P L D 1952 Baghdad﷓ul﷓Jadid 20 (PLP)

Laws Cited

Representation

• ABDUL AZIZ, C. J.‑One Gehna father of Mst. Sakina made a report on 24th of February 1949 that about two months back Mst. Fatima wife of Sultan and Mst. Sughra daughter of Khuda Bakhsh took away his daughter 12 or 13 years of age at about 8 or 9 p. m. to go outside the village. They took her to Ghulam Rasool, Tai and Khan Muhammad petitioners, Sultan absconder and Dulla. All of them took her away on a horse back. Taj, Ghulam Rasool and Khan Muhammad returned form a distance of five squares of land while Dulla rode away with her. Gehna was informed by one Muhammad Shafi that his daughter was taken away by all the accused. He raised a hue and cry and went to Ghulam Rasool, Taj, Sultan and Khan Muhammad who told him that they had taken away his daughter. The same information was given to him by one Faqir Muhammad. The girl however was not handed back. Gehna thereupon searched for her in different districts and subsequently the case was registered. Ghulam Rasool, Taj and Khan Muhammad were challaned under section 366 P. P. C. and were tried and charged by Malik Abdur Rashid section 30 Magistrate Ahmadpur East. Before he could conclude the case he was succeeded by Mr. Durrani who after recording the defence evidence and hearing the parties altered the charge from 366 to 363 P. P. C. He held them guilty and sentenced them to two years rigorous impris onment and a fine of Rs. 50 each, in default of payment of fine 3 months further rigorous imprisonment. The learned Sessions judge reduced the sentences from two to one year rigorous imprisonment. This is a revision before this Court. It was con tended by the learned counsel for the petitioners that both the Courts below were wrong in holding that the girl Mst. Sakina was a minor girl. The learned Government Advocate's conten tion was that the High Court should accept as final the concur rent findings of the two Courts below on this point. It is true that ordinarily the concurrent findings of the Courts below on a question of fact should be accepted but where the High Court finds that the finding is not arrived at by correct appreciation of the evidence and any of the Courts below had misdirected itself then the High Court is competent to interfere if it comes to a different conclusion. Now the Courts below have placed undue importance in the evidence of lady doctor whose evidence could not be but the opinion of an expert. It has been unanim ously held by the High Courts, that the evidence of a doctor on such matters is nothing more than an opinion and an opinion of an expert is of little value unless it is corroborated by convincing material on the file. In 1939 All. 708 it was laid down by a Division Bench of the High Court that the statement based upon certain physical peculiarities is not legal but only opinion. Hence a statement of a doctor is nothing but the opinion of a doctor. The same view was adopted by Agha Haidar J. in 1928 Lah. 250. See also in this connection 32 Cr. L J 1041. A similar question had arisen before this Court in Ghulam Haidar v. Noor Muhammad P L D 1950 B J 94 where it was held that the statement of a doctor unsupported by reliable evidence is of no value. The most material evidence in such cases is of parents. The evidence of Gehna recorded by the Magistrate on 25th of April 1951 settles the controversy to my mind at rest. His statement was to the effect that in 1927 he had got an allotment chit for land in Chak Murad. He went back to his original home and then returned to that chak after three years. One year after his return Mst. Sakina was born. Her birth therefore indisputably took place in 1931. The report of her lose which had taken place two months before the report was made on 24th of February 1949. According to his evidence Mst. Sakina was above 16 years of age. There could be no worst evidence on the file to go against the prosecution. The learned Sessions judge had resummoned this witness before him. I cannot understand with what justifica tion. There was no ambiguity in the statement of Gehna dated 25th of April 1951. The further examination of Ghena before the Sessions Judge was therefore likely to create a mess which indeed it did. The learned Crown counsel referred me to the statement of Mst. Gohar (P. W 3) the grandmother of the girl. Indeed she deposed that the age of the girl was 13 or 14 years but how can I believe it in the presence of the statement of the father of the girl. The statement of Gehna was the only determining factor to decide the question of age. Indeed the learned Sessions judge was guilty of misdirection in this case by resummoning Gehna and obtaining a different statement from him. Both the Courts below have given undue importance to the statement of lady doctor. If the statements of the lady doctor and the statement of Gehna made in the Court of the Sessions judge are ignored then the simple conclusion would be that Gehna's statement made in the Court of the trial Magistrate establishes that Mst. Sakina was not minor when she was taken away from her parent's house. The charge under section 363 P. P. C. therefore was inadvisable and must fail. I therefore accept the revision, set aside the conviction of the petitioners under section 363 P. P. C. as well the sent ences passed against them. The fine if paid shall be refunded. I however direct the retrial of these accused under section 366 P. P. C. As Mr. Durrani had already expressed his opinion in this case hence it would be desirable that it should be tried by the A. D. M. Bahawalnagar. The petitioners shall remain in the judicial lock‑up and be treated as under‑trial. Mr. Bajwa has made a request on their behalf to release them on bail. This should be made before the A. D. M., who will be in a position to pass the proper order.

Headnotes / Summary

Judgment & Decree