' Muhammad Rafiq petitioner was convicted by Ch. Wahiduddin, Magistrate Section 30, Sheikhupura, under section 376, P. P. C. And sentenced him to four year's R. I. Convict's appeal was dismissed on 25-8-76 by the Additional Sessions Judge.
2. The case against the petitioner is that he married Mst. Surrayya, a young girl of below 13 years of age. The consent for marriage was given by her mother. The marriage consummated. In his statement at the trial, the petitioner admitted having married Mst. Surrayya, but according to him, she was not a minor. Mst. Surayya was medically examined and according to the medical report, she was between 12/13 years of age. This certificate, however, could not be proved. I find that there is a birth certificate in the record of this case which indicates that she was about 12 years and three months old at the time of her marriage. -This certificate has not been exhibited at the trial.
However, it is an attested copy of the extract from the register of birth of district Lahore. P. W. 2 Aliah Ditta father of Mst. Surrayya also gave her age to be less than 13 years. Under these circumstances, I am of the view of that there is sufficient proof that Mst. Surrayya was less than 13 years of age at the time of her marriage. In the F. I. R. The prosecutrix has said that after her Nikah, the marriage was consummated. The petitioner has not denied the fact of consummation of marriage. The offence under section 376 is satisfactorily proved against the petitioner. Since the petitioner had sexual intercourse with his wife. Mst. Surrayya who was below 13 years of age, therefore, the maximum sentence cannot be more than 2 years. Under these circumstances, I reduce his sentence to two years' R. I. Appeal accepted to this extent only.