Z. A. CHANNA , J.-These two constitutional petitions assail the convictions and sentences awarded to two persons, namely, Mst. Hanifa and Qasim Ali, to whom we will refer to as the detenus, by a Summary Military Court at Karachi, which sentenced Mst. Hanifa under M. L. R. 34(l) to imprison-- ment for 9 months and also to pay a fine of Rs. 1,000, in default of which she was to suffer R. I. For one month, while Qasim Ali was sentenced under the said Regulation to R. I. For 9 months, whipping of 5 stripes and also was required to pay a fine of Rs. 2,000, in default whereof he was to suffer R. I.
For 3 months.
2. The facts leading to the trial of the two detenus are that on 17-5-1978, at 10.15 hours, a F. I. R. Under section 363 was lodged at Korangi Police Station by one Haji Abdul Hamid that his niece, Mst.
Tabira, who had gone with a neighbour, detenu Mst. Hanifa, to see a doctor, had not returned and was missing since the previous day, and it was suspected that detenu Qasim Ali, who was employed as a Dispenser with Dr. Sarfraz Hussain at Korangi, had kidnapped her with the assistance of Mst. Hanifa. A search for Mst. Tahira and detenu Hanifa was made but they could not be located. It is said that detenu Qasim Ali had taken them to Hyderabad, from where they returned some 5 days later. Mst. Tahira, after her return, was sent for medical examination and her age according to the medical certificate was between 15 and 16 years. Furthermore, according to the medical certificate she appeared to have bad sexual intercourse but it could not be determined as to when the sexual intercourse had taken place. On the basis of the medical certificate, both the detenus were sent up for trial by the police in the Court of a Magistrate at Karachi, vide police charge--sheet dated 11-6-1978. The case was subsequently referred for trial to the Summary Military Court, which on 23-10-1978 framed a charge against the detenus under M. L.
R. 34(I). It might be stated here that M. L. R. 34(1) substantially reproduces the provisions of section 361, P. P. C. The Summary Military Court proceeded with the case from 23rd October to 26th of October, 1978, and on the latter date it convicted and sentenced the two detenus as stated above.
3. Mr. S. Nasiruddin has assailed the trial, conviction and sentences of the two detenus on 3 grounds. The first ground of attack was that the Summary Military Court has failed to follow the procedure laid down by the Army Act and the Rules framed thereunder for the trial of cases.
However, it has not been shown what particular rules or provisions of the Army Act have been violated and in what manner. We may also refer to rule 132 of the Pakistan Army Act Rules, 1954, which validates irregular procedure in certain cases unless it is shown that any justice has been done to the offender. Mr. S. Nasiruddin was unable to show us that in the instant case any injustice was done to the detenus by reason of any disregard of the procedural rules that may have been committed by the Summary Military Court.
4. It was next submitted by Mr. Nasiruddin that since the case had been challaned in an ordinary criminal Court its transfer to the Summary Military Court was invalid. M. L. O. No. 4, as modified by M.
L. O. 37, no doubt provides for transfer of a criminal case from an ordinary criminal Court for trial to a Military Court, but such transfer can only be ordered by a Zonal Martial Law Administrator and only oil the ground that such transfer is necessary for maintenance of law and order or public tranquillity or for expeditious disposal of any case in public interest. We enquired from Mr. Fazal Hussain Mirza, the learned Assistant Advocate-General, whether any order by the Zonal Martial Law Administrator had been passed transferring the instant case from the ordinary criminal Court to the Summary Military Court. He was unable to show us any such order. We have also ourselves gone through the record of the Military Court and find no such order on the record.
5. It was finally contended by Mr. S. Nasiruddin that even otherwise the trial of the detenu by the Military Court was illegal and that the Summary Military Court bad no jurisdiction in the matter. As already indicated, the detenus were charged with having committed an offence under M. L. R. 34(1), which corresponds to the provisions of section 361, P. P. C. In other words, it seeks to punish persons who have kidnapped a minor. For the purposes of the said M. L. R., a minor has been indicated as a male person under the age of 14 years and a female under the age of 16 years, Mr. S. Nasiruddin submitted that though the medical certificate in the instant case is to the effect that Mst. Tahira was between 15 and 16 years of age, and, evidence in support of that certificate was given by both Dr. Abdul Hadi and Dr. Hamida Qureshi, who had examined Mst. Tahira, the determination of age by medical examination, including ossification test, cannot give an exact idea of the age of the person examined and there would always be a margin of error of 6 months on either side. In support of his contention, the learned counsel relied upon the decision of the Supreme Court reported in 1970 SCMR 30 and two decisions of this Court reported in 1975 P Cr. L J 453 and 1975 P Cr. L J 926. These decisions undoubtedly support the contention of the learned counsel. In fact, it is by now established rule that ascertain margin of error has to be allowed in the case of determination of age by medical examination, including X-ray examination. Furthermore, the medical evidence and the medical certificate's in the instant case themselves indicate that Mst. Tahira was between 15 and 16 years of age, and thus they did not exclude the likelihood that she was 16 years of age at the relevant time, Possibly, she could even be older. She was a resident of Karachi and apparently born in this city. It should not have been difficult to obtain her birth certificate and thereby exclude all possibility or doubts as to her real age. Since it has not been established that Mst. Tahira was below 16 years of age, the detenus could not be convicted under M. L. R. 34(1) as has been done by the Summary Military Court. Furthermore, as already pointed out, it has not been shown that the transfer of the case from the Summary Military Court was in accordance with the provisions of M. L.
O.
37. Accordingly, for both these reasons, B we hold that the trial and the conviction of the two detenus by the Summary Military Court was not in accordance with law. We would accordingly quash the convictions and the sentences of the detenus, allow the two petitions, and direct that the two detenus be set at liberty, if not required in any other case.