carried her to a quarter near khota pulls from where Mst. Sardaran and Mst. Naziran appellants returned. During the following night Muhammad Siddiq and Ghulam Mustafa alias Javed appellants putting her under fear of death committed rape on her. On the next day Mst. Surraya, Muhammad Siddiq and Ghulam Mustafa alias Javed appellants took her to the quarter of Ghulam Mustafa alias Javed in Muridke.
One Shabbir had also joined them there and all three of them committed rape on her turn by turn on that day and during the next night. Mst. Sardaran and Mst. Naziran appellants also joined themth there and all of them except Ghulam Mustafa alias Javed later carried her to Lahore where they contacted some Pathans near Yateemkhana and sold 'her to one of them for Rs. 3,000.00. Who took her to Layallpur. This Pathan had proposed her marriage with his son and expressed his desire for getting her statement recorded by a Magistrate about it but she declined. He lived in jhuggis with some ladies who guarded her. One day the Pathan and his womenfolk had gone to bazar for making some purchases when she escaped from the jhuggis and reaching the Railway Station approached a well-to-do person and sought his help in. The matter who put her on a bus bound for Gujranwala and reaching her house told this tale of who to her mother and she in her turn produced her before the police.
3. She was medically examined by Lady Dr. Zahida Ijaz on the same day, who found her hymen torn by-laterally with no external marks of injury on her private part and her vagina, admitted two fingers loosely indicating an old case of sexual intercourse. Her report is Exh. P. B. She advised X-Ray examination to fix her approximate age which was performed by Dr. Muhammad Iqbal, who opined vide his report Exh. P. R. That she was about 15/16 years of age.
The police also recorded the statement of Mst. Musarrat P. W. The younger sister of the abductee, who led the police to the shop of the said cloth merchant (Hidayat A.I P. W. 8) from where Mst.
Shamim Akhtar was carried away by a burqa-clad unidentified woman. Both of these witnesses Mst. Musarrat (P. W. 3) and Hidayat A.I (P. W. 8) had later identified Mst. Surraya appellant as that woman in a test identification parade held in District Jail Gujranwala under the supervision of Mr. M.
A. Lone, then posted tyre as a Magistrate.
4. Mst. Sardar Bibi and Mst. Naziran were arrested on 29th March 1967 while Rehmat A.I appellant was taken into custody on 30th March 1967. On the completion of the investigation all the six appellants were put on trial resulting in their conviction as above.
5. The prosecution had relied for its case on the testimony of Muzaffar Hussain (P. W 1), the father, Mst. Jannat (P. W. 2) the mother, and Mst. Musarrat (P. W. 3) the sister of Mst. Shamim Akhtar, while the abductee herself was examined as P. W. 4, who had supported the above narration at the trial.
Hidayat A.I, the aforesaid cloth-merchant appeared as P. W. 8 and corroborated Mst. Musarrat and Mst. Shamim Akhtar about her accompanying Mst. Surraya appellant from near his shop on that day. Muhammad Azam (P. W. 5) and Khuda Bakhsh (P. W. 9) are the witnesses of extra judicial confession of Muhammad Siddiq and Ghulam Mustafa alias Javed who contacted them one by one with a request to persuade Muzaffar Hussain P. W. To compromise the case with them and to consent to the marriage of Mst. Shamim Akhtar with their brother Muhammad Hanif, the discharged accused.
6. Lady Dr. Zahida Ijaz who had examined Mst. Shamim Akhtar, the abductee vide Exh. P. B. And the other Dr. Sajjad-ul-Qayyum, who had certified the fitness of Rehmat A.I appellant for sexual intercourse had in the meanwhile gone abroad for further studies and were not available.
Their medico-legal reports were, however, proved by Abdul Razzaq (P. W. 7) Head Clerk, District Head quarters Hospital, Gujranwala who was conversant with their handwriting as he used to receive all the documents written and signed by them for consignment in the record of the office.
Dr. Muhammad Iqbal had, however, appeared as (P. W. 10) and proved the Sikagram Exh. P. D. And his opinion about the age of Mst. Shamim Akhtar Is Exh. P. E.
