' Faqir Muhammad was tried by the Sessions Judge, Faisalabad, under section 364-A, P.P.C. For kidnapping Mst. Asima Parveen aged 6/7 years, with intent to commit rape upon her. The learned trial Judge, by his judgment, dated 6-5-1984, convicted Faqir Muhammad under section 364-A, P.P.C. Read with section 511 of the Pakistan Penal Code and sentenced him to seven years' rigorous imprisonment. The accused was also granted the benefit of section 382-B, Cr.P.C. The appeal (Criminal Appeal No, 9-J of 1984) preferred by Faqir Muhammad, convict against his conviction and sentence is now before me for disposal.
2. The brief facts of the case are that Mst. Asima Parveen P.W.3, a minor child, aged 6/7 years who was outside her house playing, suddenly disappeared and could not be located by her mother.
Accordingly, intimation was sent to her father Muhammad Ramzan P.W.1, who was at that time in Ghalla Mandi Samundri. Muhammad Ramzan P.W.1 rushed to his house and after hearing that his daughter was not locatable, proceeded in search for her alongwith Nazir Hussain and Rehmat Ullah (given up P.Ws.). Near the graveyard, these three persons met Mirza Bashir Ahmad, P.W.2, who on inquiry informed them that he had seen a person taking away a minor girl aged 6/7 years in the direction of the canal. All four persons then proceeded in that direction, when on the bank of the watercourse they found Faqir Muhammad accused carrying Mst. Asima Parveen P.W.3 in his arms.
They shouted to the accused on which he left the girl and started running. The witnesses also ran after him and apprehended him. After his capture, Faqir Muhammad told them that he had kidnapped the girl for the purposes of rape. He also disclosed his identity. Muhammad Ramzan, P.W.1 proceeded to his house whereafter leaving his daughter there, he proceeded to Police Station Samundri, where he lodged F.1.R. Exh. P. A . At 2-00 p.m., which was recorded by Jan Muhammad, M.H.C., P.W.9. Faqir Muhammad, accused, was taken into custody by the police the same day.
3. After completing the necessary investigation, the challan against the accused was sent up.
4. At the trial, the prosecution produced Muhammad Ramzan complainant, P.W.1 and Mst. Asima Parve.En, P.W.3 in proof of the isappearance of the latter from precincts of her house and the said two witnesses and Mirza Bashir Ahmad, P.W.2 with regard tp the capture of Faqir Muhammad when he was carrying and taking away Mst. Asima Parveen in his arms.
5. The accused denied all the accusations that were levelled against him. In his statement under section 342, Cr.P.C., he submitted that he had been falsely implicated due to misunderstanding that he was a resident of Chak No, 93-6R, Tehsil and District Sahiwal, that on the day of occurrence he was going to Gojra to get his eyes treated, that he came to Samundri by bus from where he had to take another bus for Gojra and that when he sat in a field to urinate he was apprehended by the witnesses due to a misunderstanding. He finally averred that he had nothing to do with the commission of the offence and that he was innocent. He did not produce any evidence in defence.
6. The learned trial Judge, relying upon the evidence of Muhammad Ramzan, complainant, P.W.1, Mirza Bashir Ahmad, P.W.2 and Mst. Asima Parveen, P.W.3, convicted and sentenced the accused, as stated in para. 1 above.
7. This is a Jail appeal. Colonel Abdul Rashid, Advocate has appeared for the State. With his assistance, I have gone through the oral and the documentary evidence in the case.
8. The kidnapping of the minor girl in the afternoon on 1-7-1982 is proved by Mst. Asima Parveen, P.W.3 herself, who, in her evidence submitted that she was playing in front of her house at that time when Faqir Muhammad appellant came to her and told her that her mother was washing clothes at the Rajbah and that she should go there and that the appellant then picked her up in his arms and took her towards the Rajbah, where some other women were washing clothes, but her mother was not present. She further stated that the appellant then began to carry her away when she started weeping and that she was finally rescued by her father, Muhammad Ramzan, P.W.1, her uncle, Mirza Bashir Ahmad, P.W.2 and other persons, who also apprehended the appellant. In cross- examination she stated that when the appellant picked her up from near her house no other person or women was near her at that time. She denied the suggestion that some other persons had kidnapped her. The said child who was a minor was put questions by the learned trial Judge to test her intelligence and credibility, the answers to which showed she understood the questions and could answer the same intelligently. Nothing appears in the evidence to show why the statement of Mst. Asima Parveen, P.W.3 cannot be accepted. In these circumstances, the evidence of this kidnapped child alone is sufficient to prove the charge of kidnapping against the appellant.
9. The apprehension of the appellant on the same day, as he was attempting to carry away the minor girl to some destination outside the village, is proved by Muhammad Ramzan, P.W.1, Mirza Bashir Ahmad, P.W.2 and Mst. Asima Parveen, P.W.3. The version of Muhammad Ramzan, P.W.1 and Mirza Bashir Ahmad, P.W.2 already stands recorded in para 2 above and need not be repeated. Mst.
Asima Parveen, P.W.3 also affirms the capture of the appellant and her release at the hands of these two witnesses and the other persons. Apart from some minor discrepencies, nothing appears in the evidence to show that the version of these witnesses is untrue or cannot be accepted with any degree of safety. None of these witnesses has any enmity or animosity against the appellant.
The case of the prosecution, therefore, clearly stands proved to the hilt at least where the question of kidnapping of the minor girl is concerned.
10. The only question that now remains is that relating to the offence committed by Faqir Muhammad, appellant. Muhammad Ramzan, P.W.1 and Mirza Bashir Ahmad, P.W.2 clearly state that the appellant after his capture, confessed before them that he had kidnapped the minor child for the purposes of committing rape upon her. I am not prepared to accept this part of their statement as it appears unnatural that a person, captured in such circumstances, would make any such admission.I think this part of the statement appears to have been engineered at the instance of the Investigating Officer, to bring the case within the ambit of section 364-A, P.P.C. Taking all circumstances into consideration, I think a case under section 363, P.P.C. Stands made out against the appellant and I hold him guilty under that section and sentence him to six years' rigorous imprisonment for the said offence. The appellant shall also be entitled to the benefit of section 382- B, Cr.P.C.
11. For the foregoing reasons, this appeal is partly accepted, in terms of alteration of conviction and reduction in sentence as stated above.