P L D 1952 Baghdad﷓ul﷓Jadid 15 (PLP)

ABDUL HAMID MALIK, J.‑A case under section 363 P. P‑. C. was registered at the instance of Allah Diwaya against the ap pellant at the police station Ahmadpur East. It was stated therein that Mst Aziman, an un‑married minor girl was kidnapped by the petitioner, from the lawful guardianship and that Imam Bakhsh son of Khuda Bakhsh and Muhammad Akram had seen the girl accompanying the appellant: The age of the‑girl was stated to be between 13 ,and 14 years. The case vas tried by Mr. Alvi Magistrate 1st class with section 30 powers at Ahmadpur East who convicted the accused under section 363 P. P: C. and sentenced him to undergo 1 years rigorous ‑imprisonment.. In the appeal which was preferred by the, accused the learned Ses sions Judge maintained the conviction and sentence. The peti tioner has now come to this Court on the revisional side and his case has been argued by Sh. Nisar Ahmad. The main point for determination is whether the girl was minor to attract the provisions of section 363 P. P. C. She was examined by a Lady Doctor (Z Gillani) but the lady doctor could not appear in the witness‑box‑ because she had left the State service and her whereabouts could not ‑ be‑traced. The learned Magistrate, however called the compounder and. got the certificate Ex. P.B. proved. Miss Zahida, compounder, stated that she was conver sant with the handwriting of the lady doctor and that the certificate Ex. P. B. was written by her. In the certificate ER. P. B‑ the lacy doctor had stated that‑the age of the girl was between 14 to 16 years, She mainly based her opinion on the number of teeth which the girl had and also took into consideration that the breast of the girl was not full developed. The father of the girl, Allah Diwaya, also stated that the age of the girl was between 13 and 14 years. There is no other evidence on the record with regard to the age of the girl. As stated above the lady doctor could not be examined and therefore the peti tioner could not cross‑examine her. Reference may be made in this connection to 1916 Privy Council 242 where Their Lordships of the Privy Council were pleased to lay down : " The doctor's certificate which is only an assertion of opinion and the minor's declaration before the Magistrate as to age is no proof as to age ". In that case the doctor had stated that the appellant was 21, judging by his teeth, his appearance and his voice. In Their Lordship's view such a certificate was worthless. Hence I attach no importance to the certificate of the lady doctor which is Ex. P: B. on the record. We are then left with the solitary statement of the father. Such a loose statement unsupported by any other evidence is insufficient to prove that really the girl was below

16. I, accordingly, hold that it has not been proved to the hilt that the girl was minor so as t o attract the provisions of section 363 P. P. C. Needless to discuss the evi dence of Muhammad Akram and Imam Bakhsh‑chance wit nesses. It is sufficient to state that they hopelessly contradict each other. Hence I accept this petition for revision, set aside the conviction and sentence and acquit the petitioner. He may be released forthwith if he is not detained in any other case Announced. A. H. Petition allowed.