ATAULLAH SAJJAD J.-Shakeel Ahmad son of Ghulam Muhammad, caste Rajput, aged 40 years, resident of Chak No. 204/R. B. Tehsil and District Layallpur was tried by Sheikh Muhammad Asad Ullah, Additional Sessions Judge; Layallpur; under section 364-A of the Pakistan Penal Code, and has been sentenced to death. The allegation against him was that on 26th January 1969, at about 3-00 p.m., he kidnapped Mst. Robina Shaheen daughter of Munir Ahmad, aged four or five years, and Jehangir son of Bashir Ahmad, aged three or four years, both being first cousins, from Montgomery or Jhang Bazar, Layallpur, in order that they may be subjected to slavery or to lust of any person or may be so disposed of as to be put in danger of being subjected to slavery or to the lust of any person. The convict has come up in appeal and his case is also before us on reference for the confirmation of the death sentence. This judgment shall dispose of the appeal and the murder reference.
2. The facts of the case are very brief. Mst. Robina Shaheen and Jehangir referred to above, left their house, situated in Street No. 5 'C' Block Montgomery Bazar, for getting some maize grain parched from an oven on the day of the occurrence in the afternoon. As the children did not return home for considerable time, a message was sent to Bashir son of Nabi Bakhsh (P. W. 4), the father of Jehangir, who is a shop--keeper by profession. He came home and on getting the infor--mation, that the children had gone to the oven to have the maize grain parched, went in search of them.
On the way, he made enquiries from various people. He was near about the Clock Tower when he was told that a person had been caught in Rang Bazar with two children in his possession. He rushed to that direction and found a large number of persons collected at that place. The children, namely, Mst. Robina Shaheen and Jehangir were standing near the appellant and so were Ali Muhammad (P. W. 5), Bashir Ahmad son of Allah Rakha (P. W. 6) and one Sarwar, who has not been examined as a witness. These persons disclosed to him, that the accused was carrying Mst. Robina Shaheen in his lap and had held Jehangir by the hand and when questioned, had told them, that they have the children of his master, who lived in Sootar Mandi. The children were in a state of stupor and were not able to say anything. The witnesses further disclosed that when the accused was pressed to disclose the name of his master to whom the children belonged, he took to his heels by entering a small street, along with the children, but was followed. As the street happened to be blocked by a heap of wood, he was caught therefrom. After Bashir Ahmad was posted with these facts, the appellant confessed his guilt and asked for forgiveness but was taken to the Police Post Rail Bazar, along with the kidnapped children, where Bashir Ahmad P. W. 4 lodged report Exh. P.
A.
3. Sub-Inspector Feroze Muhammad Qureshi (P W.7) recorded the aforesaid report and sent it to Police Station Kotwali, Layallpur, for formal registration of the case. Formal first information report Exh. P. A./A was recorded by A.S.T. Muhammad Afzal (P. W. 1) at 4-15 p.m.
4. Ali Muhammad (P. W. 5) and Bashir Ahmad son of Allah Rakha (P. W. 6) had deposed that they were coming to Mod Masjid to offer their prayers, when they saw the accused with Mst. Robina Shaheen in his lap and Jehangir held by the hand outside the gate of the Masjid near the sacks of potatoes stocked there. They have supported the prosecution case that on their inquiry, the accused told them that the children belonged to his master living in Sootar Mandi. They suspected his bona fides and questioned him further, as a result whereof, the accused tried to run away carrying Mst. Robina Shaheen and holding Jehangir by his hand. He was followed and was captured near the stall of wood in a small street in Jhang Bazar.
6. When examined under section 342 of the Code of Criminal Procedure, the accused stated in the Court of Session as -under:- "On 26th January 1969, I was passing through Jhang Bazar on foot. Bashir Ahmad complainant P. W.
4 was coming from behind on a cycle carrying the said two children Robina Shaheen and Jehangir.
The cycle collided against me and as a result, the complainant and the two children fell down. The complainant began quarrelling with me and then we exchanged blows. Meanwhile, the companions of the complainant also reached the spot and I was severely beaten by them. T was then taken to the police station and was involved in this case falsely." He declined to produce defence.
