The appellant Mahboob Zaman was convicted under section 364-A, P. P. C., by Ch. Ghulam Hussain, Sessions Judge, Sargodha by order dated 14th of October 1970, and was sentenced to transportation for life.
2. The occurrence took place on 8th of October 1968, at 11-30 p.m. In house No. 19, belonging to Abdul Aziz (P. W. 2) on Fatima Jinnah Road in the City of Sargodha. Police Station City Sargodha where the F. I. R. Exh. P. A. Was lodged by Abdul Aziz (P. W. 2) at 12 in the night, is at a distance of two furlongs from the place of occurrence.
3. Mst. Sughran (P. W. 3) is the daughter of Abdul Aziz. She had come alongwith her children to stay with her father. One of her children namely Mst. Rashida aged about six years, was sleeping with Abdul Aziz outside the house on the footpath on the same cot. Abdul Aziz felt thirsty at about 11-30 p .m. And went into the house to drink water. When he came back he found the child missing. He raised a hue and cry which attracted the notice of Tawakkal Khan (P. W. 4) who is the Chaukidar of the locality and two others, namely, Muhammad Sharif and Muhammad Feroze. They were not produced at the trial. Tawakkal Khan persued the appellant to a distance of one furlong and took hold of the child from him, whom the appellant was carrying in his arms wrapped in a chaddar. The appellant was then apprehended and taken to the police station where the first information report was lodged by Abdul Aziz (P. W. 2). It was recorded by A. S. I. Ghulam Muhammad (P. W. 6).
4. At the trial, three persons appeared as eye-witnesses, namely, Abdul Aziz (P. W. 2), Mst. Sughran, the mother of the abducted girl (P. W. 3) and Tawakkal Khan (P. W. 4).
5. The appellant took up the plea of insanity before the Enquiry Magistrate and at the trial. In support of this plea he produced seven defence witnesses. The statement of Dr. Rabnawaz who was numbered as D. W. 8, was transferred under section 509 of the Cr. P. C. To the record of the Sessions Court. Alam Din and Muhammad Anwar D. Ws. 1 and 2 respectively were the Wardens of the Sargodha Jail when the appellant was kept there as an under trial prisoner. Both of them stated that the appellant behaved like an insane person, that he passed leepless nights and used to go about during the night. They also said that on occasions he acted violently and shook the fences of the Jail. Ahmad A.I (D. W. 3), was the dispenser of the District Jail, Sargodha, at the relevant time. He produced the appellant before Dr. Rabnawaz, the Medical Superintendent of the Jail and according to this witness the doctor kept the prisoner under observation for ten days and wrote down his opinion a copy of which was placed on the Sessions record as Exh. D. W. 13/A. Abdur Rehman (D. W.
4) was a fellow prisoner with the appellant at the relevant time. He also deposed to the abnormal behaviour of the appellant in jail which gave an impression to the witness that he was an insane person. He further added that the appellant remained naked and struck his head against the iron bars. According to this witness he remained in this state of insanity for about four or five months.
Muhammad Sharif (D. W-. 5) is a Khateeb of the Jamia Masjid of Karoar Lali an District Muzaffargarh. He stated that the maternal relations of the appellant lived in that village and in September or October 1968, the appellant was the Khateeb of the Jamia Mosque of the village but then he started behaving like an insane person and left the village for some unknown place. After the departure of the ap--pellant, the witness was appointed the Khateeb of the mosque. This witness further stated that the appellant had wife and children who had been taken away by his parents-in-law against his wishes. Raja Aslam Hayat (D. W. 6) was the Deputy Superintendent of the District Jail, Sargodha, at the relevant time. He stated that the appellant was admitted into the District Jail as an under trial prisoner on 14th of October 1968, and his behaviour from the date of his admission till 29th October 1968, was found to be abnormal and because of that the witness got an impression that the appellant was mentally deranged. He, therefore, referred him to Dr. Rabnawaz, the then Medical Superintendent of the District Headquarters Hospital during his visit to jail. The doctor examined the appellant on 29th of October 1968, and gave his opinion as D. W. 13/A.
