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Criminal Appeal No. 539 of 1960, decided on 24th January 1961.

S. 361‑Kidnapping‑Age of victim‑Medical witness stating that child was 13 years of age but not giving any reasons‑Age above 14, inferred from father's statement‑Preferred‑Conviction set aside.

Azizullah Shaikh for Appellant.

Rustom Kaikobad for Respondent.

Dates of hearing : 9th and 24th January 1961.

Rafiq Ahmed son of Abdul Karim. has been convicted by the Sessions Judge of Karachi, of the offence punishable under section 367, P. P. C. and sentenced to R.I. for one year, This was in disagreement with the opinion of three assessors out of four.

On the 11th of June 1960, Usman son of Ramzan witness left his house at 11 a. m. to meet his uncle, who was living in the city. On his way back, he met the appellant near Tramgodi at about 4 p. m. During the course of conversation, the appellant promised to get him an employment. He tools him to his own but in Jutland lines, where the appellant gave him anew shirt to wear as the one that was on his person, was torn. He also gave him a pair of shoes. Thereafter, he took him to a hotel where he served him with meals. Thereafter, they went to a picture house, and then returned at mid‑night to the but of the appellant. At about 2‑30 a. m. the boy woke up to find that his trousers had been removed, and the appellant is was about to have sexual intercourse with him. To this the boy objected. The appellant tried to shut his mouth but the boy raised cries. On his cries, came H. C. Muhammad Amin and witness Muhammad Ali. They took the boy and the appellant to the police station, where a report was lodged, and the police after usual investigation challaned the appellant with the above result.

The appellant in his statement denied the allegation and stated that he was sleeping in his house when at mid‑night he woke up and found Usman in his house, whom he caught, and on the noise that was raised came Muhammad Ali and others, who on account of enmity, got up this case against him.

The learned Judge has not accepted the version of the appellant and he has based his judgment on the evidence led by the prosecution.

The learned counsel for the appellant frankly conceded that he does not dispute the evidence on facts; but according to him the judgment cannot stand in view of two infirmities one of them being that the prosecution have failed to establish that at the time of the incident, the boy was under 14 years of age as contemplated by section 361, P. P. C. The other infirmity, according to the learned counsel is that the boy was abandoned and therefore section 361 had no application. During the course of argument he abandoned the plea of abandonement, and confined his case to the question of age. On this point, the Medical Officer has stated that the boy was of 13 years of age He has however given no reason whatsoever in support of his opinion. We have therefore no material on record to verify the version given by the Medical Officer. On the other hand, there is a statement made by Ramzan the father of the boy, that the latter was born one year or 1 years before partition. The offence having been, committed on 11‑6‑60, the boy at that time, few of the statement of Ramzan, would be 14 or over 14 years of age, at any rate not under 14. This negatives the opinion, of the Medical .Officer. For the purpose of section 367, it is necessary for the prosecution to prove that the boy was under:

"4 years of age when the incident took place. This ingredient, as said above the prosecution have failed to establish. The learned A. A O., therefore, frankly conceded that he cannot support the judgment. I therefore allow the appeal and set aside the conviction and sentence imposed upon the appellant. The appellant is in jail and he is directed to be released forthwith.

S. A. Conviction set aside.

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