1. MUHAMMAD AFZAL ZULLAH, J.-This jail appeal through leave of this Court is directed against judgment, dated 24-2-1979 of the Lahore High Court ; whereby the appellant's conviction and sentence of. Death, under section 364-A, P. P. C., was confirmed.
2. The prosecution case was launched through the F. I. R., dated 25-11-1969, at Police Station Tibbi, Lahore, by one Taj Din, who claimed to be a paternal uncle of Mst. Hamera (P. W.), abductee.
3. According to this report, she was playing in the bazar on 20-11-1969, that somebody kidnapped her.
4. Mst. Hamera, who at the time of kidnapping was stated to be of five years age, was recovered by the police from one Bashir, a waterman of Ghotki, district Sukkur, in 1977. In the meanwhile, she had appeared in several films as a child star.. Taj Din was not examined at the trial. The father of Mst.
5. Hamera appeared as (P. W. 2) and stated that he was not informed by Taj Din about kidnapping of the child and that he learnt about the same three months later. He searched for his daughter but without any success for seven years. Ultimately he found her at Ghotki in the house of the waterman.
6. Mst. Hamera aged 12 years at the time of examination in 1977, deposed that the appellant after offering her a lollipop took her to a film studio from there she was taken to Karachi where she was confined in a locked room ; then he took her to his parent's house at Khanpur and subsequently to Multan. She was again brought by him to Lahore in a film studio where she was made to work in the films named. Asu BillMery Dosti Tera Piar, Shikar, Bhai Bahn, Aaina our Sooratand himself appropriated the remuneration of her work. She further asserted that whenever she .Used to refuse working in the film, he would torture her and confine her. In order to show that she was subjected to slavery, an assertion was made by her that she used to be fed by him on dry bread. The statement further proceeded that she was taken to Ghotki in the house of Bashir, waterman, and he was told that her parents had died and that "she being his only daughter without mother, I be maintained by Bashir waterman. Bashir waterman agreed." Ultimately, she further deposed, her father came and recovered her from the house of Bashir waterman. The police also arrived and arrested the appellant. Under cross-examination, she was confronted with her earlier statement and omission therein regarding certain aspects of the alleged torture and the feeding on the dry bread like a slave.
7. Bashir waterman also appeared as a witness and stated that the appellant had met him a month before the recovery of Mst. Hamera and requested him to keep her with him. "He represented that she was his daughter. He took pity and kept her in his house." He further deposed about her recovery.
8. When questioned, under section 342, Cr. P. C., the appellant denied the prosecution case and made the following statement :- "There came a flood, I lost two sisters, one brother. I went to Sind. I became malshi. I used to sleep in the hotel of Bashir P. W's. Brother. I deposited my earning Rs. 900 with him. On my demand he refused to return the money. He fell out with me and involved me in this case falsely."
9. Both the learned Courts below believed the prosecution version contained in the testimony of Mst.
10. Hamera convicted and sentenced. The appellant as noted earlier. Leave to appeal was granted on jail petition to consider the question whether the age of Mst. Hamera at the time of Kidnapping was less than 10 years and whether the offence under kidnapping section 364-A which is punishable with death, has been made out.
11. Learned counsel for the appellant has tried to show that the evidence regarding birth entry of Mst.
12. Hamera as being of 1964 is doubtful. He has also tried to show that the entry in this behalf in the relevant record has been tampered with. Be that as it may, it will not make any difference in so far as the present case is concerned because when examined by the trial Court on 30-6-1977 she was shown as 12 years of age and was then a student of 4th class. It was so stated by her in her particulars, given under oath. Her father Muhammad Bashir also gave her age as 12/13 years on 13- 6-1977. There is no recorded observation by the learned trial Court indicating that the assessment of age given by the father of Mst. Hamera or for that matter by herself, appeared to be incorrect.
13. Therefore, even if documentary evidence regarding her age is excluded from consideration, she would undoubtedly be much less than 10 years of age at the time of the offence which took place in November, 1969, Learned counsel also criticised the conduct and attitude of Tai Din and Bashir the uncle and father respectivelyof Mst. Hamera. According to him, from their attitude towards Mst. Hamera, they appeared to be consenting party in respect of her working in the films. He argued that her having appeared in so many films would in all probability furnish enough clue for both of them to have secured the custody of Mst. Hamera but they waited for several years. There seems considerable force in this argument. There is no explanation from the prosecution side with regard to obviously unexplainable conduct of both of them. It is also not explained as to how the father ultimately while living at Lahore or for that matter earlier at Karachi suddenly became aware that Mst. Hamera was living in a Mashki's house. It is interesting to note that professions of Taj Din and Bashir father of Mst.
14. Hamera is also similar. There is a reasonable possibility that Taj Din intentionally did not appear as a witness so as to avoid cross-examination and implication in that behalf. There is further strong possibility that he was a party to the initial kidnapping of Ysr. Hamera by the appellant and that is why the father of the girl was not informed about it for several months. Mst. Hamera, even according to her own admission, was not molested; she was treated well so as to impart her education upto 4th class during the period that she remained with the appellant ; and also, was made child artist. All this was not without the knowledge assistance and cover of her paternal uncle, namely, Taj Din.
15. The position of the father is not, however, as clear as that of uncle. A possibility cannot be ruled out that the facts were concealed by his own brother for some time and ultimately when he discovered that his daughter was making into child artist, he kept silence over it and ultimately got her recovered when she had stopped working in the films and had been handed over to the waterman.
16. All this, when read with the deposition of Mst. Hamera without the embroidery therein, which is not unusual for a child witness to introduce ; it becomes clear that she was removed from the constructive custody of her father by the appellant with the connivance of Taj Din. Thus, the offence of kidnapping was no doubt committed but the question arises whether in the circumstances narrated above, the offence under section 364-A, P. P. C. Was made out. Section 364-A reads as follows .- "Kidnapping or abducting a person under the age of ten. Whoever kidnaps or abducts any person under the age of ten, in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt. Or slavery, or to the lust of any person shall be punished with death or with (imprisonment for life) or with rigorous imprisonment for a term which may extend tofourteen years and shall not be less than seven years."
17. It is obvious from the deposition of Mst. Hamera, which can be legitimately considered for discovering the purpose and intention underlying the kidnapping, that she was not kidnapped to be murdered or subjected to grievous hurt, or slavery, or to the lust nor was there any such danger.
18. In the circumstances, discussed above, it was a simple case of kidnapping from lawful Guardianship which is covered by the definition contained in section 361, P. P. C. And is punishable under section 363, P. P. C. With a sentence which might extend seven years' R. I, We accordingly partly allow this appeal and set aside the conviction and sentence under section 364-A, P. P. C. Convert the same to one under section 363, P. P. C. And award the sentence of seven years' R. I. However, in view of the attitude of the father and strong possibility of complicity of the real uncle of Mst. Hamera in offence, we further allow to the appellant the benefit under section 382-B, Cr. P. C.