KHIZAR HAYAT, J.--- Muhammad Sharif (65) and his wife Mst. Bashiran (55), appellants herein, have been convicted by Sessions Judge, Sahiwal, under section 364-A, P.P.C. Learned trial Court has sentenced Muhammad Sharif to death while Mst. Bashiran to imprisonment for life, hence this appeal. Reference for confirmation of death sentence of Muhammad Sharif is also before us. We propose to dispose of both, appeal as well as reference; by this single judgment.
2. On 30th July, 1975, at 9 a.m. Habib complainant (P.W.1) alongwith his wife went out to his fields for agricultural pursuit leaving his daughters Mst. Mumtaz and Mst. Zadi at his house. When they returned home at 4 p.m. Mst. Zadi told them that Muhammad Sharif and Mst. Bashiran, appellants alongwith Sher Nawab and Mst. Arshan had taken Mst. Mumtaz with them. As Mst. Mumtaz did not return home till evening, the complainant started searching for her. Chakar, Sohna, Wazir and Ahmad Yar P.Ws., his villagers, told him that they had seen the aforesaid accused persons taking Mst. Mumtaz with them, who, on their inquiry, had told them that they were going to Arifwala for purchasing clothes for her. On 1-8-1975, Habib reported the matter at Police Station Arifwala, where F.I.R. Exh.PA./1 was recorded by Head Constable Muhammad Anwar. The case was investigated by the police but no clue of the abductee or the accused was found and the case appears to have been filed as untraced. About eight years later it so happened that on 9th March, 1983, Muhammad Khan A.S.I. (P.W.4) of - Police Station City Sargodha was on patrol duty in Chak No.35/Shumali, where he received an information that one person with two girls and a woman were going on the road under suspicious circumstances, so he rounded up both the appellants and recovered Mst.
Mumtaz from their possession with the help of Ata Muhammad (P.W.5) and S.I. Mian Khan "(P.W.10).
Mst: Mumtaz told them that she was abducted during her childhood by the appellants.
Muhammad Sharif and Mst. Bashiran were arrested under section 55/109, Cr.P.C. .He then contacted Arifwala police on telephone who told him that the appellants were proclaimed offenders in case FLR. No. 298 of 1975 under section 363, P.P.C., Police Station Arifwala Ghulam Mohy-ud-Din A.S.I. (P.W.12), a trainee, attached with Police Station Arifwala, went to Sargodha, arrested the appellants in this case and under orders of A.D.C.(G), Sargodha got them transferred to Sahiwal. Ghulam Farid, Head Constable (P.W.9) and Akbar A.I S.H.O. P.S. Arifwala (P.W.11) after completing the investigation challaned the appellants to Court.
3. At the trial the prosecution examined 12 witnesses in support of its case. Habib complainant (P.W.1) proved F.I.R. (Exh.P.A./1), Chakar (P.W.2) and Sohna (P.W.3) stated that they saw the appellants taking away Mst. Mumtaz, the minor girl, with them in the morning of the day of occurrence. Ata Muhammad (P.W.5), Muhammad Khan S.I. (P.W.4) and Mian Khan Inspector C.I.A.
Staff (P.W.10) stated that Mst. Mumtaz, the abductee, was recovered from the possession of the appellants from Chak No.35/Shumali, District Sargodha. Ashiq Muhammad (P.W.8), Secretary Union Council No.96, District Sahiwal, proved birth entry (Exh.P.B.) of the abductee showing her date of birth as 25-5-1968. The most important witness in this case is Mst. Mumtaz (P.W.7), the abductee.
She stated that on the day of occurrence her father and mother had gone out to their fields. She alongwith her elder sister Mst. Zadi was playing in her house when both the appellants who used to reside in their Dhari came there and asked her to accompany them, as they would purchase clothes for her. She, therefore, accompanied them. At that time she was 5/6 years old. She further stated that they took her to various places unknown to her. At last they established their Dera at Chak No.35/Shurnali, District Sargodha, and lived there for about five years. She was kept there under guard. Sometimes, the appellants told her that they would either sell her out or would marry her. With their son and sometimes they asked her to `do prostitution' but she did not agree and told the villagers that she was not the daughter of the appellant. Having come to know of it, they left that village during night and were taking her towards Sargodha when the police apprehended them. Sargodha Police sent, her to Arifwala where she met her parents and identified them.
