BANNEY KHAN vs THE STATE

1. Appellant Banney Khan was tried in respect of offences punishable under sections 366 and 376, P.

2. P. C., for allegedly kidnapping Mst. Akhtarun--nisa and committing rape or, her, and was convicted by the learned City and Additional District Magistrate, Karachi, by her judgment delivered on 21-6- 1973, of the said offences, and was sentenced on the first count to suffer three months' R. I. And to pay a fine of Rs. 2,000 or in default to undergo further R. I. For 1 year, and on the second count to undergo R: I. For four years and to pay a fine of Rs. 3,000 or in default to suffer further R. I. For two years, the sentences to run consecutively. The appellant has challenged his convictions and sentences. By a short order, recorded on 18-6-1974 I had allowed the appeal of the appellant. I now proceed to give reasons therefor.

3. The prosecution case, in brief, is that the appellant is the son of the brother-in-law of the first informant, Muhammad Salim, who was at the relevant time residing with his family in Golimar. The appellant and his relations had been demanding from Muhammad Salim the hand of his daughter, Mst. Akhtarunnisa, in marriage for the appellant but' according to Muhammad Salim he was opposed to the marriage. On 9-5-1969, at sometime in the afternoon, Mst. Akhtarunnisa left her house in order to make some purchases. It is alleged that on the way the appellant accosted her and was able to persuade her to accompany him, telling her that he would telephone her mother and obtain her permission for her to go with him. The appellant is first said to have taken Mst. Akhtarunnisa to a photo--grapher's studio in Golimar where two photographs of her were taken, one with the appellant and the other alone. Thereafter, the appellant is said to have taken Mst. Akhtarunnisa in a rickshaw to his house, from where he picked up his sister-in-law and then both of them took Mst. Akhtarunnisa in the rickshaw to Korangi, where she was made to spend the night, and on the following day she was taken to a but in Drigh Colony. It is alleged that in that but the appellant in the night committed rape upon Mst. Akhtar--unnisa after threatening her, giving her two or three slaps and putting a cloth into her mouth in order to prevent her from raising cries.

4. On the following night, the appellant is said to have brought Mst. Akhtarunnisa to Golimar area, where they were seen at Lasbela bridge by a police party headed by Head Constable Mehdi Abbas, who arrested the appellant and took him and Mst. Akhtarunnisa to the police station. The police secured the shalwar which Mst. Akhtarunnisa was then wearing and also the shalwar and underwear of the appellant. The police also secured a bed sheet from the quarter of one Nanney Khan in Drigh Colony, which quarter was pointed out by the appellant. All these three articles were sent to the Chemical Examiner to the Government who has reported that semen stains were found on all these articles except on the shalwar of the appellant. Mst. Akhtarunnisa was also medically examined in regard to her age, and also for ascertaining whether she had any injury on her person or she had been criminally assaulted.

5. The appellant in his 342, Cr. P. C. Statement admitted that he had taken Mst. Akhtarunnisa to Korangi, but claimed that he had done so with the permission of her mother and that he had got her photographed on the way with the consent of Mst. Akhtarunnisa. He denied that he had used force or compelled the girl to accompany him or that he had committed rape on her or even had sexual intercourse with her. His defence was that first informant Muhammad Salim and his wife wanted to marry Mst. Akhtar--unnisa to him, and because of this fact he bad been putting up in their house and he used to give them his earnings, but as they went on taking his earnings there was a dispute and because of this dispute, he has been involved in this case.

6. PLD 1967 SC 340) their Lordships of the Supreme Court con--sidered the question as to how far the evidence of the prosecutrix should be relied upon in a rape case. The dictum laid down by their Lordships was that the evidence of the prosecutrix in such a case is customarily received by the Court with some suspicion and that in certain jurisdictions it is the rule that the solitary evidence of the prosecutrix, being a woman of full age, is not accepted as sufficient, but requires corroboration in order to be believed. In the instant case, as already pointed out, not only there is no corroboration to the testimony of Mst. Akhtarunnisa that she bad been subjected to rape but on the contrary the circumstances seem to suggest that if the appellant did have sexual intercourse with her it was very likely that she was a consenting party. The conviction on the charge of rape, under the circumstances, also cannot be sustained.