1969L3025 (PLP)

Noor Ahmad (28) son of Ahmad Khan, caste Khokhar, resident of Chak No. 201, Police Station Bhawana, District. Jhang, presently employed as Sepoy No. 8806058 in. M. O. D. C. Wah Cantonment, was challaned under section 363/366, P. P. C. by Police Station Wah Cantonment for abducting Mst. Khatoon (P. W. 1) on the 10th of November 1966. The petitioner stood his trial in the Court of Mr. Akhtar Joseph, Magistrate 1st Class with Section 30 powers, Rawalpindi. He was charged under sections 366 and 376, P. P. C. The Magis trate found him not guilty of the offence under section 376, P. P. C. and giving the benefit of doubt acquitted him. However, he was convicted under section 366, P. P. C. and sentenced to four years' R. I. and a fine of Rs. 100 or in default one month's R. I. further. The petitioner was also sentenced to five stripes under section 4 (a) of the Whipping Act of 1904, by order dated the 20th of April 1968. In appeal, Shah Abdur Rashid Additional Sessions Judge, Rawalpindi, upheld the conviction of the petitioner under section 366, P. P. C. The learned appellate Court was of the view that the girl was a consenting party, and therefore, the petitioner did not deserve the severe sentence of. whipping. He reduced the sentence of imprisonment to two years' R. I. The sentence of fine and whipping was set aside by his, order dated the 6th of June 1968. The petitioner has come up in revision to this Court against his conviction and sentence.

2. The petitioner was employed in M. O. D. C. as a sepoy. The lands of the father of Mst. Khatoon (P. W. 1) are in the vicinity of the M. O. D. C. Lines. She used to graze her cattle there. The petitioner used to meet her and it is alleged that he got enamoured of her and pursuaded her to marry him. The petitioner made efforts for this and succeeded in enticing away Mst. Khatoon on the 10th of April 1956. The petitioner it is alleged, at first took her to the quarter of Muhammad Nazir P. W. and kept her there for some days. He then took her to Rawalpindi and then to Lyallpur. From Lyallpur, she was brought to village Lakh to the house of the petitioner. During this period, from the date of her enticement, it is further alleged, that the petitioner committed sexual intercourse with her. In the meanwhile, Mehboob Elahi, the brother of Mst. Khatoon, the abductee, lodged a report with the police on the 9th of January 1967, at about 2‑15 a.m. at Police Station Wah Cantonment. The explanation given for the delay in lodging the report was that Mehbub Elahi had been making efforts, including requests to the Military Authorities, for the return of his sister, but as he failed in her recovery, he lodged a report.

3. I have read the record of the case very carefully. I agree with the learned trial Court and the appellate Court that the abduction of Mst. Khatoon was not forcible. The petitioner was pursuading the girl to marry him and thus she was allurred to go with the petitioner as a willing party. It appears that Mehbub Elahi (P. W. 2), brother of Mst. Khatoon and the other members of the family also presumed that the girl was a willing party. However, the fact that she was enticed away by deceitful means and inducement by the petitioner with the intention that she would be seduced to illicit intercourse or compelled to marry him, is amply proved from the evidence. According to the evidence of Lady Doctor Mrs. R. Minhas, sexual intercourse was committed on Mst. Khatoon. Mst. Khatoon was abducted by the petitioner. P. W. 3 witnessed the taking away of Mst. Khatoon by the petitioner. She was kept in the house of Nazir (P. W. E), a sepoy in M. O. D. C. Wah Cantonment for some days. Mst. Khatoon was produced from the house of the petitioner by Nazar Muhammad (P. W. 14) and Gulsher (P. W. 16) before Sub‑Inspector Safdar Ali Shah (P. W. 11), although the former two witnesses have turned hostile at the trial. The petitioner was arrested on the 22nd of January 1967. From the evidence of Naik Subedar Allah Ditta (C. W. 1) it is amply clear that the petitioner was absent from duty without leave from the 14th of November to the 22nd of November 1966.

