' Appellants Porho, Shero, Mitho and Muhammad Hassan were tried alongwith accused Mooso (since acquitted) by Mr. Muhammad Sadique Leghari, ' Additional Sessions Judge Thatta, for the offence under section 365, P.P.C. Read with section 511, P.P.C., who vide judgment dated 22-4-1989, found the appellants guilty for the said offence and sentenced each of them to suffer R.I. For 12 months and to pay a fine of Rs,1,000 or in default to suffer R.I. For two months. Co-accused Mooso was, however, extended benefit of doubt and was acquitted. By this appeal filed under section 410, Cr.P.C. The appellants have challenged their conviction and sentence.
2. Mst. Azmat alias Muni (P.W.5) is the wife of appellant Shero. The relations between the spouses had become strained and consequently she started residing in the house of her brother Ghulam Nabi. She also filed a suit for dissolution of her marriage against her husband in the Court of Family Judge, Badin. In the month of May, 1987, Ghulam Nabi had brought his sister Mst. Azmat alias Muni to celebrate Eid in the house of his uncle Nim, the complainant in this case. On 1-6-1987, three days after Eid-ul-Fitr, at about 11 a.m. Complainant Nim was ploughing his lands near his house.
Mamoon Lujo (P.W.2) and others were also working on their lands adjacent to the lands of complainant Nim, Mst. Azmat alias Muni (P.W. 5), and Mst. Basran (P.W. 3), daughter of complainant Nim were collecting straws outside their house, when the appellants came there in a Datsun Pick- up driven by accused Mooso (since acquitted), in an attempt to abduct both of them. Appellant Porho who was armed with a rifle and appellant Mitho who was carrying a hatchet with him got down from the Pick-up and they proceeded towards Mst. Azmat alias Muni and Mst. Basran in an attempt to forcibly carry them in the pick-up when they raised cries which attracted Nim, Mamoon Lujo and others. On seeing so many persons and due to the resistance made by Mst. Azmat alias Muni and Mst. Basran, the appellants bolted away in the same pick-up. On the same day at 4-30 p.m. Complainant Nim went to Jhok Shareef P.P. And lodged F.I.R. Which was recorded in station diary. A copy of this report was sent to S.H.O. Bano P.S., where it was incorporated in 154, Cr.P.C.
Hook. Rab Nawaz A.S.I. Took up the investigation. He went to place of wardat and inspected it in presence of mashirs Mooso and Achar. On 2-6-1987 the police officer examined Noor Muhammad, Haji, Mamoon, Mst. Muni and Mst. Basran. On 5-6-1987 the vehicle used in this crime was secured.
On 6-6-1987 the appellants were arrested alongwith co-accused Mooso. After completing the investigation the appellants were sent up.
3. The appellants pleaded not guilty and claimed a trial. At the trial the prosecution examined Nim (P.W.1), Mamoon (P.W.2), Mst. Basran (P.W.3), Wasso (P.W.4), Mst. Azmat alias Muni (P.W.5), Muhammad Malook (P.W. 6), Muhammad Juman (P.W.7), and Rab Nawaz A.S.I. (P.W.8).
4. The appellants met the charge with a denial professing innocence. They have alleged enmity with complainant Nim over matrimonial affairs. The appellants have examined themselves on oath, but they examined no other witness in their defence.
5.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellants guilty for the offence under section 365/511, P.P.C., and convicted them accordingly.
It is in these circumtances that the present appeal has been filed.
6. I have heard Mr. Abdul Hameed Samo, learned counsel for the appellants and Mr. Laeeque Ahmed Jaffcri, learned counsel for the State. The latter has not supported the impugned judgment.
7. Complainant Nim (P.W.1) is uncle of Mst. Azmat alias Muni (P.W.5) who was married to appellant Sheru. The relations between the parties were not cordial and Mst. Azmat alias Muni was residing with her brother Ghullam Nabi (who too was murdered after this incident and a copy of judgment in that case is placed on record on behalf of the appellants before this Court). In the month of May, 1987 both Ghulam Nabi and Mst. Azmat alias Muni had come to the house of complainant Nim to celebrate Eid. The present incident took place on 1-6-1987, three days after Eid when at about 11 a.m. The appellants made an attempt to forcibly abduct both Mst. Azmat alias Muni (P.W.5), and Mst. Basran (P.W.3) daughter of complainant Nim who were collecting straws near the house of complainant Nim. The timely arrival of complainant Nim (P.W.1), Mamoon Lujo (P.W.2) and others and the strong resistance offered by Mst. Azmat alias Muni (P.W.5) and Mst. Basran (P.W.3) foiled this attempt of the appellants who escaped in the same Datsun pick-up in which they had come.
