' LEHRASAP KHAN, J.--Salamat Masih (19) has been convicted by a learned Additional Sessions Judge, Gujranwala, vide judgment, dated 24-11-1982, under section 364-A, P.P.C. For abducting a female child Mst. Ishrat, aged six years, for subjecting her to sexual intercourse and has been sentenced to death.
2. The convict has challenged his conviction and sentence through the present appeal, viz. Criminal Appeal No,647 of 1982, while the matter also stands referred to us under section 374, Cr.P.C. Vide Murder Reference No,30 of 1983, seeking confirmation of the death sentence awarded to the appellant. Both these matters shall be disposed of by this judgment.
3. The occurrence in this case allegedly took place on 6-9-1982 at 1-30 p.m. In Mohallah Ramzanpura, Gujranwala City, at a distance of one mile from Police Station Baghbanpura, Gujranwala. The occurrence was reported to the police on the same day by Muhammad Ismail P.W.6, the father of Mst. Ishrat aforesaid through statement Exh.P.A. Which he made before Muhammad Yaqoob Head Constable P.W.7 at Chowk Ghorey Shah, Gujranwala at 3-00 p.m. Formal F.I.R. Exh.P.A./1 on the basis of the aforementioned statement Exh.P.A. Was recorded at the police station at 3-20 p.m. The same day by Munir Ahmad, M.H.C. P W .1.
4. As for the details of the occurrence, it has been stated that at the eventful time the appellant Salamat Masih lifted Mst. Ishrat while she was playing in the street in front of the Carpet Factory of Muhammad Arshad and Muhammad Yasin P.Ws. 3 and 4, respectively. He tried to gag her mouth by placing his Muffler, but she was able to raise alarm which attracted Muhammad Arshad and Muhammad Yasin, who challenged the appellant whereupon he threw the girl and attempted to run away but said Muhammad Arshad and Muhammad Yasin gave him a chase and were able to catch hold of him at a short distance. They brought him to their factory along with the abducted child. The appellant made an extra-judicial confession that he abducted the child as he intended to subject her to sexual intercourse. Muhammad Arshad and Muhammad Yasin knew the child as also her father. They intimated Muhammad Ismail (P.W.6), the father of the child about the occurrence who also came to the factory of Muhammad Arshad and Muhammad Yasin. In his presence also the appellant confessed that the child was abducted for being subjected to his lust.
The appellant who was arrested on the spot was produced before the police when it came to the spot.
5. In this case in all, seven P.Ws. Have been examined. Munir Ahmad P.W.1 is the author of the formal F.I.R. P.W.2 Muhammad Ishaq constable is also a formal witness. Muhammad Yaqoob P.W.7 is the Head Constable who recorded statement Exh.P.A. Of Muhammad Ismail P.W.6 and conducted investigation into this case. P.W.3 Muhammad Arshad, P.W.4 Muhammad Yasin and P.W.5 Mst.
Ishrat have testified at the trial as eye-witnesses to furnish the ocular account of the prosecution case. P.W. Muhammad Ismail, the father of the abductee, deposed about his having been intimated of the occurrence by Muhammad Arshad and thereafter having made statement Exh.P.A.
Before Muhammad Yaqoob H.C. P.W.7. The eye-witnesses, namely; Muhammad Arshad, Muhammad Yasin and Mst. Ishrat have fully supported the prosecution case as disclosed in the statement Exh.P.A.
6. The plea of the appellant at the trial was of denial simplicity. In reply to question No,6, "why this case against you", in his statement recorded under section 342, Cr.P.C. He stated:- "I am trained carpet weaver and have been working as such in different factories. About one year back I was employed by Muhammad Arshad and Muhammad Yasin P.Ws., in their factory as a weaver. Muhammad Ismail complainant is also the resident of the same locality. He used to visit the factory of Muhammad Arshad and Muhammad Yasin P.Ws. Frequently. My wages were paid for four or five months and thereafter Muhammad Arshad and Muhammad Yasin did not make any payment to me of my wages due to lame excuse of slump in their business. I demanded my wages from them but they kicked me out from the factory about one month prior to the occurrence. After that I started working as a weaver in the factory of one Latif situate at Nowshera Road. On 6-9-1982, I again made a demand of my wages from Muhammad Arshad and Muhammad Yasin P.Ws. Who were present in the factory alongwith Muhammad Ismail P.W. Instead of making payment to me of my wages they confined me in their factory and gave me fist blows and injured me and with the connivance of Muhammad Ismail P.W. They implicated me in this false case. I was medically examined on 7-9-1982 by Dr. Ishfaq Ahmad Khan, M.O., D.H.Q. Hospital, Gujranwala, in this behalf."