4. The learned counsel for the petitioner laid great stress in the arguments to show that Mst. Khatoon, abductee, had attained the age of majority and that she was above sixteen years. He also argued that she being a consenting party the petitioner has not committed the offence under section 366, P. P. C. Mehbub Elahi (P. W. 2) gave the age of his sister as fourteen years. The lady doctor (P. W. 17) found Mst. Khatoon, from her physical appearance, to be of eighteen years of age. Mehbub Elahi has produced the birth certificate (Exh. P. E). Head Clerk Rafi‑ud‑Din Alvi (P. W. 5), District Health Officer's Office, Campbellpur, testified this certificate (Exh. P. E) as true copy from the original birth register which he had brought to the Court. According to this certificate the date of birth of Mst. Khatoon, daughter of Jamal Din son of Alaf Din of village Budhu, was reported by Muhammad Din Chaukidar on the 19th of September 1951 as the 18th of September 1951. According to this certificate the age of Mst. Khatoon comes to fifteen years, three months and some days on the date of her enticement, i.e. the 10th of November 1966. The learned counsel vehemently argued that this certificate has not been proved according to law as neither Jamal Din, father of Mst. Khatoon nor Muhammad Din Chaukidar have been produced. Reliance was placed on Biseswar Misra v. The King (A I R 1949 Orissa 22) wherein it was observed :‑ "The birth certificate does not prove itself and is no proof of age of any particular person unless the person connected with that entry either by making the entry or giving information comes forward and speaks to the entry and connects the entry with the individual concerned." In another authority it was held (i. e. A I R 1938 Cal. 120): "Entries of the names of persons in a register of births or deaths or marriages cannot be positive evidence of the birth, death or marriage of such person unless their identity is fully proved." This dictum of law has arisen out of a civil suit. The fact that either Jamal Din, father of Mst. Khatoon or Muhammad Din, Chaukidar mentioned in the certified copy (Exh. P. E) have not been produced, was not controverted during the cross‑examina tion of the P. Ws., nor it appears that the same was contended in the arguments before the two Courts below. This birth entry is contained in a public register made by a public servant in the performance of his official duty and has been generally B preferred by Courts in Pakistan as against any other evidence of age. In Banney Khan and another v. The State (P L D 1966 Kar. 71) it has been) observed in paragraph 6 :‑ "The only questions that need to be resolved in this appeal are whether the age of the girl was below 16 years and whether the appellants were responsible for her removal from the legal guardianship of her parents. On the question of age of the girl, the only evidence on record is the evidence of Ghulam Hussain supported by the evidence of Muhammad Younus P. W. 4 who has produced the certificates from the Municipal Register. Ghulam Hussain's evidence is to the effect that the age of girl was 15 years, five months and 10 days on the day of the incident. The certificate produced by Muhammad Younus, P. W. 4 has been brought on record as Exh. 26 and it indicates that the date of birth of girl, Mst. Nur Begum, was 6th of December 1946. If the evidence of Ghulam Hussain and Muhammad Younus is believed then the age of the girl obviously would be a little less than 16 years on the day of the incident. The other evidence brought on record is the evidence of Dr. Miss Surraya Hamiduddin (C. W. 2). This doctor was examined as a Court witness, and her evidence is to the effect that the age of the girl on the date of the incident was about 17 years. The age of the girl had been determined by Dr. Miss Surrya Hamiduddin by physical examination of the body of the girl and her teeth. Mst. Nur Begum had not been sent to any Radiologist nor were any X‑ray photographs taken of her for the purpose of determining her age. The evidence of Dr. Miss Surrya Hamiduddin in these circumstances on the question of age will not be conclusive especially when she has stated that in the type of examination she had held there is likelihood of an error of about two to three years. Under these circumstances, there can be no room for doubt that the age of the girl on the date of the incident was below 16 years. It is probably on this account that Wahid Raza who had filed an appeal has not chosen to have his appeal pressed." Thus, it has been amply proved that the age of Mst. Khatoon on the relevant day of her abduction was below 16 years. From the evidence, discussed above, it has been amply proved that Mst. Khatoon was abducted by the petitioner and enticed by deceitful means with the intention that she would be compelled to marry or seduced to illicit intercourse and thus the petitioner has been rightly found guilty of an offence under section 366, P. P. C. by the two Courts below. The findings of the two Courts below have been arrived at in consonance with the well‑established rules of evidence and are not perverse. The fact that Mst. Khatoon was a willing party to the abduction has been considered by the learned appellate Court and he has reduced the sentence of imprisonment to two years and has set aside the sentence of fine and whipping five stripes.

5. For the reasons given above, I find no substance in the revision petition and hereby dismiss it. Petition dismissed.