' AFRASIAB KHAN, J.--The appellant Mst. Bibi Raisa wife of Noshare, has moved this jail Appeal No,24/86 challenging her conviction under section 364-A. P.P.C. Whereby she was sentenced to death by the learned Additional Sessions Judge, Rawalpindi vide his judgment dated 25-1-1986.
The Murder Reference No,55 of 1986 is also pending adjudication before us. We propose to dispose of these two matters together by our consolidated judgment.
2. Briefly, the facts of the prosecution story are that a case under section 364-A P.P.C. Was registered against the appellant on the statement of Altaf Hussain Constable No,3240 (PW4) with Police Station Cantt: Rawalpindi. The complainant stated that he was serving as a Naib-Court in the Lahore High Court, Rawalpindi Bench, Rawalpindi. On 4-4-1985 at about 10 a.m., he came at the bus-stop of Koh-e-Noor Mills in order to take tea. He was sitting in Sain Hotel and was taking tea there when he spotted the appellant while carrying a gunny bag on her shoulders. The complainant noted that there was something alive moving inside the gunny bag. Therefore, the complainant had a suspicion and accordingly he searched the gunny bag in presence of Abbas Khan and Zakria Khan and from within the gunny bag a minor girl, namely, Nadia aged about four years was recovered. It was alleged that the appellant had abducted the minor.
3. Mushtaq Ahmed SI PW 5 investigated the case. He stated that on 4-4-1985, he was posted in the Police Post Nasirabad as ASI. At about 10.15 a.m. He was present in the said Police Post when the complainant Altaf Hussain FC No,3240 (PW4) produced before him the appellant alongwith a gunny bag and the minor girl recovered from her. The witness recorded the complaint Ex.PA on the statement of the complainant and the same was forwarded to the Police Station Cantt: Rawalpindi for the registration of a case against the appellant. The gunny bag was taken into possession vide memo Ex.PB. The witness recordded the statements of the prosecution witnesses. The spot was inspected by the witness and he also prepared the site plan vide Ex.P.C.
4. Altaf Hussain FC (PW 4) reported the matter to the police and also produced the minor girl, namely, Nadia, alongwith the gunny bag before the police. He stated that the minor was being kidnapped by the appellant on 4-4-1985 while placing her in a gunny bag which was being carried by her on her shoulders. On search, the complainant P.W.4 found the minor Nadia lying inside the gunny bag. The witness apprehended the appellant with the help of Abbas Khan and Zakria Khan and they produced the appellant alongwith the minor before the police. Zakria Khan PW2 also supported the case of the prosecution. The appellant while making statement under section 342 Cr.P.C. Denied the allegations levelled against her. However, she made a statement while answering question No,4 that on 4-4-1985 at about 10 a.m. She was playing with the children at the bus-stop of Koh-e-Noor Mills, Rawalpindi, and that the people raised an alarm that she was abducting the children. She further stated that the evidence had been deposed against her by the prosecution witnesses on account of the pressure of police.
5. The principal argument raised by the learned counsel is that the provisions contained in section 364-A P.P.C. Are not at all attracted to the facts and circumstances of the case. Learned counsel stated that the prosecution has failed to prove the necessary ingredients of the offence showing that the appellant had abducted the minor with an intention that the abducted minor may be murdered or subjected to grievous hurt or slavery or to the lust of any person or may be so disposed of as being put in danger of being murdered or subjected to grievous hurt or slavery or to the lust of any person. Learned counsel submits that the prosecution evidence does not prove the necessary ingredients of section 364-A P.P. C. And as such the sentence so awarded to the appellant being illegal is liable to be set aside. Learned counsel has also argued that at best the case of the appellant falls under the provisions of section 363 P.P.C. Wherein the maximum sentence is 10 years. Lastly, the learned counsel urged that the possibility cannot be ruled out that the appellant might be playing with the minor out of love and affection and in that process she might have been apprehended by the prosecution witnesses under the mistaken impression that she was an abductor. However, the learned counsel frankly admitted that the minor was recovered from the possession of the appellant. The learned State counsel urged that it was proved beyond doubt that the minor was being carried away by the appellant while concealing her in a gunny bag who was apprehended on the spot red-handed by the prosecution witnesses.
6. We have heard the learned counsel for the parties at length and have perused the record. At the very outset, it may be observed that the learned counsel conceded that the minor was recovered from the possession of the appellant on the day of occurrence. In our considered view, the prosecution witnesses are the most natural and trustworthy witnesses inasmuch as they have no axe of their own to grind in the case by deposing falsely against the appellant. It is not the case of the learned counsel that the appellant has falsely been implicated in the case on account of malice or enmity. Altaf Hussain FC complainant P.W.4 is an employee of the Lahore High Court, Rawalpindi Bench and was present at the spot when he found the appellant while carrying a gunny bag wherein something alive was moving. The complainant intercepted and recovered the minor Nadia from the gunny bag in presence of Zakria Khan PW.2. The appellant was caught red-handed and was produced before the police immediately thereafter. We are fully convinced that it was the appellant who abducted the minor and was taking her away for the purposes of slavery or subjecting the minor to the lust of any person within the meaning of section 364-A P.P.C. In our view, section 363 P.P.C. Is not attracted to the facts and circumstances of the case; rather the provisions of section 364-A P.P.C. Are on all fours applicable to the case in hand. The appellant was taking away the minor surely with a view to subjecting the minor to slavery or to the lust of any person. The contention of the learned counsel is that the appellant was not of a sound mind.
However, we do not find even an iota of evidence available on record to show that the appellant was suffering from some mental disease.. The appellant made a statement in Court denying all the allegations against her like a sane person. From the statement of the appellant it is clear that she was present at the spot and that she was playing with the children at the busstop of Koh-e-Noor Mills when she was apprehended on account of suspicion. The appellant who is fifty years of age could not be expected to play with children in the locality of strangers. The offence against the appellant stands proved beyond all reasonable doubt by the convincing and cogent evidence of the progecution witnesses. Altaf Hussain PW.4 and Zakria Khan P.W 2 are wholly independent and disinterested witnesses and are not shown to have any animosity or against the appellant.
Furthermore she was not at all known to the prosecution witnesses previously. The prosecution witnesses were subjected to cross-examination during the trial but their evidence could not be shattered. The appellant has committed a gruesome offence and in the circumstances of the case we do not find any justification to interfere in the matter and consequently uphold her conviction and sentence. The appeal is accordingly dismissed. The death sentence awarded to the appellant is hereby confirmed. The murder reference is answered in the positive.
Death .