Mr. M. A. Lone, Magistrate 1st Class, Gujranwala, (P. W. 14) proved his report Exh. P. G. About the identification of Mst. Surraya appellant in jail by Mst. Musarrat and Hidayat A.I P Ws. The remaining evidence relates to the investigation of the case and arrest of the appellants by M/s. Noor Ahmad (P. W. 11) and Nemat A.I (P. W. 12) Sub-Inspector, Bashir Ahmad A. S. I. (P. W. 13) while Nazir Ahmad, Head Constable (P. W. 6) had proved the formal first information report Exh. P. A./1.
7. The appellants in their turn had denied all the above allegations made against them averring their false implication in the case on account of their enmity with the prosecution witnesses.
Rehmat A.I appellant examined Ghulam Mustafa, Muhammad Rafi, Ghulam A.I and Ghulam Muhammad D. Ws. In his defence, who stated that they had never seen Mst. Shamim Akhtar P. W. At his shop and that Nemat A.I Sub-Inspector had quarrelled with him about the payment of the price of a shoe some--time before the occurrence. Ghulam Mustafa alias Javed produced Yousaf A.I (D.
W. 5) in his defence, who deposed that this appellant bad appeared as a witness before the Conciliation Court at Kanwan Litoy in Sialkot District on 12th February 1967 and he had recorded his statement, copy of which is Exh. D. R. He also produced the relevant file of the case in the court.
Ghulam Haider (D. W. 6) had appeared on behalf of Mst. Sardaran and Mst. Naziran appellants, who deposed that he lived near their dera and had seen Mst. Jannat (P. W. 2) altercating with-- them sometime before this occurrence and he had intervened to separate them. Nasir A.I Shah (D.
W. 7,) gave good character to Mst. Sardaran, Muhammad Siddique, (D. W. 8) appeared on behalf of Mst. Surraya and deposed that he had seen the wife of the complainant Muzaffar Hussain (P. W. 1) quarrelling with Mst. Surraya near his tall and he had separated them when she had threatened Mst. Surraya that she would get her sent to the Jail in the near future. All this defence was, however, rejected by the trial Magistrate, who had accepted the testimony of Mst. Shamim Akhtar as corroborated by the evidence of Mst. Mussarat, Nemat A.I, Muhammad Azam and Khuda Bakhsh P.
Ws. As also by tit medical evidence to bring home the above charges against them.
8. This conclusion of the learned Magistrate was assailed before me as extremely erroneous and ill-founded due to the absence of any independent evidence to corroborate the solitary statement of Mst. Shamim Akhtar about the allegations made by her against the appellants. He has also challenged the admissibility of the secondary evidence of Abdul Razzaq (P. W. 7) about the medico-legal reports Exh. P. D. Of the Lady Dr. Zahida Ijaz and that of Dr. Sajjad-ul-Qayyum (Exh. P.
C.) about Rehmat A.I appellant on the ground that no evidence had been led by the prosecution to prove the issuance of any summons in their names or the report of the Constable entrusted with their service on them in order to show that the two witnesses had gone abroad and were not likely to return for their evidence without unnecessary expense and delay. It was also urged that some material evidence relied upon by the learned Magistrate to convict the appellants like the test identification parade in respect of Mst. Surraya appellant and the extra-judicial confession of Muhammad Siddique and Ghulam Siddique and Ghulam Mustafa alias Javed appellant had not been put to them during their examination under section 342 of the Criminal Procedure Code which had gravely prejudiced their defence.
9. On going through the record I am inclined to agree with these contentions of the learned counsel for the appellants and I propose to deal with them one by one.
