' Mst. Nauras Bibi alias Mst. Fatima Bibi daughter of Lal Masih stands convicted vide judgment, dated 3-6-1991 passed by the learned Additional Sessions Judge, Gujranwala; under section 364-A, P.P.C. For the kidnapping of Mst. Khalida aged 4 years and was sentenced to life imprisonment. The appeal of the convict is being disposed of by this judgment.
2. The occurrence took place at about Shamwela in the area of Village Hinda which is at a distance of three miles in the south-eastern side of Police Station Saddar, Kamoke and was reported to the police by Rehmat Ali, father of the victim, through his statement Exh.P.A. Recorded by P.W.4 Muhammad Siddique, S.-I. At Bus Stop, Kamoke G.T. Road, at about 6-30 p.m. On the basis of which F.I.R. Exh.P.A./1 was recorded by P.W.1 Nazir Ahmad A.S.-I. In the police station at about 6-45 p.m.
3. In the F.I.R. It was stated that at Shamwela his daughter Mst. Khalida went outside the house for playing; when she did not come back for quite some time and the darkness started prevailing he got worried and started searching his daughter. During the search he met Riasat Ali son of Ghulam Haider who informed that a short while ago while he was coming to the village after having alighted from the bus, he met on the way a woman of blackish colour, round shaped, of the age of 35/36 years, wearing white Shalwar and flowered shirt, carrying a girl of fair colour, of the age of 4 years in her lap, going towards G.T. Road side. On this information he along with Muhammad Ishaq P.W.3 and Munir Ahmad P.W. Reached G.T. Road Lahore-Gujranwala and searched for the daughter at the nearby Bus Stop. During search the complainant reached bus stop of village Salar and saw a woman (whose name and address was subsequently known as Mst. Nauras) standing on the bus stop, waiting for the bus. She was carrying the daughter of the complainant in her lap wrapped in a Chadar. The complainant with the help of Muhammad Ishaq and Munir Ahmad P.Ws. Overpowered Mqt. Nauras and recovered from her his daughter Mst. Khalida; alongwith the P.Ws., Mst. Nauras alias Fatima Bibi and his daughter then set out for the police station for lodging the report.
4. The appellant was fOrmally arrested. When she was produced by the P.Ws. Before P.W.4 Muhammad Siddique, Sub-Inspector on the same day and time at Bus Stop, Kamoke G.T. Road, Lahore.
5. The prosecution examined as many as four prosecution witnesses in support of the charge against the appellant/convict. P.W.1 Nazir Ahmad A:S.-I. Recorded the formal F.I.R. Exh.P.A./1 on receipt of complaint Exh.P.A.; P.W.2 Rehmat Ali who is the complainant as well as father of the girl Mst. Khalida, has fully supported the F.I.R. P.W.3 Muhammad Ishaq, who is also the eye-witness, has supported the prosecution version and P.W.4 Muhammad Siddique, Investigating Officer stated that when he was present alongwith police party at Bus Stand, Kamoke, P.W.2 Rehmat Ali complainant alongwith P.W.3 Muhammad Ishaq and P.W. Munir Ahmad and a child namely Khalida aged 4 years alongwith Nauras Bibi convict approached him; he had recorded the statement Exh.P.A. Of P.W.2 Rehmat Ali; interrogated the accused and arrested her. He also stated that he had sent the complaint to the police station and investigated the case; recorded the statements of the witnesses; inspected the spot and prepared site plan Exh.P.B.
6. The convict/appellant during her statement under section 342, Cr.P.C. Denied the prosecution case. In answer to the question "why this case against you"? She stated as follows:-- "I am beggar. On 20-11-1987 at about evening time I went to the house of complainant for begging.
He was all alone in the house. When I begged from him for some money he tried to outrage my modesty and when I resisted and raised alarm, the complainant, in order to save his skin and honour falsely implicated me in this case with the connivance of the local police and the P.Ws. By planting kidnapping of his daughter upon me through a concocted story of this case. The P.Ws. Are closely related to the complainant due to which they have deposed falsely against me."
