KHADIM HUSSAIN vs THE STATE
This petition for leave to appeal arises out of a judgment of the Lahore High Court dismissing the petitioner's criminal revision against his conviction and sentence under section 363 of the Pakistan Penal Code 1860 for kidnapping a minor female from the custody of her guardian. The core legal question revolved around the determination of the abductee's age on the date of the occurrence based on conflicting birth entries and documentary evidence. The Supreme Court of Pakistan held that the concurrent findings of the lower courts regarding the age of the abductee were unexceptionable, noting that the birth entry relied upon by the defence pertained to another individual and that affidavits and admissions obtained from the minor while under the petitioner's influence held no evidentiary value. Furthermore, the Court declined to interfere with the sentence on the ground of delay, as the petitioner himself was responsible for the procrastination in the High Court. The petition was accordingly dismissed.
- Whether concurrent findings of lower courts on the question of an abductee's age warrant interference by the Supreme Court?
- Can affidavits and admissions regarding age executed by a minor while under the influence of the accused be relied upon?
- Does delay in the hearing of a revision petition in the High Court justify reduction of sentence by the Supreme Court when the accused is responsible for the delay?
- Section 363, Pakistan Penal Code 1860
- Section 366, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal calls in question the judgment dated 27th April. 1976 of the Lahore High Court whereby the petitioner's Revision against his conviction and sentence of 4 years' R.
1. And fine of Rs, 1,000 under section 363, P. P. C., was dismissed.
2. ' A case was ragistered against the petitioner and others under sections 366/376, P. P. C. On the allegations that Mst. Anwar Mumtaz a minor of 15 years was kidnapped by them from the custody of her guardian-father and thereafter the petitioner raped her. Petitioner's defence plea was that the abductee was over sixteen years of age and that she contracted valid marriage with him, out of her free will.
3. ' The trial Court, the appellate Court and a learned Single Judge in the High Court, on examination of evidence, accepted the prosecution version of the occurrence in so far as the kidnapping part thereof is concerned.
4. ' Learned counsel for the petitioner has contended that the only point for consideration at this stage is whether from the admitted material on record a correct conclusion has been drawn, with regard to the age of the abductee on the date of occurrence, namely 4th July, 1962. He has made comparison between the two copies of birth entries produced by the prosecution and the defence, Exh. PE and Exh. DE which show different dates of birth. The date of birth in Exh. DE undoubtedly prima faci supports the petitioner, but on careful scrutiny we have discovered that it does not relate to the abductee. Her name is not correctly mentioned in it. Her father's caste and profession mentioned therein are different from what is mentioned in his deposition as a witness. Even his place of residence shown in this copy is wrong. Learned counsel, in order to meet the adverse inference which can be legitimately drawn from these circumstances, relied on the so-called conduct of the abductee in swearing affidavits and making some admissions qua her name and age which favour the petitioner. We are not impressed by this argument. Material relied upon, as is usual in such like cases, was obtained from the mino when she was still under the influence of the petitioner. It cannot be depended upon. The concurrent findings of the learned Courts below on question of age are unexceptionable. We find no force in the contention of the learned counsel.
5. Learned counsel also prayed for reduction of sentence. He has drawn our attention in this behalf to the delay in the hearing of the revision petition in the High Court. This Court normally does not interfere with legal sentence. Moreover, in this case, as noted in the impugned judgment, the petitioner himself was responsible for the delay.
6. ' This petition is without any force and is dismissed.