4. The appellants when examined under section 342, Cr.P.C. Denied the allegations and professed innocence. Muhammad Sharif (appellant) stated that Mst. Mumtaz was abducted by some body else but the police having let him off involved him and his wife in the case. Further stated that Habib P.W. Had demanded Rs.10,000 from him and as he failed to pay it, therefore, he implicated him in this case. He, however, has admitted that Mst. Mumtaz remained with him for four months in Chak No.35/Shumali. They have not produced any evidence in defence.
5. Learned trial Court accepted the prosecution case and observing that the appellants had abducted Mst. Mumtaz so that she would be subjected to the lust of their son or any other person and persuaded her to do prostitution which she resisted, held them guilty for offence under section 364-A, P.P.C. And sentenced them as indicated above.
6. We have heard learned counsel for the appellants as well as learned A.A.G. And also perused the record.
7. The F.I.R. (Exh.P.A./1) was registered at Police Station Arifwala District Sahiwal two days after the occurrence, naming the appellants as abductors of Mst. Mumtaz about cight years before her recovery. Non--appearance of Mst. Zadi, in whose presence her sister Mst. Mumtaz (abductee) was taken away by the appellants does not affect the prosecution case adversely because of the evidence of Chakar and Sohna P.Ws.` who have' no ill-will whatsoever against the appellants stated to have seen the appellants taking Mst. Mumtaz with them to Arifwala on the day of occurrence. Recovery of the abductee from the appellants also stands proved beyond any shadow of doubt by the testimony of Muhammad Khan, Mian Khan and Ata Muhammad P.Ws., who are absolutely disinterested witnesses having no axe to grind by falsely implicating the appellants. The factum of recovery of the abductee from their possession is rather admitted by Muhammad Sharif, appellant. We have, therefore, no doubt in our mind that Mst. Mumtaz (P.W.7), when she was 5/6 years old, was kidnapped by the appellants from the house of her parents in district Sahiwal, and took her to a far-off District Sargodha and kept her concealed for 8 long years still they were apprehended and the girl was recovered from them on 9-3-1983.
8. Learned counsel for the appellants has argued that it is a simple case' of kidnapping punishable under section 363, P.P.C. Because it has not been established that Mst. Mumtaz had been abducted/kidnapped for any of the purposes mentioned in section 364-A, P.P.C. Learned A.A.-G.
Appearing for the State replied that, the abductee has averred that the appellant had expressed their intention to marry her with their son and also asked her to do prostitution and that this evidence satisfies the ingredients of section 364-A, P.P.C.
9. We have carefully considered the contentions of the learned counsel in the light of the record and the relevant law. Intention of an accused is always inferred from the attending circumstances in a particular case. Mst. Mumtaz did not say that during the period of eight long years of her stay with the appellant, forced labour was extracted from her or that she was ever offered for sale or for lust to any person, although she had attained marriageable age before her recovery from the appellants. She has stated that the appellants expressed their desire to marry her with their son. It is not, therefore, believable that they would ask that girl to do prostitution whom they wanted to take as their son's wife. She seems to have made- some exaggeration. The facts and circumstances however, clearly indicate that Mst. Mumtaz being minor yeas kidnapped for marrying her with one of their sons obviously against her wishes and that is why the abductee for getting help of the villagers to secure her release from the appellants, told the villagers that she was not their real daughter and the appellants in order to avoid interference of the villagers in accomplishing their design left that place at night time. We, therefore, hold that the offence under section 364-A, P.P.C. Is proved against the appellants but since their purpose of kidnapping Mst.
Mumtaz is not of heinous nature therefore, while maintaining the conviction we are inclined to reduce the sentence, also for the reason that both the appellants are in the evening of their age.
Consequently, their sentences are hereby reduced to 10 years' R.I. Each. Death sentence awarded to Muhammad Sharif appellant is NOT confirmed. The appeal is decided in the terms indicated above. Reference is rejected.