7. The learned counsel for the appellant contended that a false case was got registered by the complainant against the appellant/convict; however, mainly concentrated her arguments on the plea that the evidence did not bring home to the appellant any one of the intentions mentioned in section 364-A, P.P.C. And in the absence of the proof of any of the intentions mentioned in the aforementioned section; the offence would fall within the ambit of section 363, P.P.C. As antecedents of the appellant do not show either of bad character or being a previous convict.
8. I have heard the arguments of learned counsel at length and have perused the record with her able assistance; I am constrained to observe that the State Counsel had not appeared on the previous dates of hearing that is 4-12-1995, 7-12-1995 and even today no one is present on behalf of the State; in such circumstances, I have no alternative except to decide the case on merits.
9. It would be appropriate to reproduce section 364-A, P.P.C. Which reads as under:-- "Section 364-A. Kidnapping or abducting a person under the age of ten.--- Whoever kidnaps or abducts any person under the age (fourteen) in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years."
10. From bare reading of the section two conditions under section 364-A, P.P.C. Are required to connect an accused with the offence; firstly that the act of the accused should amount to kidnap/abduct and secondly the victim should be less than ten years of age; further the purpose and intention underlying the kidnapping is to murder or subject to grievous hurt or slavery or to the lust of any person.
11. The contention of the learned counsel that there is no evidence on record and it is not clear from the record as to with what motive the victim child was being kidnapped by the appellant; true neither the Investigating Officer found the convict to be a history-sheeter or involved in any other such like case nor the P.Ws. Had brought anything on record in support of the motive for kidnapping as required under section 364-A, P.P.C.
12. The only question in appeal which arises for determination is as to whether it is a simple case of kidnapping from lawful guardianship of the complainant falling under section 363, P.P.C. Or the case is attracted under the provisions of section 364-A, P.P.C. ,
13. In case Mahboob Zaman v. The State 1975 PCr.LJ 568 relied upon by the learned counsel; the learned Judge while altering his conviction from section 364fA, P.P.C. To section 363, P.P.C.
Observed that the antecedents of the appellant did not show that either he was of a bad character or was a previous convict; and held that in the absence of the proof of any of the intentions mentioned in section 364-A, P.P.C.; the offence would fall within the ambit of section 364, P.P.C.
14. The facts of the supra case are quite distinguishable and are not applicable to the facts of the case in hand as in the supra case, the learned Judge also observed that the way of living and behavior of the appellant was that of an abnormal person and he had left his home perhaps because of domestic trouble. In case Muhammad Latif v. The State 1986 MLD 1708 Lahore; the learned Judge relying on the aforementioned case and case Shakeel Ahmad v. The State PLD 1972 Lah. 374 altered the offence of section 364-A, P.P.C. To section 363, P.P.C. On the basis that the antecedents of the appellant were not to the effect that he was a bad character or that he was a previous convict and that there was nothing on the record to infer that the appellant had intention of lifting the child for bringing home the offence under section 364-A, P.P.C. Their Lordships of Supreme Court in case Abdul Hafeez v. The State 1983 SCMR 1143; relied upon by the learned counsel; observed that:-- "It is obvious from the deposition of Mst. Hamera, which can be legitimately considered for discovering the purpose and intention underlying the kidnapping, that she was not kidnapped to be murdered or subjected to grievous hurt, or slavery, or to the lust nor was there any such danger.
In the circumstances, discussed above, it Was a simple case of kidnapping from lawful guardianship which is covered by the definition contained in section 361, P.P.C. And is punishable under section 363, P.P.C."
15. With due respect to their Lordships; the dictum laid down in supra case is also not applicable to the facts of the case in hand as in the aforementioned case their Lordships converted the offence under section 363, P.P.C. Keeping in view the attitude of the father and strong possibility of complicity of the real uncle of the said Mst. Hamera in offence.
