' JUSTICE MUHAMMAD RAFIQ TARAR (CHAIRMAN).--- Allah Ditta convict and acquitted accused Ghulam Nabi were tried by the learned Special Court (for Speedy Trials) No,II, Lahore, on the allegation that on 8-10-1992 at 4-00 p.m. They abducted Mst. Bushra aged 11/12 years with intent to commit Zina against her will and actually committed Zina-bil-Jabr with her in the house of Allah Ditta convict. By judgment.Dated 2-12-1992 the learned Special Court acquitted Ghulam Nabi accused by giving him the benefit of doubt but Allah Ditta was convicted on both the charges and was sentenced to imprisonment for life, 15 stripes and a fine of Rs,20,000 under section 11 of Ordinance VII of 1969 and R.I. For 20 years and 30 stripes under section 10(3) of the said Ordinance.
The convict has appealed and the State has also challenged the acquittal of acquitted accused Ghulam Nabi. Both the matters are beign disposed of through this judgment.
2. The brief facts of the prosecution case are that on 8-10-1992 at about 4-00 p.m. Mubarak Ali complainant returned home when he was informed by his daughter Shazia that her younger sister Bushra had gone out for purchasing vegetable and had not returned. He thereupon went out in search of her. On the way Liaquat Ali and Kamal told him that they had seen Bushra going with Allah Ditta appellant in a Rickshaw. Then all the three started towards the house of Allah Ditta. On reaching there they heard the cries of Mst. Bushra and knocked the door which was chained from inside. Ghulam Nabi acquitted accused was standing outside. They pushed open the door and found Allah Ditta appellant committing Zina with Mst. Bushra. On seeing them Allah Ditta picked up his Chaddar and took to his heels. Mubarak Ali started for the police station. Shajar Abbas, Sub- Inspector met him on the way at Chowk Kachhu Pura and recorded his statement at 9-00 p.m. On the basis of which formal F.I.R. Was recorded at police station at 9-15 p.m. Thereafter the Sub- Inspector reached the spot and recorded the statements of the witnesses.
3. On 10-10-1992 Mst. Bushra was examined by Dr. Naureen Rasool, Medico-legal Officer. No mark of injury or violence was found on the external genitalia. There were stains of the semen on the Shalwar but no stain of blood on the clothes. Hymen was torn and redness was present around vagina. Tear was in healing stage. Vagina admitted two fingers tight. Three vaginal swabs were taken and sent to the Chemical Examiner. On receipt of the report of the Chemical Examiner, Lady Doctor opined that sexual intercourse had been committed with Mst. Bushra.
4. Shajar Abbas Sub-Inspector arrested the appellant and co-accused Ghulam Nabi on 10-10-1992.
On 11-10-1992 he made application for medical examination of the accused persons and another application for recording the statement of Mst. Bushra under section 164 of the Cr.P.C. After completing the investigation he challaned the accused.
5. In support of its case the prosecution examined four eye-witnesses, namely, Mubarak Ali, Liaquat Ali, Akmal and Mst. Bushra. The prosecution also relied on the medical evidence.
6. The appellant and acquitted accused Ghulam Nabi pleaded not guilty to the charge and denied the prosecution allegation against them. Allah Ditta appellant stated that Mubarak Ali complainant used to purchase fruit from him on credit and there was a dispute over the payment of money between them. He also made statement on oath under section 340(2) of the Cr.P.C. Wherein he professed innocence and stated that there was no complaint against him in the Mohallah. Ghulam Nabi also made a statement on oath. He stated that he knew nothing about this occurrence and was arrested from his house. They examined two witnesses in defence who stated that they were persons of good character and there was no complaint against them.
7. Relying on the prosecution evidence the learned trial Court convicted and sentenced Allah Ditta appellant as mentioned above. Ghulam Nabi, respondent in State appeal was however, acquitted on benefit of doubt.
8. Learned counsel for the convict/appellant contends that the presence of the eye-witnesses at the spot is not proved and in any case their evidence is absolutely untrustworthy and does not inspire any confidence, therefore, the conviction and sentence is unsustainable. In the alternative he submits that if the evidence of Mubarak Ali, Liaquat Ali and Akmal is accepted, even then the offence would fall under section 10(2) of the Ordinance.
9. On examining the record we find that the evidence regardin abduction/kidnapping is highly unsatisfactory. Mubarak Ali P.W. Stated tha when he was looking for his daughter Mst. Bushra, two persons (Liaquat Al and Akmal P.Ws.) informed him that two persons had taken her away in Rickshaw. Liaquat P.W. Gave the second version saying that he and Akma P.W. Had seen Allah Ditta taking away Mst. Bushra in a Rickshaw which was being driven by the driver and not by Allah Ditta appellant. The third version given by Mst. Bushra is that she was in the bazar when Allah Ditta drew out a knife, threatened her with death and forced her to sit in a Rickshaw. She wanted to raise alarm but he shut her mouth with his hands and took her to his house. In cross-examination she said that Rickshaw was being driven by Allah Ditta and Ghulam Nabi had placed his hand over her mouth when she wanted to raise alarm. Yet another version coming from Akmal P.W. Is that Allah Ditta had not boarded the rickshaw at all. According to him, Allah Ditta had told Mst. Bushra to go to his house and that he would follow her and then Mst. Bushra alone boarded the Rickshaw which was being driven by its driver. Akmal P.W. Further stated that Allah Ditta had his shop in the Chowk, therefore, he "could not travel with the girl in the same rickshaw as all the persons present there would have noticed him". The charge under section 11 of the Ordinance, therefore, fails and Allah Ditta appellant is acquitted of the said charge.
10. The lady doctor stated that it was not the first sexual intercourse with Mst. Bushra and she might have cohabited "two or three times" earlier as well. There is nothing on the record to show that she had not attained puberty before the day of occurrence. The evidence on the record clearly indicates that she was a consenting party. Statement of Akmal P.W. Referred to above shows that on the asking of Allah Ditta appellant she started for his house in a rickshaw to wait for him there as he had told her that he would follow. She made statement under section 164 of the Cr.P.C. In the presence of Allah Ditta appellant who cross-examined her. It was suggested to her that she had gone with the accused (Allah Ditta appellant) of her own free will. From evidence of Liaquat and Akmal it is fully established that the appellant had committed Zina with her. Being residents of the locality they are natural witnesses of the occurrence having absolutely no motive to fasely implicate the appellant.
' In the circumstances the offence committed by Allah Ditta appellant falls under section 10(2) of Ordinance VII, 1979. Consequently his conviction under section 10(3) is altered to one under section 10(2) of the Ordinance and his sentence is reduced to R.I. For 10 years, 30 stripes and a fine of Rs,5,000. In default of payment of fine he will undergo further R.I. For one year.
' The State appeal against acquittal is dismissed as there is no reliable evidence whatsoever against Ghulam Nabi respondent. Mst. Bushra in her examination-in-chief stated that Ghulam Nabi also committed Zina-bil-Jabr with her but she was confronted with her statement under section 164 of the Cr.P.C. Wherein it was not so recorded. In cross-examination she further stated that Ghulam Nabi was committing Zina with her when the witnesses arrived, but she was contradicted by all the three eye-witnesses who stated that when they reached the spot Ghulam Nabi was standing outside and had run away on seeing them. In the circumstances the State appeal is dismissed.