1. ' RAJA MUHAMMAD KHURSHID KHAW, J.-Muhammad Khan appellant was convicted and sentenced to 3 years' R. I. And a fine of Rs, 50 under section 363 of Penal Code by a Magistrate First Class, Kotli.
2. On appeal before the Sessions Judge, Mirpur, the learned Judge on 24th of May 1969, maintained the sentence passed by the trial Magistrate. The appellant then rolled in a revision petition before the High Court and the learned Single Judge partially accepting the revision petition, reduced the sentence from 3 years' R. I. To one year's R. I. Vide order dated 11-3-1970. The fine imposed however, was kept intact.
3. ' The conviction order passed by the learned Judge of the High Court under the provisions of Azad Jammu & Kashmir Courts and Laws Code, 1949 after grant of a fitness certificate for filing an appeal, was assailed by way of an appeal (known as Letters Patent Appeal) before the Division Bench of the High Court.
4. ' The Bench seised with the case on 15-1-1971 to have clarity about the age of Mst. Qamar Maqsood, the abducted girl thought it fit and advisable to send for the original School Admission Register alongwith the admission form of Mst. Qamar Maqsood and her brother, Khalid Pervala.
5. Consequently, the record was placed before the Court and the statement of Mohammad Nawaz, a teacher, resident of Khuiratta as a Court fitness was recorded on 16-12-1973. The copy of admission register Exh. CWB showing the date of birth of Mst. Qamar Maqscod alongwith the original application Exh. CWC and the admission form of Khalid Pervaiz, Exh. CWD and certified copy of the register Exh. CWA showing the entry of his age was placed on the record.
6. ' The case still awaited final decision in the High Court when by operation of law, all the Letters Patent Appeals stood transferred to the Judicial Board (as it was so named then). The Judicial Board was at some later stage under the operation of an amendment in the Azad Jammu & Kashmir Interim Constitution Act, 1974 was renamed as Supreme Court. This is how the case is before this Court.
7. ' In view of the fact that the leave to file an inter-Court appeal was granted by the Single Judge of the High Court, it will be deemed that the appeal before this Court is an appeal by special leave.
8. ' The prosecution case in brief is that the appellant on the night falling between 14th and 15th of March 1966 kidnapped Ms:. Qamar Maqsood, a minor daughter from the custody of her legal guardianship. According to the prosecution, the girl at that time was below 16 years of age. She was recovered from a hotel owned by one Dad on 19-3-1966 from Mirpur.
9. ' We have identical finding of facts of all the Courts below that the girl was kidnapped by the appellant from the lawful guardianship but the Courts hold the view that she was a consenting party in the transaction and there is ample evidence in support of this finding. The only question thus which remains to be determined and which has substantial import and significance is the age of the girl at the time of the occurrence.
10. ' The learned Advocate-General at the very outset argued that the concurrent findings of fact arrived at by the Courts below about the age of the girl cannot be reopened and rescrutinized by this Court. According to him, opening and rescrutinizing this factual aspect afresh tentamounts rehearing of the case which is not within the competence of this Court. His stand concisely is that in an appeal before this Court, the finding of the High Court can be interfered with only if it is found that the High Court has misdirected itself in the legal approach of the case. The Supreme Court as he carves his case, cannot in disregard of the finding of the High Court substitute its own finding based on the reappraisal of the evidence.
11. ' Leaving aside the force behind the stand taken by the Advocate-General the instant case before us has a distinguishable characteristic in so far as additional evidence without any objection on the part of the State about the age of Mst. Qamar Meqsood was recorded before the Division Bench of the High Court. Naturally, the evidence thus taken shall have to be scrutinised by this Court. The Advocate-General when faced with this position frankly conceded that under these circumstances, the additional evidence recorded before the Division Bench of the High Court about the age of Mat.
12. Qamar Maqsood can be appreciated and gone into to ascertain the age of the girl but at the same time, he was firm to say that evidence on a factual point duly scrutinized and appreciated in the High Court cannot be made subject of rescrutiny in this Court. The appraisal of the evidence made by the Supreme Court may prompt this Court to arrive at a conclusion inconsistent with the finding of the High Court. It is in this view that the Supreme Court according to the Advocate-General should stay its hands to assess the weight of the evidence as it amounts to retrial and rehearing of the case which only a full constituted Court of Criminal Appeal can do.