7. Mr. M. Saleem, learned counsel for the appellant has not been able to point out any serious flaw in the evidence led at the trial. The witnesses are completely independent and the children were found with the appellant, who gave the witnesses the false information that the children were that of his master. When further cornered, he tried to run away along with the child--ren but his way was blocked by the heap of wood stocked in the street. The story told by the appellant does not carry conviction. His statement is an admission to the effect that the children were present when he was arrested. The learned counsel has, however, raised two legal contentions. In the first instance, he has stated that none of the intentions mentioned in section 364-A of the Pakistan Penal Code can be inferred from the evidence on record. According to him, even if the entire evidence is believed, it is a case which falls within the purview of section 363 of the Pakistan Penal Code. The next objection of the learned counsel for the appellant is that section 364-A of the Pakistan Penal Code was introduced in the Penal Code by Central Act XXXIV of 1958, but no consequential amend--ment was made in the Second Schedule of the Code of Criminal Procedure, hereinafter called the Code. The contention of the learned counsel was that the failure of the Legislature to add section 364-A in the list of offences mentioned in the Second Schedule of the Code, had made the new law ineffective and the whole trial was vitiated, as by this omission, the Legislature had failed to indicate the procedure under which the trial of this newly created offence was to be conducted. He In this connec--tion referred to subsection (1) of section 5 of the Code, which says that all offences under the Pakistan Penal Code shall be Investigate, inquired into, tried and otherwise dealt with according to the provisions contained therein. The learned counsel stated that in the absence of the necessary entry in the Second Schedule, it could not be said, as to whether, the offence was cognizable. He pointed out by reference to section 28 of the Code that the offences mentioned In the Penal Code may be tried by the High Court, or Court of Sessions or by any other Court mentioned in the 8th Column of the Second Schedule. Since it was not indicated by the insertion of section 364-A, P. P. C. In the Second Schedule as to which Court shall try the offence under this section, the matter, according to, the learned counsel, was left in the air and the section had become completely dormant and unenforceable.
8. Learned counsel elaborated his argument by submit--ting that where the Legislature had omitted to introduce the provisions which make the law effective, the Courts will not try to supply the omission particularly in the cases of penal laws, which have to be strictly interpreted.
9. So far as the first submission of the learned counsel--s concerned, there is nothing in the evidence to show that the-- appellant had seduced or kidnapped the two children with any of the intentions mentioned in section 364-A; P. P. C. There is no law which says that whenever a person is found in the company of children below the age often years, in circumstances, which show that he had seduced or abducted them, it shall be presumed that he had done so with one of the intentions mentioned in this section. Intention is to be proved by evidence and there is nothing, whatsoever, to show that the accused had removed the children with any of the intentions mentioned in section 364-A of the Pakistan Penal Code. The objection, therefore, prevails.
10. In order to sustain the second objection, Mr. M. Saleem, relied on the case of Manzoor Hussain v.
The State (PLD 1965 Dacca 348). Section 153-B was introduced in the Penal Code with a view to punish persons, who induce students to political, activities. There was no consequential amendment in the Second Schedule of the Code. The offence was punishable with two years' rigorous imprisonment. A Division Bench of the Dacca High Court came to the conclusion that since it was not indicated whether the offence was cognizable or non: cognizable, bailable or non- bailable and was to be tried by which Court, the High Court in the exercise of its powers under section 561-A of the Code, could note rise procedure for its hearing and supply the omission of the Legislature. Their Lordships also observed that the High Court or the Sessions Courts could hear a case only after commitment. The class of Magistrate who was to try a case under section 153-B, of the Pakistan Penal Code, had not been mentioned in the Second Schedule and it was not, therefore, possible to fix the forum.
11. There is, however, a formidable distinction between the precedent case and the case before us.
In the case before us, the offence committed is punishable with death and the appellant has been actually awarded death sentence. Sub--section (2) of section 31 of the Code says that a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law including the sentence of death subject to confirmation by the High Court. Again under section 193 of the Code.
No Court of Sessions can take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. The accused in this case stood enquiry before a competent Magistrate under Chapter XVIII of the Code and was committed to the Court of Sessions for trial. The question, whether the offence is bailable or non-bailable is answered by the provisions of section 497 of the Code, which says that if there are reasonable grounds to believe that a person is guilty, of an offence punishable with death or transportation for life, he is not to be granted bail subject, of course, to the proviso to subsection (1) of the above section.
12. Mr. M. Saleem, also argued that in the absence of any indication to that effect in the Second Schedule, we could not hold, whether the offence was cognizable or not. He asserted that no first information report could be drawn up as a Station House Officer was authorised to record on F. I. R.
Under section 154 of the Code only in cognizable cases and since the offence had not been declared to be cognizable, the registration of the case, the investigation and the trial, were all vitiated with an incurable illegality. The learned Advocate-General, Mr. M. B. Zaman submitted that section 364-A was a sort of addition or proviso to the sections dealing with the offence of kidnapping and abduction and there should be no difficulty in holding that the offence is cognizable notwithstanding the omission of the Legislature to specifically indicate the same. The argument is not without its force. The offence is punishable with death and we cannot impute the absurd intention to the Legislature that while it declared that the offences falling in the same category and liable to be punished with lesser severity, were cognizable, it would have declared an offence punishable with death as non-cognizable. In view of the policy of the Legislature in exacting the extreme penalty of death from a person who is proved to have committed an offence under this section and on the analogy of sections 121 and 302, P. P. C., it is open to us to hold that the offence under this section is cognizable.
