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Criminal Revision No. 128 of 1962, decided on 25th June 1962.

Ss. 363 & 366‑Age, ascertaining Of fundamental importance‑Duty of Magistrate‑Magistrate relying on sole verbal testimony of girl‑Held, duty cast on Magistrate not properly discharged.

Sultan Ahmed for Petitioner.

Nemo for the Opposite‑Parties.

This rule must be made absolute.

The petitioner in this case filed a complaint before the Sub- Divisional Magistrate, Thakurgaon alleging that his minor girl was taken away by the uncle of his daughter and the father of the girl tried to bring her back home but failed. He subsequently lodged this petition of complaint whereupon the Court directed the production of the girl. On 7‑12‑61 the learned Sub‑Divisional Magistrate made the following order:

"The girl is produced. She is major : She states that she was married with one Mansur of her own free will and consent. This case is not therefore maintainable. No case lies against the O. P. in my opinion. Dismissed under section 203; Cr. P. C."

2. Age of a girl in a prosecution under section 363 of section 366 of the Pakistan Penal Code is of fundamental impor tance and it seems to me that the learned Magistrate has relied on the statement made by the girl to the effect that she is major. The learned Magistrate ought to have made an enquiry about the age in a case of this nature.

3. In the case of Kamala Prosad Bhartaharjee and another v. Emperor (A I R 1941 Cal. 315), it was held that in order to prove the charge of kid napping the prosecution must prove that the person kidnapped was under 16 years of age. It is true that the burden of proof lies on the prosecution but it is also a duty of the Magistrate to give adequate opportunity of proving the age. But in this case, the learned Magistrate summarily dismissed the complaint on the sole testimony of the girl made by her without oath having been administered to her as contended by the petitioner. It should be remembered, as has been held in the case of Sk. Hatem A. and another v. Emperor (A I R 1946 Cal. 493), that in a charge under section 366, the question of proving the age of the girl is of fundamental importance.

The duty cast on the Magistrate has not been discharged properly and the Magistrate seems to have satisfied himself on a verbal statement made by the girl to the effect that she was major. This is not satisfactory, to say the least, and the impugned orders must, therefore, be set aside and the case should be sent back for further enquiry and disposal of the case in accordance with law by some other Magistrate.

S. Q./K. H. A. Rule made absolute.

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