Subsequent to this opinion the appel--lant was segregated from other prisoners and was put in a separate cell. Raja Aslam Hayat admitted that in spite of the opinion of Dr. Rabnawaz, the appellant was not sent to any mental hospital, Munawar Shah (D. W. 7) stated that the appellant actually belonged to village Munara in the District of Jhelum and his father Pir Zahoor Shah was a pious man having a number of disciples in the village. He had seen the appellant on 6th or 7th of October 1968, in the city of Sargodha and asked him to accompany him to a hotel so that he could entertain him, but the appellant, who was wearing dirty and torn clothes, pushed him away and manifested signs of insanity.
6. Dr. Rabnawaz was examined by the committing Magistrate and he placed on record his opinion expressed in Exh. D. W. 13/A. He had stated therein that the behaviour of the prisoner was abnormal and he was reported to be violent and unruly. It does not appear from this opinion that the doctor kept the prisoner under observation on a number of days. It only shows that he examined him on 29th of October 1968. The statement of Ahmad A.I dispenser (D, W. 3) to the effect that Doctor Rabnawaz kept the appellant under observation for ten days does not appear to be correct. Doctor Rabnawaz had stated before the committing Magistrate that he was not sure about the insanity of the appellant and he suspected him to be an insane person because his conduct was not natural and it was reported to him that tie was violent and did not obey orders. His advice that the appellant be sent to some mental hospital was not acted upon. It, however, appears from the record that the appellant was examined again on 2nd of July 1969, by Dr. M. S. Faridi who found him a normal person with a good memory and gave an opinion that he was fit to understand the Court proceedings.
7. The prosecution witnesses, when cross-examined, admitted that the appellant at the time of the commission of the offence was bare-headed, bare-footed and was wearing ditty clothes. He looked like an insane person but did not talk like one. The Investigating Officer said that when he first examined him he talked coherently but during the second interrogation he started talking incoherently and gave an impression that he was suffering from insanity.
8. The appellant in his statement at the trial said that he had been thrice visited by insanity and that he was not aware of the nature of the act for which he was arraigned at the trial. He stated that he had been educated in Jamia Abbasia, Bahawalpur, and had passed his examination in Alain and Fazil, besides undergoing the course of the Allama classes which he left unfinished. He also professed to be the Hafiz of the Holy Qur'an. He further stated that he developed insanity in 1945 and passed sleepless nights. He also stated that he had worked as `Imam Masjid' in some Army Work--shops. He further stated that he was a married man and had two daughters, who had been taken away by his parents-in-law against his will and that is why he developed insanity for the third time. The learned trial Judge repelled the plea of insanity and convicted and sentenced the appellant as stated above.
9. Mr. Aftab Farrukh, the learned counsel for the appellant, mainly concentrated his argument on the plea of insanity. He said that it appears from the statements of the prosecution witnesses as also the defence evidence that the appellant was an insane person and did not understand the nature of the act that he had committed. There is no denying that the appellant did suffer from some abnormality but it has not been proved that he was an insane person within the contemplation of section 84 of the Pakistan Penal Code, and his cognitive faculties were so paralysed at the time of the commission of the offence that he did not understand its criminal nature. There is no documentary evidence of any previous history of insanity. Dr. Rabnawaz had examined the appellant only on 29th of October 1968, His recommendation that the appellant be sent to a mental hospital was not acted upon and Dr. M. S. Faridi who subsequently examined the appellant found him in a normal state of mind. I, therefore, find no substance in the plea of insanity raised by the appellant although I grant that his way of living and behaviour was that of an abnormal person and he had left his home perhaps because of the domestic troubles.
10. The next question raised by the learned counsel was that the evidence did not bring home to the appellant any one of the intentions mentioned in section 364-A, P. P. C. It was urged that the lifting of the child was certainly the act of a person, suffering from some abnormality of mind. The learned counsel relied on Shakeel Ahmad v. State (PLD 1972 Lah. 374) wherein it was held that in the absence of the proof of any of the intentions men--tioned in section 364-A, the offence would fall within the ambit of section 363, P. P. C. The antecedents of the appellant do not show that he has a bad character or was a previous convict. It cannot be definitely said that he had lifted the child with any of the intentions mentioned in section 364-A, P. P. C. I, therefore, alter his conviction to one under section 363, P. P. C. Since his arrest on 8th of October 1968, he had been facing the vicissitudes of a trial for more than two years. In the circum--stances of the case a sentence of five years' R. I. Will meet the ends of justice. I order accordingly.