16. The contention of learned counsel that the. Dictum laid down in case Rehman Gul v. The State PLD 1988 SC 147 relied upon by the learned trial Judge is not applicable as the facts are quite distinguishable from the case relied upon. True; in the aforementioned case there was evidence of extra-judicial confession made by the accused wherein he had admitted that he had committed the act for the purpose of selling the child; while the purpose and intention underlying the kidnapping of the victim in case in hand is missing; in spite of it the observation made by their Lordships in the supra case cannot be ignored which is reproduced as under:-- "Slavery in the context of sale of child of two years would in such cases, have to be given the extended meaning of holding a person as property commodity or object involving the concept of ownership. The child in this case, would have remained in possession of the appellant as distinguished from custody."
17. The contention of learned counsel that there is no evidence on record and it is not clear from the record as to with what motive the victim child was being kidnapped; the issue was discussed in case of Deputy Legal Remembrancer v. Karuna Baistabi ILR 22 Cal. 164; it was observed:-- "Illustration (a) to section 106 of the Evidence Act, to which the learned Deputy Legal Remembrancer called our attention, has an important bearing upon the question we are now considering. That illustration is to this effect: 'when a person does an act with some intention other than that which the proving that intention is upon him'. If notwithstanding the act of purchase of these two girls successively, the intention was something other than that which would evidently be suggested by the character and circumstances of the act, it was for the accused to have shown that, but no such thing has been shown on the part of the accused."
' Relying on the dictum it was held in case Siddique and others v. The State PLD 1959 Dacca 956 that:-- "In a case under section 366, Penal Code, 1860, there can seldom be direct evidence as to the actual intention of the abductor and that intention must be inferred from the circumstances.
Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he had abducted her with the intention of having sexual intercourse with her, either forcibly or with her consent after seduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies on him under section 106 of the Evidence Act, 1872 to prove that intention."
18. The intention of an accused is to be gathered from the evidence and circumstances of the case: It is proved beyond any shadow of doubt that the appellant kidnapped the victim girl;. She was resident of Kaccha Gojra Police Station Chak Jhumrah, District Faisalabad; has not proved the object of her visit to the locality; merely to claim a beggar; is not sufficient in such-like cases; even otherwise admittedly had no means of livelihood; her intention, therefore, was quite clear. She had kidnapped the girl in order to subject her to slavery and the offence under section 364-A, P.P.C. Was clearly made out. It was rightly observed in case The State v. Rahman Gul 1987 PCr.LJ 2527 that:-- "The cases of child lifting have become very common. The act of abduction makes the life and abductee as well as of parents miserable. The agony and sufferings of a person, whose girl is kidnapped, can be very well imagined."
19. The arguments of the learned counsel for the appellant that the evidence on record does not disclose ingredients of the offence under section 364, P.P.C. Is without any substance. Mst. Khalida victim was stranger to the appellant. The appellant definitely had taken her away and kept her in her custody; it was the good luck of the minor girl and her parents that the accused could not achieve further nefarious designs. The appellant was neither known to the complainant nor the P.Ws. Prior to the day of occurrence; the bare suggestion that she had been falsely involved in the case; does not advance her case in any manner.
20. Keeping in view the facts and circumstances of the case; since her arrest on 20-11-1987; she had been facing the vicissitudes of a trial about 4 years; further being a married woman and being to be first offender of an offence; moreover the girl was recovered within the shortest possible period; the sentence of life imprisonment awarded to the accused seems to be excessive being deterrent punishment; she has already suffered agony of jail and needs reformatory punishment being an uneducated and belonging to down trodden. The same is reduced to R.I. For seven years. The Jail Authorities will grant her the benefit of the provisions of section 382-B, Cr.P.C. In computing her sentence of imprisonment.
Sentence reduced.