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Criminal Appeal No.146 of 1980, decided on 29th November, 1984.

‑‑‑S.363‑‑Age‑‑Complainant giving age of abductee in F.I.R. as 13/14 years but in Court stating 15 years 9 months and 22 days according to her date of birth‑‑Abductee giving her age 19 years in affidavit, 15 years 9 months and 22 days according to Matriculation Certificate, 14 years in plaint filed in Family Court and 16 years when examined in High Court‑‑Doctor on various examinations found her age 16/17 years‑ In view of conflicting versions, age given in Marticulation Certificate, held, unreliable and evidence of doctor more reliable.‑‑[Age].

P L D 1963 Lah. 239; P L D 1966 Pesh. 72; P L D 1970 Lah. 33; p L D 1978 S C (AJK)1; P L D 1963 Kar. 684; P L D 1964 Kar. 264 ;' P L D 1963 Kar. 873; 1977 P Cr. L J 94 and 1968 P Cr. L J 1 7 t2 not discussed.

---S.363‑‑Age‑‑Abductee neither below 16 years at time of occurrence nor forcibly taken/removed from lawful guardianship‑‑Conviction under S. 363, P. P. C., held, not maintainable‑‑Accused given benefit of doubt and acquitted.‑‑[Age‑‑Benefit of doubt].

Ch. A. Jabbar for Appellant.

Inam Bakhsh Shaikh for the State.

A.Q. Halepota for the Complainant.

Date of hearing: 11th November, 1984

Appellant Muhammad Usman, alongwith Muhammad Siddiq, Muhammad Ibrahim, Muhammad Hassan and Mubarak was tried by the learned Sessions Judge, Tharparkar, for the offences punishable under section 363/368 and section 6, subsection (3) of Zina Hudood Ordinance, 1979. He, by a judgment, dated 25‑5‑1980, convicted only Muhammad Usman under section 363, P.P.C. and sentenced him to undergo R.I. for 3 years and to pay fine of Rs.3,000. In default of payment of fine he is to suffer R.I. for six months, more. He has been exonerated from the charges of 368, P.P.C. and Zina Hudood Ordinance. By the same judgment co‑accused have been acquitted.

2. Muhammad Usman has filed this appeal and challenged his conviction.

3. Briefly the facts of the prosecution case are that Mst. Naseem Akhtar, a college student is a daughter of complainant Nisar Ahmed who is a retired S.T.E. (Railway Department). They used to reside at Satellite Town Mirpurkhas. Appellant Usman is contractor and mason. He was doing construction work at the house of Nisar Ahmed during the days of this incident. As usual in the morning of 30‑5‑1979, Khalid accompanied her sister Naseem Akhtar to Girls College and after leaving her there he was coming back to house when he reached near Tasweer Mahal, Cinema, he saw his sister and Usman (appellant) with Siddiq were going in a white car. He suspected some foul play and went to the college where he was informed that his sister went away from the college immediately. He went and informed his father who narrated these facts to his nephew Nadeem, who went to the house of appellant and found him missing. Thereafter, Nisar Ahmed informed Mr. Anwar Jamal, Advocate who advised him to lodge a report. The case under section 363/34, P.P.C. was registered against appellant and Muhammad Siddiq.

4. During the investigation A.S.I., Waheeduddin of P.S., Mirpurkhas secured Mst. Naseem Akhtar on 2‑6‑1979 from a house in Korangi, Karachi and arrested appellant. Both of them were referred for Medical examination. S.H.O. Mirpurkhas challaned the case.

5. The case proceeded in the Court of learned Sessions Judge, Tharparkar at Mirpurkhas who held that Mst. Naseem Akhtar was kid napped by appellant Usman only from lawful guardianship of his father. His findings on points of wrongful confinement of Mst. Naseem Akhtar (at Sanghar, Sinjhoro and Karachi) and Zina‑bil‑Jabar by appellant are in negative, therefore, he convicted the appellant for the offence under section 363, P.P.C. only and acquitted co‑accused.

6. Appellant Usman in his statement under section 342, Cr. P. Appellant has denied the allegations of kidnapping, recovery, wrongful confinement and Zina‑bil‑Jabar on Mst. Naseem Akhtar but stated as under:‑

Q, Do you want to say anything

Ans. Mst. Naseem Akhtar was in love with me, for six months prior to the time she went with me. She has been urging me to marry her and she had gone willingly with me. We had not gone to Satellite Town or Tasveer Mahal Cinema side but we had gone straight to Sanghar, where she gave statement before Honorary First Class Magistrate and then she of her own accord had performed Nikah with me at Sinjhoro. She had been writing me letters and she had written me about fifty letters and in those letters she has been urging me to take her somewhere and marry her. She has also been telling me that her age is between 19 and 20 years. She has also given her age at the time of Nikah as 19 years. I had spent about Rs.15,000 on the cons truction of her father's house and about Rs.8,000 worth building material was lying on the site before this incident."