13. We may also say that a first information report is not a condition precedent for starting investigation or for- arraignment of a person at trial. In this connection reference may be made to Emperor v. Khawaja Nazir Ahmad (AIR 1945PC18). Even if we concede for the sake of argument, that the Station House Officer could a not record the first information report and was not authorised to investigate the matter, it will amount to a preliminary irregularity and would not effect the proceedings taken in Courts which are proper and with jurisdiction. See Parbhu v. Emperor (AIR 1944 PC 73).
14. The doctrine of strict interpretation of penal laws has undergone some change by process of time and is now restricted to the limitation that punishment cannot be extended to cases which do not clearly fall within the ambit of law. It is equally the duty of the Courts, not to exonerate parties who plainly come within the scope of law, merely on account of a highly technical and forced construction or unintentional procedural omission. We find the following observation in Maxwell on Interpretation of Statutes (11 Edition) on page 221:- "Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's un--skillfulness or ignorance of law except in case of necessity or the absolute intractability of the language used.."
15. The judicial interpreter is to interpret the language of a statute in plain and rational manner with a view to promote its object. There is a chain of authorities to support the view B that whenever there is an accidental omission in a statute and the intention of the Legislature can be clearly culled from the words of the statute, the omission can be supplied by Court to serve the purpose of law. In King v. Ettridge (L R (1909) 2 K B D 24). The question before the Court of Appeal was whether ft could substitute another sentence in place of one awarded by the trial Court, where the accused had confessed his guilt. The relevant section of Criminal Appeal Act, 1907, authorised the Court of Appeal to "Pass such other sentence warranted in law by the verdict . . . . . In substitution therefore as they think ought to have been passed." It was argued that in case a Court of Appeal decided to quash the sentence passed by the trial Court, it had no power to substitute another sentence for the one awarded by the trial Court, in a case where conviction was based on confession and not on the verdict of the jury. The contention was repelled. It was observed by Darling, J. At page 28 of the report:- "We are of opinion that we may in reading this statute reject words, transpose them, or even imply words, if this be necessary to give effect to the intention and meaning of the Legislature; and this is to be ascertained from a careful con--sideration of the entire statute."
In R. v. Strachan ((1872) L R 7 Q B 463) the Court remedied an accidental omission in the Schedule of the Stamp Act, 1870, in order to bring it in consonance with the intention of the Legislature.th Similarly, in Wainewright ((1843) 1 Phill 248) the Courts supplied an omission in section 33, Fine and Recoveries Act, 1833, by reading in the relevant section the words "convict of felony" to give effect to the manifest inten--tion of the Legislature.
16. The Supreme Court of Pakistan in Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335) by a majority judgment held that the procedural omission of the draftsman which may have been due to inadvertence or ignorance of law may bell supplied to make the intention of the Legislature effective. The precedent case related to the recovery of Estate Duty. The Estate Duty Act was amended in 1953 but due to the slip of the draftsman consequential amendments were not made in section 57 of that Act. The argument raised was that due to the omission of the draftsman to bring section 57 in accord with other amendments, the law stood devoid of any provision for amendment or modification of the returns submitted and the Supreme Court held that it could read certain words into sec--tion 57 to effectuate the manifest intention of the Legislature. Kaikaus, J. Observed as under:- "The contention before us too was that the statute was nullified by the omission to make mere consequential amendments. It was never even contended that the intention of the Legislature was not clear for there was no room for such a contention. As long as the slip of the draftsman relates not to the subject-matter but to the form in which the law is expressed, there is no objection to its being disregarded."
The same principle was enunciated in Muhammad Ismail v. The State (PLD 1969 SC 24). We quote with great respect the following observations of their Lordships of the Supreme Court:-- "Even though, as a general rule, a Court of law is not authorised to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in D certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker to supply the omission in order to avoid doing a manifest injustice."
17. The case here is, that so far as substantive law is concerned, the Legislature has made their intention very clear and it is on account of unintentional omission in the procedural law that it is sought to be argued that the substantive law has become ineffective. This failure on the part of the Legislature cannot be permitted to make the law hang in the air and exonerate the guilty persons.
Notwithstanding the failure of the insertion of section 364-A in the Second Schedule of the Code, a complete procedure for hearing a case under sec--tion 364-A is discoverable. We are, therefore, of the view that the trial was in order and no prejudice whatsoever was caused to the appellant.
18. We have held above that none of the intentions mentioned in section 364-A, P.P.C. Has been legally brought home to the appellant in this case. The evidence, however, shows that the appellant had seduced the two children so as to leave their lawful guardians and that when he was questioned, tried to run away with these minor children. An offence under section 363 of the Pakistan Penal Code, has, therefore, clearly been brought home to him. We alter his conviction to one under section 363, P. P. C. And sentence him to seven years' rigorous imprisonment. The sentence of death is not confirmed.