13. ' The question posed by the Advocate-General having bearing on the jurisdiction of this Court in Criminal Appeals has vital importance and in our view, it needs determination for settling the practice of this Court. The Supreme Court of Azad Jammu & Kashmir is still in its infancy. It was recently constituted under the provisions of the Azad Jammu & Kashmir Interim Constitution Act, 1974 in March 1975. Obviously, we lack case-law of this Court on the point. But the powers of the Supreme Court of Pakistan and Supreme Court of Azad Kashmir derived from the respective Constitutions of Pakistan and Azad Kashmir are identical. Under the provisions of subsection (10) of section 42 of the Interim Constitution Act, 1974, the Supreme Court of Azad Kashmir is a fully constituted Court for hearing Criminal Appeals from the judgments and orders passed by the High Court. The Supreme Court of Pakistan derives its powers from the Constitution of the Islamic Republic of Pakistan, 1973 which has identical provision in the matter. ThereLre, the powers of this Court in hearing Criminal Appeals are at par with the powers of the Supreme Court of Pakistan. It would, therefore, be legitimate for us to seek guidance from the practice of the Supreme Court of Pakistan followed in such matters.
14. ' The Supreme Court (Pakistan) in a case entitled Noora v. State (1), was faced with a similar question. In that case, the judgment of the Division Bench of the High Court of West Pakistan (as it then was) upholding the conviction of one Noora for the murder of one Munda and confirming the sentence of death, was assailed by way of an appeal by special leave. The sentence of death imposed on the other co-accused Shera was, however, not confirmed and he was only sentenced to imprisonment for life. The appeal was heard originally by a Bench consisting of four Judges of the Court including Mr. Justice Hamoodur Rahman, C. J., Mr. Justice Sajjad Ahmed Jan, Mr. Justice Yaboob Ali and Mr. Justice Salahuddin Ahmed (all the Judges
(1) PLD 1973 SC 469 have since been retired). The main judgment was written by Mr. Justice Sajjad Ahmed Jan who after consideration of the evidence came to the conclusion that "it would not be safe to uphold the conviction of the appellant on the material produced in the case". Mr. Justice Hamoodur Rahman Chief Justice (as he then was) concurred with the finding but Mr. Justice Yaqoob Ali and Mr. Justice Salahuddin Ahmed, Judges disagreed and in their dissenting judgment indicated that their disagreement was based on the ground that the order and sentence passed by a High Court in a criminal matter cannot be interfered with by the Supreme Court "by a process of rehearing the case".
15. ' In view of the importance of this question affecting the scope of jurisdiction of Supreme Court of Pakistan in Criminal Appeals, it was felt desirable in the interest of settling the practice of the Court to have the appeal reheard by a larger Bench instead of adopting the procedure in the case of Adalat v. The Crown (1), wherein it was held that in a case of equal division in the Supreme Court, the judgment of the High Court was to prevail. Mr. Justice S. Anwarul Haq was associated in the larger Bench.
16. ' Mr. Justice Hamoodur Rahman, Chief Justice (as he then was) wrote the main judgment. The learned Chief Justice very ably after discussing in detail the legal history and background of the practice followed hitherto on the paint by the Privy Council and the superior Courts of United States of America and after a thread bare disection of the law enunciated in host of rulings of the Privy Council, Supreme Courts of India and Pakistan, returned a finding that in appropriate criminal cases, the Supreme Court in appeal is competent to reopen the case and scrutinise the evidence afresh. The learned Judge observed that :- "It is not right that the opinion of the Courts below, and particularly of the Courts which bad the advantage of listening to the witness giving evidence and watching his demeanour, should be disregarded by the Supreme Court or given no weight at all. As an ultimate Court, it must give due weight and consideration to the opinions of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below ; but it should first satisfy itself that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untramelled by the opinions of the Courts below. The Supreme Court cannot merely content itself by saying that it will not interfere with a concurrent finding of fact, even if it appears to it that the concurrent finding was clearly based upon a misconception of the facts or was so patently impossible or was so clearly opposed to physical laws that to leave it unaltered would amount to perpetuating an injustice. In such circumstances the Court ought not to have hesitation in interfering with such a concurrent finding.
17. Therefore, once this Court has come to the conclusion that the findings of the Court appealed from cannot be maintained, then it should have all the powers of that Court and
(1) PLD 1958 P 0 171 should be in a position to do all that the Court appealed from could do in the circumstances."