7. Appellant examined D.W.1 Bahram Khan Exh. 47. D.W.2 Aziz Baloch Exh.50 and D.W.3 Anwar Mehmood Exh.51, in his defence. The evidence of Bahram is that he registered the Nikah of appellant and Mst. Naseem Akhtar. D.W.2 Aziz Baloeh was Honorary Magistrate at Sanghar who attested the statement of Mst. Naseem Akhtar and D.W.3 Anwar Mehmood has stated that he drafted the affidavit of Mst. Naseem Akhtar under her instructions and she gave her photo which was affixed on affidavit.

8. P.W. Mst. Naseem Akhtar Exh.10 has stated in her evidence that she was First Year student and used to go to Girls College, Mirpurkhas. On the day of incident as usual her brother Khalid left her at College at 7.30 a.m. and after about 15/20 minutes a college peon gave her a message that somebody has come to see her. She went outside the gate and found Mistri Muhammad Usman (appellant) standing who informed her that condition of her mother is very serious and she had sent for her. On knowing this she came out from the College and saw a white car standing. Appellant Usmar made her to sit in a car which was standing at the corner of college boundry. She found Ibrahim, Siddiq and driver Muhammad Hussain sitting in that car. Thereafter she was taken to Sanghar, Sanjhoro, Hyderabad and finally Usman took her to Karachi. She has stated that her signatures were forcibly obtained on papers at various places. She states that at Karachi appellant committed Zina‑bil‑Jabar on her and finally on 2‑6‑1979, she was recovered by police and arrested the appellant. The complainant Nisar Ahmed and P.W. Nadeem are not eye‑witnesses of the incident and their evidence is hearsay. P. W. Khalid saw his sister with appellant and others in a car and informed his father.

9. P.W.6 Waqar Hussain Exh.32, was peon in Girls College Mirpurkhas and his evidence is that he conveyed a message of one person to Mst. Naseem Akhtar on the day of incident though he has not been able to identify the girl and messenger. P.W.7 Dr, Farzand examined the abductee and produced her age certificate and also certi ficate issued by the Lady Doctor.

10. P.W. Waheeduddin was A.S.I.P. at Mirpurkhas Town. He secured Mst. Naseem Akhtar and arrested the appellant. He conducted the investi gation. P.W.9 Muhammad Hassan, S.H.O. challaned the case.

11. I have heard Mr. Abdul Jabbar Choudhry, learned counsel for the appellant, Mr. Imam Bux Shaikh for the State and Mr. A.Q. Halepota for the complainant.

12. Mr. Abdul Jabbar, has argued that this is not a case of kidnapping but Mst. Naseem Akhtar was a willing party. He has contended that she was major and not under sixteen years of age, therefore, appellant has committed no offence. He has cited P L D 1963 Lah. 239; P L D 1966 Pesh. 72; P L D 1970 Lah. 33; P L D 1978 S C 1 (AJK); P L D 1963 Kar. 684; P L D 1964 Kar. 264. His contention is that according to medical certificate the age of Mst. Naseem Akhtar is more than 16 years, therefore, Doctor's evidence be given preference over Matricu lation Certificate. He has argued that when there are two theories the explanation advanced by accused be accepted.

13. Mr. Imam Bux learned counsel appearing for the State has supported the conviction and argued that Mst. Naseem Akhtar has fully supported the case and it has been proved that at the time of incident she was below 16 years of age, therefore, according to him appellant has rightly been convicted. He has cited P L D 1963 Kar. 873 and 1977 P Cr. L J 94 and stated that school certificate has a preference over medical report on the point of age.

14. Mr. A.Q. Halepota appearing for complainant has argued that appellant has been rightly convicted under section 363, P.P.C. He has cited 1968 P Cr. L J 1742 and argued that in the above cases school certificate has been given preference over any other document including medical certificates.

15. I have gone through the evidence and perused various documents produced during the trial. She was taken from Mirpurkhas to Sanghar where she swore an affidavit before M. Aziz, Muhammad Baloch Honorary, First Class Magistrate, photo copy of affidavit is at Exh.13, and then she was brought to Sinjhoro where D.W. Bahram performed her Nikah with appellant and Nikahnama is at Exh.40. She was recovered on 2‑6‑1979 thereafter, on 4‑2‑1980 Mst. Naseem Akhtar filed a family suit (Suit No.6/80) in the Court of Family Judge, Mirpurkhas for declaration that her marriage with appellant is false in the eyes of law. The suit perhaps was pending at the time of the decision of this case. On the other hand the appellant filed petition (Petition No.1222 of 1979) under section 491, Cr.P.C. read with Article 199 of the Constitution in High Court. Mst. Naseem Akhtar was produced and examined in the High Court on 9‑9‑1979. She stated on oath as under:‑

"Two days back the police had secured me from the railway train at Hyderabad, while I was going to Mirpurkhas from Alipur. I know the petitioner. The petitioner used to work at my place as a Labourer. I know nothing beyond this. I had never married the petitioner. I want to live with my father of my own free will and accord. I was not forced to make any statement one way or the other and I am a free agent.