According to Exh. P. A. The original report lodged with the police by Muzaffar Hussain P. W. His daughter Mst. Shamim Akhtar was an imbecile and had disappeared from his house due to her mental derange--ment, it did not mention at all that she had gone to the bazar on the eventful day along with Mst. Musarrat P.W. And her other sister Mst. Ishrat and that the latter two had returned to the house within a short time and had informed her mother Mst. Jannat (P. W. 2) that Mst. Shamim Akhtar had been taken away by a burqa-clad woman from near the shop of aforesaid cloth- merchant Hidayat A.I P. W. Which was apparently an improvement over the original case but the learned Magistrate seems to have given undue importance to their statements in the respect. The absence of the name of Mst. Musarrat, a child of about eight years from the original report as the person accompanying Mst. Shamim Akhtar at the time of her abduction could not permit of any implicit reliance on her. If it was true that Mst. Musarrat had immediately rushed to her nearby house and given this information to her parents they would have succeeded in tracing out Mst.
Shamim Akhtar P. W. As she had remained in the adjoining bazar for a considerable time, where Rehmat A.I appellant had committed rape on her in his shop. She was then taken to a tonga in the same bazar for onward journey to the khota pulll. This part of the story that Mst. Musarrat P. W. Had physically intervened when Mst. Surraya appellant had forced test. Shamim Akhtar to tied her to Thanawala Bazar and was given a slap by her was even otherwise quite improbable as such a scene would certainly sieve attracted the attention of some passer by and foiled her plans. Anyhow the assertion that Mst. Surraya appellant had given a slap to Mst. Musarrat P. W. And she had gone back weeping to her house was never mentioned in her statement before the police, copy Exh. D. A., The learned Magistrate had highlighted the claims of Mst. Musarrat P. W. On the strength of identification of Mst. Surraya in jail by this witness, which had ions all its sting as Mst. Musarrat had admitted in her statement at the trial that she had seen Mst. Surraya quite often at the police station after this abduction. This incident of slapping was not even supported by Hidayat A.I P. W. In front of whose shop it had taken place although he claimed to have seen Mst. Surraya appellant talking to Mst. Shamim Akhtar when the latter happened to come to this shop along with his two sisters. He had, however, supported the claim of Mst. Jannat (P. W. 2) that on the information given by Mst. Musarrat she had come to his shop and enquired about her daughter from him. He had, however, correctly picked up Mst. Surraya in the identification parade but it did not appeal to reason that a shop-keeper could have remembered the features of a burqa-clad customer who had visited his shop for a short while about a month earlier. I would therefore exclude the statement of Mst. Musarrat and Hidayat A.I P. Ws. Consideration as a crude padding of the prosecution case bar the police. Moreover her identification by Mst. Musarrat and Hidayat A.I P. Ws.
Was never put to her in her examination under section 342, Cr. P. C.
10. The second set of witnesses, namely, Muhammad (P. W. 5) and Khuda Bakhsh (P. W. 9) relates to the alleged extra-judicial confession of Ghulam Mustafa and Muhammad Siddique appellants which is always considered as the weakest form of evidence. It has been relied upon for further corroboration of the statement of Mst. Shamim Akhtar but it was also devoid of any substance as there was no apparent reason for them to adopt this course, since they had safely got rid of the abducted girl by her sale to a Pathan at Lahore without leakage of any information about it.
Anyhow both of these witnesses admitted that they had not talked "to anyone about this visit of Muhammad Siddique and Ghulam Mustafa alias Javed for a compromise with Muzaffar Hussain P.
W. Through them. How the police got a clue about it remained a guarded secret as neither of the police witness (red deposed about it. Both of them had, how--ever, admitted that they knew about the abduction of Mst. Shamim Akhtar prior to their visit and also knew her father Muzaffar Hussain P.
W. Ii was strange that they had not informed the police immediately about it and made this disclosure many days thereafter to Muzaffar Hussain P. W. This delay alone was sufficient to discard their testimony, Moreover the story put forth by them did not quite fit in with the prosecution case as it was not believable that Muhammad Siddique and Ghulam Mustafa alias Javed who are cousins inter se, would have committed rape on a girl whom they had abducted for marriage with their own brother Muhammad Hanif. Even if their evidence was true it could not be used against the appellants as the were never questioned about it during their examination under section 342, Cr. P. C. I therefore, exclude their testimony from consideration. Reliance is placed on Din Muhammad v. The Crown (1969 P Cr. L J 1573Muhammad Sonafar All v. The state (1969 SCMR 461) and Miana v. The State (PLD 1972 Lah. 129).