18. ' All the four Judges concurred with this proposition of law enunciated by Mr. Justice Hamoodur Rahman.
19. ' Respectfully agreeing with the law laid down in the above-cited case, we hold that once this Court has come to the conclusion that the finding of the Court appealed from is based on "misconception of facts, or was so patently impossible or was so clearly opposed to physical laws", then it undoubtedly has all the powers to appreciate and scrutinise the evidence in the same way as that of the High Court.
20. ' Let us now proceed to determine the age of the girl on which, as stated earlier, hinges the fate of the case. We have oral as well as documentary evidence on the point. The documentary evidence in the trial Court besides oral evidence consisted of the attested copy of the entry of the age o Mst.
21. Qamar Maqsood made in the School Register. This piece of evidence by itself is no evidence. Under section 35 of the Evidence Act, an entry in a School Register about the age of a person is not of much evidentiary value if the source giving the information about the age is missing. The wisdom behind it is that until it is proved that such entry was made by a person having special means of knowledge about the age of a person, it does not carry much evidence in it. Therefore, we hold that the entry of age of the girl contained in the certified copy Exh. CWB though admissible, carries no evidentiary value. But in the instant case (in the shape of additional evidence) we have original application Exh. C WC made to the Headmistress, Government Primary School, Khuiratta on 4-11- 1957 seeking admission for Mit. Qamar Maqsood. On the back of this application, the age of the girl is entered as 7 years and 6 months. The entry is made at the instance of Mit. Aziz Begurn, her mother. Therefore, it carries evidence in it di cult to be disbelieved. According to this entry, the girl was born on 4th of May 1950. She was kidnapped on the night falling between 14th and 15th of March 1966. She was as such less than 16 years of age at that time.
22. ' In the admission register of Government College, Khuiratta, the date of birth of Khalid Pervaiz, her brother who according to her own statement was two years younger to her, was entered as 15-2- 1950. The learned counsel for the petitioner tried to make capital out of this entry. According to him, if Pervaiz was two years younger to his sister, Mit. Qamar Maqsood, it has to be necessarily believed that she was born in 1948 and was above 16 years of age at the time of her kidnapping.
23. ' After giving a deep thought to the argument, we have come to the conclusion that it has no substance.
24. ' Mohammad Nawaz, CW, tells us that in those days a child could not get admission until he attained the age of 6 years. It is significant that Pervaiz's age was entered exactly as 6 years not a day less or more at the time of his admission. We are as such of the view that the age of the boy was pre-dated simply to make him eligible for his admission. There is still another factor which belies Pervaiz's entry of age in the Register. If we believe this entry to be correct, then we have also to believe that Pervaiz was born only 4 months and 3 days after the birth of her sister, Mst. Qamar Maqsood. It is difficult for us to believe this impossibility.
25. ' The oral evidence on the question of age of Mit. Qamar Maqsood is on all fours with the documentary evidence. We have on the point the statement of Mst. Qamar Maqsood and her uncle Nazir Ahmed. Nazir Ahmed states that his brother Mahboob Ahmed whose daughter Mst. Qamar Maqsood is, was married one or two years before the war of Liberation and the girl was born 5 to 6 years after the marriage. The statement is to be interpreted in favour of the accused and as such we take the marriage to have taken place two years before partition and the birth of the girl to have taken place 5 years after the marriage. The marriage thus would have taken place towards the end of 1949 and the girl must have born in 1950. The documentary evidence thus finds ample support from the oral evidence as about the age of the girl. Therefore, we find no material to hold that Mst. Qamar Maqsood was above 16 years of age at the time when she was abducted.
26. ' Lastly remains the sentence. In the present case, the girl kidnapped at the relevant time of occurrence is proved to be just below 16 years of age. A month or little more would have taken her above 16 years of age. Consenting party as she was, it is not a bad case of kidnapping though technically it amounts to such. The appellant also had to face protracted trial spreading over many years. Taking all these facts into consideration, we feel that the sentence passed against him is excessive. We, therefore, accept the appeal to the extent of reducing his imprisonment from one year's I. To 4 months' R. I. The fine imposed, however, shall remain intact. Appellant's bail bond is cancelled. He shall be taken into custody to serve the unexpired period of his sentence. . Sentence reduced.