Muhammad Masood was tried for the offence under sections 376 and 363, P. P. C. By Mr. Hanif; Corporation Magistrate Lahore and on 2September, 1967 he was acquitted of the charge under section 376, P. P. C. But was convicted and sentenced under section 363, P. P. C. To five years and fined Rs. 100, in default to suffer three months' R. I. Further. Appeal of the convict is before me.
2. According to the prosecution Mst. Nasreen Akhtar was enticed away on 14th December, 1964 by Mst. Hafizan and Firdaus from the house of her brother Mr. Muhammad Naseem because they wanted to marry her of with their brother but her: hand was refused to him. Later she was taken by the appellant to the house of P. W. 2 Noor Elahi where she was kept for the night and raped by him.
One Muhammad Yousaf who is a neighbour of Noor Elahi, got suspicious and enquired from him about the woman in his house. The appellant admitted that she was not his were and that he had sexual intercourse with her. Muhammad Yousaf and. Noor Elahi produced him at Police Station, Lower Mall Lahore on 16December, 1964. Her brother Muhammad Naseem also appeared at the police station and made report (Exh. P. A.) on the basis of which formal F. I. R. (Exh. P. A. 1) was registered and the accu--sed sent up for trial.
3. At the trial Mst. Nasreen did not accuse him of rape. He was, therefore acquitted of the charge under section 376, P. P. C. 1n this regard it may be mentioned that the appellant did not entice her, away from the house of her brother. He allegedly took her with bin from the gate of the Mayo Hospital where she was standing at night and she went with him to his house. After spending the night with him be sent her to her house. The sole question for determination in this case would be whether Mst. Nasreen Akhtar was below 16 years of age at the time the accused took her to his house. In this regard there is the solitary statement of her brother who admitted that he had fournd th sisters and that Mst. Nasreen Akhtar was 141 years of age on the day of occurrence. A birth certificate was produced to prove this fact. But the name of the girl is not mentioned in the birth certificate. If he had only one sister then it would have made no difference. Since he has four sisters, therefore, it is not possible to ascertain as to which sister of the witness the certificate related to. It may be mentioned that Mst. Nasreen Akhtar who was declared hostile at the trial did not support the prosecution case. Not only the statement of Muhammad Yousaf, is contradicted, but the prosecution case is not supported by the prosecu--trix. I, therefore, give the appellant benefit of doubt, accept his appeal, set aside his conviction and sentence and acquit him. He will stand discharged of his bail bonds.