11. The prosecution is then left with the solitary statement of Mst. Shamim Akhtar against these appellants which does not appear to be that of an imbecile girl suffering from any mental derangement as described by her father in the original report Exh. P. A. She had withstood a lengthy and scathing cross-examination at the trial which belied the alleged infirmity of the victim of this crime. In fact Dr. Muhammad Iqbal (P. W. 10) (a medical expert of the status of the Director Health Services) had emphatically refuted the existence of any such ailment in her which had rather presented another riddle in the prosecution case. To crown all is the unnatural story of her escape from the clutches of the Pathan in Layallpur and her journey back to her house all by herself under these circumstances. The Pathan is said to have paid Rs. 3,000.00 to the appellants to buy her as a bride for his son and had also some women-folk in his jhuggi to guard her. They could have taken no chance by offering her an opportunity to slip away in that manner. She in fact seems to have given no clue to the police about this pathan by leading them to his jhugi at Layallpur or other connected places. Even the well-to-do person who gave her some money and put her on a Gujranwala bound bus also remained a secret personality although the bus driver or its conductor could have given some information about this noble hearted person. None of the investigating officers had thrown any light on this aspect which remained quite obscure and has completely impaired the credibility of the prosecutrix. She, however, was not recovered from the custody of any of the appellants by the police nor had she been called upon to identify any of them at any identification parade. In her statement under section 161, Criminal Procedure Code, she had not named Rehmat A.I appellant at all and had stated that she would be able to identify him if produced before her but the police lied never bothered to put her to a test identification for establishing the implication of Rehmat A.I appellant in this offence. Anyhow there is no other evidence to show, that Mst. Shamim Akhtar was eves seen entering the shop of Rehmat A.I or it, the company of any other appellant in that busy bazar of Gujranwals Town on the eventful day or elsewhere even later although she was taken from place to place by them. She was first taken to Khota Pulli through the crowded bazar of the city and then onward to Muridke and from Muridke to Lahore where they handed her over to the Pathan in consideration for a sum of Rs. 3,000.00. The police had even failed to trace out any such Pathan or to recover a single penny out of the huge amount paid by them to the appellants.
As regards the secondary evidence about the medical examination o Mst. Shamim Akhtar and Rehmat A.I appellant in the absence of any tangible proof about the not-availability of Lady Dr. Zahida Ijaz and Dr. Sajjad-ul-Qayyum. It is now an established principle of law that before permitting any secondary evidence in this respect the prosecution must examine the police official who was entrusted with the service of summons issued in the. Names of these two Doctors to prove his report about their absence from the country with no immediate prospects of their return, but no such attempt seems to have been made in this case. It has therefore to be excluded from consideration. Allah Ditta v. The State (PLD 1958 SC (Pak.) 290), Fazal Muhammad v. Store (1970 SCMR 405) and Hasan Bakhsh v. State (197 1 P Cr. L J 133) are the recent authorities on the point.
With the elimination of the evidence of Mst. Musarrat and Hidayat A.I including their identification of Mst. Surraiya appellant, the testimony of Mohammad Azam and Khuda Bakhsh P. Ws. In respect of the extra judicial confession of Mohammad Siddique and Ghulam Mustafa alias Javed appellants as also the medical evidence, the prosecution is left wit the bald statement of Mst: Shamim Akhtar P. W. But it did not inspire confidence at all in the peculiar circumstances of this case which kept her father quiet for three days who then dubbed her as imbecile to cove her disappearance from the house. Even otherwise it is not considered safe to rely on the solitary testimony of the prosecutrix in such cases wit out its corroboration from any other source and Abdul Khalid's case.
(PLD 1960 SC 325) the basic authority on the point. I have therefore no option but t accept all the four appeals and setting aside the conviction of all the six appellants acquit each of them of the charges levelled against them. They have already been released on bail, so their bonds shall stand discharged.
12. As a result of these appeals the notices issued against them in suo motu Revision Petition No. 853/68 are also discharged.