P L D (1961 (W (PLP)

Muhammad Hayat Junejo for Respondent. Date of hearing: 22nd December 1959. The learned 1st Additional Sessions Judge of Mirpurkhas has convicted Gulab son of Nurdin of the offence punish able under section 366, P. P. C., and sentenced him to R. I., for 3 years and Mst. Ghulam Fatima of the offence punishable under section 366/109, P. P. C., and sentenced her to R. I., for one year. Appellant Gulab had cultivated the land of the complainant Abdul Haq, and as such he came to know the complainant's children. 'On the relevant day, Fatima a daughter of the complainant, was in the house while the complainant was away. Taking advantage of his absence, the two appellants went to the house of the complainant and persuaded Fatima to go with them for the purpose of seeing a picture at a local cinema. The girl, after taking permission from her step‑mother, who is a cripple, left her house and went along with them. When the complainant returned to the house which was at 1 a.m., he was informed by his wife that Fatima had been taken away by the two appellants. The complainant went to the house of Gulab, but he did not find him there. Search for the girl produced no result. During this search, he was informed that the girl had been seen boarding a train at Kunri station along with the two appellants and some others. The complainant, on his return to the house discovered that some ornaments had also been taken away. Ultimately, the complainant made an application to the D. S. P. Nara Valley Sub‑Division who endorsed the same to the S. H. O. Kunri police station for disposal. The police, after completing the investigation challaned the two appellants and 4 others. The learned Judge con victed the two appellants and acquitted the rest. The case of the appellant Gulab was that he had‑married the girl, who according to him, was major. The learned counsel for the State frankly conceded that this is not a case of taking away a girl by force. There are clear indications that the girl went with the appellant of her own accord. Therefore the main question for consideration is whether on the day of the incident, the girl was below 16 years of age. There is no documentary evidence produced by the prosecution in support of the allegation that the girl was over 16 years of age. There is merely the statement of the girl's parents. The learned counsel for the appellant has drawn my attention to certain passage in the evidence of the doctor, who examined her, which shows that the evidence of the medical officer does not definitely establish the age of the girl to be 16 years. The learned counsel for the State frankly conceded that the prosecution have not been able to establish the age of the girl to be 16 or above, beyond a reasonable doubt, and he therefore says that in view of this kind of evidence, he cannot possibly support the judgment. I agree with him. There is no doubt that in the examination -in‑chief, the medical officer had stated that the girl was between 14‑16 years of age when he examined her, but some of his answers in cross‑examination point to the fact that the girl could be 16 to over 16 years of age. According to his evidence, in examination- in‑chief the upper end of radius completely fuses in Punjabis (the girl comes from Punjab) at the age of 14 to 15 years. While lower end of radius and ulna completely fuses between 16 to 17 years, and the crest of the iliac at the age of 17 to 19 years, in this particular case, he found that the radius had completely fused with the shaft of the radius and that the lower end of ulna was partly fused while the iliac crest was completely separate and no fusion had started. On this basis, he came to the conclusion that the girl was over 14 and below 16 years of age. In his cross -examination, when his attention was drawn to certain passages in Modi's book, he stated "I do not agree that in average cases thick hair in pubic and the axillary (regions) start at 16 or 17 years. "On page 21 at line 161, the medical officer in cross‑examination has stated: "The distant end of radius is also almost completely fused". Again on page 22 at line 173, the medical officer had stated in cross‑examination: "Great trochanter is completely fused. In Modiage of fusion in Punjabies is shown between 16 to 17 years. It is thus clear from the passages, in inverted commas, that according to Modi, the fusion of distant end of radius takes place in Punjabis at the age between 16 to 17 years. In this case admittedly the distant end had almost completely fused. At any rate, the fusion must have started (according to Modi) at the age of

16. It is further clear from the statement of the medical officer in cross‑examination, that distant end of ulna was partly fused, while according to his statement in examination‑in‑chief, the lower end of ulna was completely fused. These two statements are irreconcilable. In view of this state of evidence of the medical officer as to the age, it is not difficult to hold that the girl was 16 or over 16 years of age, when she was taken away by the appellants: I therefore hold that the prosecution have failed to establish that the girl when she was taken away was below 16 years of age. I allow the appeal and set aside the convection and sentence imposed upon the appellants. Mst. Fatima is on bail, heir bail bond stands discharged. Gulab is in jail; he is directed to be released forthwith. Appeal accepted.