' No evidence, however, has been led by him in his defence to substantiate his plea that he was falsely involved in this case, at the behest of Muhammad Arshad and Muhammad Yasin P.Ws. Who owed him some money on account of his wages. He has, however, produced, the medico-legal report, dated 7-9-1982 Exh.D.B. Regarding his injuries. As per contents of this medico-legal report, three simple injuries caused by blunt weapon have been noticed on his buttocks in the form of abrasions. It has come on record that after his apprehension the appellant was given beating by persons who had assembled in the Carpet Factory of Muhammad Arshad and Muhammad Yasin.
Thus, the abrasions on the person of the appellant noticed by the doctor through medico-legal report Exh.D.B. Stand explained. The appellant has failed to produce any evidence to substantiate his plea that he was a trained weaver in carpet manufacturing or that he ever remained employed in the factory of Muhammad Arshad (P.W.3) and Muhammad Yasin (P.W.4).
7. While the learned counsel for the State supported the judgment under appeal, it has been contended on behalf of the appellant that:-
(a) the prosecution story is highly improbable and doubtful;
(b) no witness except Muhammad Arshad and Muhammad Yasin deposed about extra-judicial confession;
(c) no explanation of injuries to Salamat Masih appellant has come on record; and
(d) no one from amongst the persons who assembled in the factory of Muhammad Arshad and Muhammad Yasin after the occurrence appeared as a prosecution witness.
8. The occurrence of abduction of Mst. Ishrat (P.W.5), a tender age female child, took place in front of the factory of Muhammad Arshad and Muhammad Yasin at a distance of only 100 yards from the house of Muhammad Ismail, the father of the abductee. In these circumstances, Muhammad Arshad and Muhammad Yasin are the most natural witnesses of the occurrence. There is nothing on the record to suggest in any manner that they had any motive or any animosity against the appellant for his false involvement in this case. Their testimonies stand corroborated by the statement of the abductee herself so far as the abduction of the child is concerned.
' As regards the purpose for which the appellant abducted the child there is evidence of his having made alleged extra-judicial confession before Muhammad Arshad and Muhammad Yasin. They have deposed that he told them that about three months prior to the occurrence, he lifted a child aged seven years and subjected her to sexual intercourse and that for the same purpose he abducted Mst. Ishrat. Muhammad Yasin in his cross-examination categorically stated that confession about the purpose o]' abduction was made by the appellant before him and Muhammad Arshad. On the other hand, Muhammad Arshad deposed that many persons were present at the time when the confession was made by the appellant. Muhammad Ismail (P.W.6), the father of the abductee, has also stated that when he went to the factory, on his asking the appellant told him that he had lifted his daughter to commit sexual intercourse with her.
Muhammad Arshad and Muhammad Yasin have not supported Muhammad Ismail in this behalf.
They have not stated in so many words that after the arrival of Muhammad Ismail the appellant again made confession to the effect that he abducted the child for subjecting her to his lust.
9. After a careful consideration and close analysis of the testimonies of the eye-witnesses and that of Muhammad Ismail, we are inclined to find that although the prosecution has successfully brought home the guilt to the appellant so far as the abduction of Mst. Ishrat, a child aged six years, is concerned, but it has not been able to establish this fact beyond reasonable doubt that the child was abducted for subjecting her to the lust of the appellant or any other person. In this view of the matter, we hold that offence punishable under section 364-A, P.P.C. Has not been made out against the appellant. He has been proved to be guilty of the offence punishable under section 363, P.P.C.
10. In the light of these conclusions, we allow the appeal partly, alter the conviction of the appellant from section 364-A, P.P.C. To section 363, P.P.C. And sentence him to seven years', R.I. Benefit under section 382-B, Cr.P.C. Shall be extended to the appellant. The death sentence in these circumstances is not confirmed.