P L D 1966 (W (PLP)

Murtaza Hussain for the State. Dates of hearing : 16th and 17th June 1965. The appellants, Banney Khan and Wahid Raza, had been convicted under section 363, P. P. C. and sentenced to suffer rigorous imprisonment for two years each. Nazakat Ali Farasat Ali, both sons of Banney Khan, and Siddiq son of Ibrahim, had also been tried along with the appellants but they were acquitted. The present two appellants had filed an appeal. They were both granted bail by this Court. Banney Khan was able to give surety on account of which he was released on bail. Wahid Raza could not give surety and as such he continued to be in jail and has since served out the sentence. The learned counsel for the appellants has not pressed the appeal of Wahid Raza and as such the appeal filed by him stands dismissed. The appeal filed by Banney Khan alone has been pressed and argued by the counsel for the appellant.

2. The facts on which this case is founded are that on the night between the 24th and 25th of May 1962. Mst. Nur Begum, daughter of Ghulam Hussain, is said to have disappeared from her house in the absence of her parents who had left for Mirpur Mathelo to attend on their Murshid. Ghulam Hussain, the father of Mst. Nur Begum, came to his house on the 27th of May 1962 and learnt from Abdul Aziz, Muhammad Ishaq, Muhammad Irshad and Hussain Bux that Mst. Nur Begum was missing from the house since the 25th of May 1962. In the meantime, Abdul Aziz, the maternal uncle of Ghulam Hussain learnt that Mst. Nur Begum had been produced by Banney Khan before the Mukhtiarkar and First Class Magistrate, Kand kot. He consequently went to the office of the Mukhtiarkar and found Mst. Nur Begum in Court. He also found Banney Khan and all the other accused there. He told the Mukhtiarkar that the girl was a minor and had been abducted from the house on the previous night and should, therefore, be handed over to him. The Mukhtiarkar, Sain Bux, however had recorded her statement and learnt that Mst. Nur Begum was sixteen years of age and was wanting to marry Wahid Raza, a co‑accused. He, therefore, sent her to a Medical Officer for examination regarding her age. The custody of Mst. Nur Begum' was, however, handed over to Dr. Khoso. She was again brought on the 26th of May 1962 before the Mukhtiarkar on which date she volunteered to go to her parents. The Mukhtiarkar consequently handed over the custody of Mst. Nur Begum to Abdul Aziz and Ghulam Hussain, the maternal grandfather and the father of the girl, respectively. Mst. Nur Begum was examined by Dr. Miss Surraya Hamiduddin who found that she was about 17 years of age. Ghulam Hussain P. W. 1, after he received the custody of the girl, lodged the first information report Exh. 5 at Kandkot Police Station on the 27th of May 1962, at 4 p.m.

3. The police during the course of investigation examined the witnesses and also collected the documents necessary for the purpose of establishing the case of the prosecution. After the usual investigation was completed by the Police, the appellants along with the acquitted accused were challaned.

4. The appellants, when questioned, denied the allegations made against them. The case put forward by Wahid Raza in his statement under section 342, Cr. P. C., was that the girl, Mst. Nur Begum had fallen for him, and that she had left her house of her own accord in the absence of her parents and came over to him and was wanting to marry him. Banney Khan has, on the other hand, stated that he had nothing to do with the removal of the girl from the custody of her parents. He has also stated that he was unconnected with Wahid Raza. According to his statement, Wahid Raza had brought Mst. Nur Begum to him and informed him that she ‑wanted to marry him and requested him to assist him in having her married. ‑ He has admitted that on Wahid Raza's repeated insistence he had taken Mst. Nur Begum along with him to Mr. M. A. Rashid the Assistant Commissioner.

5. The question whether Mst. Nur Begum left her house on the night between the 24th and 25th of May 1962 is not disputed. The evidence of Ghulam Hussain P. W. 1, Abdul Aziz P. W. 5, Muhammad Ishaq P. W. 7, Muhammad Irshad P. W. 8, Hussain Bux P. W. 9, arid Mst. Nur Begum P. W. 3 has estab lished this issue beyond doubt. Even the appellants have admitted that Mst. Nur Begum had left the house of her parents and come over to Wahid Raza on the night between the 24th and 25th of May 1962.

6. The only questions that need to be resolved in this appeal ate 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 certificate from the Municipal Register. Ghulam Hussain's evidence is to the effect that the age of the 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 the 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, anther 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 Surraya 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 a her age. The evidence of Dr. Miss Surraya 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.

7. The next question that will arise for consideration will be whether in the circumstances of this case Banney Khan will be responsible for an offence under section 363, P. P. C. The evidence on record, as I have already stated, conclusively estab lishes that the girl had left the house on the night between the 24th and 25th of May 1962 of her own accord. The conduct of the girl and the manner of her disappearance from the custody of her parents indicate conclusively that she had left the house of her own accord. The fact that Mst. Nur Begum had gone to the house of Banney Khan and told him that she wanted to marry Wahid Raza, the fact that she stated before the Mukhtiar kar in her statement, Exh. 11, that she was willing to marry Wahid Raza, the fact that she made a similar statement before Mr. M. A. Rashid, Assistant Commissioner, and the fact that she refused before the Mukhtiarkar to go to her grandfather Abdul Aziz on the day she was produced before him irresistibly lead to the conclusion that Mst. Nur Begum had left the house of her parents willingly. Even if it be assumed that she had not left the house of her own accord, the only person who could have been conceivably responsible for her removal from the house of her father, directly or indirectly, would be Wahid Raza alone. There is no warrant for disbelieving the statement of Banney Khan when he says that it was Wahid Raza who had taken Mst. Nur Begum to him for the purpose of having a marriage with her. There is also no warrant for holding that Banney Khan B is not making true statement when he states that he took the girl to be grown‑up when he took her to the Mukhtiarkar for the purpose of his decision in the matter as to whether she should be married to Wahid Raza or not. The part played by Banney Khan, in my opinion, does not establish in the least that he had removed Mst. Nur Begum from the legal guardianship of her parents on the night of the incident. The case against Banney. Khan would have been entirely different if he had been charged with an offence under section 366, P. P. C. He has been merely convicted of an offence under section 363, P. P. C. which concerns itself with the offence of removal of Mst. Nur Begum from the legal guardianship of her parents. The evidence on record, in my opinion, has conclusively established that Banney Khan was not concerned with the removal of Mst. Nur Begum from the legal guardianship of her parents. Under these circumstances, the evidence brought on record against Banney Khan appears to me to be doubtful in regard to his complicity with the offence under section 363, P. P. C. Giving Banney Khan therefore the benefit of doubt, I accept his appeal and acquit him. He is on bail. His bail bonds stand cancelled and the surety dis charged. S. A, H. Appeal accepted,