(Agha Ali Hyder),

(Sd.) Chief Justice and

(Sd.) A.V. Akhund J."

The order passed by D. B. of this Court is:‑

"The petition, inter alia, mentioned that the alleged detenu, namely, Mst. Naseem Akhtar, had been married to. the petitioner on the 30th of May, 19,79. However, her parents were not happy with this marriage. They had unlawfully detained the said Mst. Naseem Akhtar, and were not allowing her to rejoin the roof with the petitioner.

The girl has been produced today, and her statement was recorded. She has stated that all that she knows about the petitioner is that he had worked at her place as a labourer for some time. She has further gone on to say that she would like to live with her parents of her own free will and accord. The age, as mentioned by her, is sixteen years.

Under the circumstances and in the light of the statement made by her, she is free to go back to the father, as desired by her, and the petition fails.

(Sd.) Agha Ali Hyder,

Chief Justice

September 9, 1979.

(Sd.) Ali Muhammad V. Akhund

Judge"

16. During the trial so many love letters written by Mst. Naseem Akhtar have been produced. From the above facts and circumstances of the case it is clear that she had not forcibly been taken away. The learned counsel appearing have only taken ground of her age at the time of incident. The definition of kidnapping as given in section 361, P.P.C. is given as under:‑

"Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

17. There is no charge under section 366, P.P.C. against the appellant, therefore, it is not the case of prosecution that she was kidnapped with intent that she may be compelled to marry against her will or seduced to illicit intercourse as such it is to be seen whether she being a female under 16 years of age was taken or enticed away from the lawful guardianship. No motive for such kidnapping is proved.

18. On the point of age the evidence consists of Matriculation Certifi cate of Mst. Naseem Akhtar. (ii) The medical certificate issued by M.O. Mirpurkhas. (iii) The oral version given by complainant and other witnesses. In F.I.R. complainant has given age of his daughter as 13/14 years but in Court he stated that her birth date is 8‑8‑1963 (15 years 9 months and 22 days). An affidavit Exh.13 was sworn by Mst. Naseem Akhtar on 30‑5‑1979, before Honorary First Class Magistrate where she has given her birth date as 8‑8‑1960 (age as 19 years). Mst. Naseem Akhtar produced Matriculation Certificate Exh.11, showing birth date as 8‑8‑1963. The Family Suit Exh.12 was filed on 7‑1‑1980 and in the plaint she has given Ker age as 14 years. This suit is filed 7 months after the incident. She has not made any reference in suit about her birth date as given in Matriculation Certificate. She was examined in the High Court on 7‑9‑1979 where she has given her age as 16 years. Dr. Farzand Exh.33 on various examinations like her height, weight, teeth etc. plus from radiological tests found her to be 16/17 years age. Mst. Naseem Akhtar was examined by the Doctor on 2‑6‑1979. The other circumstances are that as per Lady Doctor's opinion that she had been used for sexual intercourse and the case of appellant is that she is his wedded wife for which he has produced Nikahnama and other documents then the question would be whether fatter or a husband was lawful guardian at the time of incident. However, the question of marriage is being agitated in Family Suit. I do not like to discuss here and prejudice their case but evidence of this point is available in the record of trial Court.

19. In view of the conflicting versions and statement on oath given on point of age by complainant and Mst. Naseem Akhtar at various stages of the case no reliance can be placed on the age given in the Matriculation Certificate as these entries, normally in the school record are made at the instance of the parents. However, as per Matriculation Certificate the age of Mst. Naseem Akhtar at the time of incident is 15 years 9 months and 22 days. There is certificate of Doctor Exh.34 in which her age is shown 16/17 years and he, in evidence Exh.33, has given a margin of error from 6 months to one year.

20. The entire evidence on this point has been brought on record from the prosecution side. Now it is to be seen whether prosecution in these circumstances has been able to prove the case beyond reasonable doubt. I have no hesitation in saying that there are not only different versions given by the complainant Nisar Ahmed and Mst. Naseem Akhtar but statements are also self‑contradictory. The conflicting evidence on the point of age of Mst. Naseem Akhtar has come on record as discussed in detail in the above paras of this judgment, therefore, in these circumstances, I am of the opinion that the evidence of Doctor is more A reliable. The evidence of Doctor is adduced by the prosecution and not of a defence. Since the prosecution has not been able to prove that Mst. Naseem Akhtar at the time of incident was under 16 years of age, therefore, 1 do not like to discuss the case‑law cited by the learned counsel. In all the above cases the version of the prosecution on the point of age was challenged, therefore, Courts resolved the disputes and gave findings.

21. For the reasons discussed above I come to the conclusion that at the time of occurrence Mst. Naseem Akhtar was not below 16 years and she was not forcibly taken/removed from lawful guardianship, therefore, the conviction under section 363, P.P.C. is not maintainable. I give benefit of doubt to the appellant. This appeal is accepted and E appellant Usman is acquitted. He is on bail. His bail bond stands cancelled.

M. A. K. Appeal accepted

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