The version of Nim (P.W.1), Mst. Basran (P.W.3), and Mst. Azmat alias Muni (P.W.5) about the incident is consistent and the learned counsel for the appellants was not able to pick holes in their testimony. Mamoon Lujo (P.W.2), who is completely an independent person has fully supported the case of the prosecution. No enmity is alleged against this witness who has no reason to depose falsely against the appellants.
8. Mr. Abdul Hameed Samo, learned counsel for the appellants has criticised the evidence of Nim (P.W.1), Mst. Basran (P.W.3), and Mst. Azmat alias Muni (P.W.5) mainly on the ground that they being inimical to the appellants have turned a simple family dispute into a criminal case. The answer to this contention is furnished by the learned Additional Sessions Judge in the following words:- "If, for the purpose of safe administration of justice through independent witness is looked for then evidence of Mamoon Lujo is there. This man has no dispute or enmity whatsoever with any of the accused. Nor his such interest is proved in complainant and lady prosecution witnesses, due to which he would go to the extent of implicating the accused falsely. He was working in the field near the place of incident and was in a position to hear the cries and reach at the place of incident.
Thus, he not only is independent witness but natural too."
9. I fully endorse this view taken by the learned Additional Sessions Judge who had the additional advantage of seeing the demeanour of the witnesses.
10. It is also contended on behalf of the appellants that the evidence of witnesses even if accepted on face value does not constitute an offence under section 365, P.P.C., specially when one of the accused is admittedly husband of Mst. Azmat alias Muni (P.W.5). The case of Nura v. The State, reported in PLD 1960 Lah. 53, certainly appears to lend some colour to this submission, wherein it was observed:- "One of the essential elements of an offence under section 365 is that the kidnapping or abduction of any person must be with intent to cause that person to be secretly and wrongfully confined. The learned Additional Sessions Judge has given no finding that the accused had the intention of secretly confining Mst. Sattan. On the state of evidence on the record, it is difficult to give such a finding with certainty. I think the finding of the learned Additional Sessions Judge is correct in so far that the intention of the accused was to forcibly take Mst. Sattan to the house of her husband and to compel her to live there against her will, but this in my opinion does not constitute an offence under section 365, P.P.C., Abduction by itself is not punishable under the Penal Code. It is made punishale only if it is done with one or other of the intents specified in sections 364, 365, 366, 367 and 369 of the Penal Code."
11. The point in issue was also examined in Ghungru and others v. Emperor, reported in A.I.R. 1936 Allahbad 360, wherein it was held:-- "The other argument which has been addressed to me suggests that the husband had a right to take his wife away. Under our law a woman is not a slave and there is no justification for the suggestion that a husband is entitled to use force to compel his wife to leave her perents' house and join him."
12. There are distinguishable features of this case, firstly it was a case of attempt only. Mst. Azmat alias Muni (P.W.5) was being removed at the instance of appellant Sheru who is her husband. The obvious conclusion is that she was to he secretly concealed so that her brother Ghulam Nabi and uncle Nim may not be able to locate her, and secondly an attempt was also made to abduct Mst.
Basran (P.W.3), aged about 17 years, daughter of complainant Nim (P.W.1), who was in no way connected with any of the appellants.
13. For all the above reasons, I see no substance in this appeal and maintain the impugned judgment. The question of sentence has engaged many anxious C consideration. The appellants have already spent a period of about two months in prison. It was only a case of attempt to abduct within the meanings of section 365/511, P.P.C., and one of the appellants is the husband of Mst.
Azmat alias Muni (P.W.5). In these circumstances, therefore, I would reduce the sentence of imprisonment to that already undergone. The sentence of fine is, however, maintained. The appellants arc allowed one month's time to deposit fine in the office of Additional Sessions Judge Thatta. They will suffer R.I. For one month in default thereof. The trial Court shall take necessary steps for remanding the appellants to custody, if fine is not paid within the above period.
14. With this modification in sentence, the appeal is otherwise dismissed.
Sentence reduced.