' SARDAR MUHAMMAD RAZA, J.--- Mst. Jehan Ara convict wife of Zameer Zada of Bicket Gunj, Mardan, through the authorities of Central Prison, Peshawar, has filed this appeal against the judgment, dated 16-11-1995 of learned Sessions Judge, Mardan, whereby she was convicted under sections 337-J and 365-A, P.P.C. For administering poisonous drug to Junaid Anwar, a minor boy aged 5/6 and then kidnapping him for ransom. She has been sentenced to imprisonment for life and forfeiture of property, if any, under section 365-A, P.P.C. And R.I. For ten years under section 337-J, P.P.C. Both the sentences, with benefit under section 382-B, Cr.P.C., were to run concurrently.
2. Junaid Anwar son of Jamshed Khan, a student of Class 1 went out of his house at Bicket Gunj, Mardan, on 17-8-1994 at 13-30 hours. At 15-15 hours somebody rang up, disclosing him as "Manzarey" and informing that the boy was with him at Nowshera that a sum of Rs,15,00,000 be arranged for his release and that next phone call for further message be awaited till 8 p.m. The telephone rang up again at 16-00 hours. This time some lady was on the other end, asking, if the message conveyed by Manzaray was properly understood. On receiving the answer in the ffirmative, she also put the matter off to 8 p.m.
3. Home people reflected that three days ago, their telephone number 61136 was obtained by their neighbour Mst. Jehan Ara that the boy frequently used to visit her house and that the voice on telephone resembled the voice of Jehan Ara. Reinforced by such suspicion and with suspicion reinforced, Aurangzeb Khan, the uncle of Junaid, within 15 minutes, at 16-15 hours lodged a report at Police Station "A" Division, Mardan registered at Serial No,1203, charging Jehan Ara and her son Zeeshan for kidnapping minor Junaid for ransom.
4. After reducing the aforesaid charge into F.I.R. Exh.P.A. Ainuddin Khan alongwith the complainant and witnesses from the locality, including Habibur Rehman and Humayun, hurried to the house of the appellant Jehan Ara. On search, the minor boy Junaid was found lying unconscious upon beddings in a large tin box. He was rushed to the hospital where he showed no response to painful stimuli. His pupils were fixed, pulse not traceable and the blood pressure not recordable. The doctor suspected the administration of drugs, chemicals or poison and considered the condition to be dangerous to life. The stomach was washed, the contents were sent for chemical analysis and the patient was referred to Lady Reading Hospital, Peshawar. The Chemical Examiner detected tranquilizer in the stomach wash.
5. Mst. Jehan Ara and her son Zeeshan were arrested soon after recovery. They involved another Iqbal who also was arrested. On 24-8-1994 Jehan Ara and Zeeshan were produced before Mr. Masoodur Rehman, Magistrate First Class, Mardan where the lady made a confession Exh.P.G. While Zeeshan gave a statement Exh.P.H. Claimed by the prosecution to be a confession. At the close of trial, Iqbal and Zeeshan were acquitted of the charges, while Jehan Ara is before this Court after conviction.
6. Not verbatim but, in nutshell, the impressionistic reproduction of the confessional statement (Exh.P.G.) of Mst. Jehan Ara would indicate that she is a literate woman and a teacher in some school of Handicrafts. She knew Iqbal, the co-accused who was a driver in the hospital and who had floated the idea of kidnapping some one for ransom. As she was financially in a bad shape, she succumbed to the persuation and administered four tablets to Junaid who frequented her house. When fell unconscious, the boy was laid on a cot and Zeeshan was deputed to take care.
Mimicking a male voice (her original too having a male tendency) she rang up at Junaid's house.
Then she went to inform Iqbal, who left to arrange for the conveyance. To her bad luck, instead of Iqbal, the police arrived. She hid the boy in a box wherefrom he was recovered.
7. Through Exh.P.H., Zeeshan acquitted co-accused and a student of 9th class, says, that not aware of the occurrence, when he returned home, he found that the police had raided his house. The boy who was intoxicated by his mother at the instance of Iqbal, was recovered in his presence. The accused had never confessed anything. He expressed his ignorance about occurrence and stated at the very outset, in answer to 1st, 3rd and 4th question (Exh.P.H./ I put by the Magistrate, that he would not confess and that he would give a simple statement. Such narration of facts without being inculpatory cannot be dubbed as confession by any stretch of imagination. It can neither be used against his ownself nor against Iqbal nor against Jehan Ara. If such statement had been given by him, without having been treated as an accused, he would have been a star-witness of the prosecution. Thus, the present statement neither makes him an accused nor a witness. He being useless altogether, was rightly acquitted and rightly was Iqbal against whom there was no evidence worth the name except the confessional statement of co-accused Jehan Ara without corroboration and the statement of co-accused Zeeshan, which was not a confession at all.
8. Before adverting to what the appellant has in store for her in her defence, it may be observed that the instant one is a case where apparently there is no motive for false charge. Though Jehan Ara appellant, in her statement under section 342, Cr.P.C. Has come up with a reason that the complainant party wanted to take her house but this allegation is neither supported from the prosecution evidence nor from anything adduced by the accused. It has not gone beyond a bald statement. Second is her reason to the effect that she is involved at the instance of her uncle Abdus Sattar who had appeared against her without being a witness to the occurrence. This also does not appeal to reason that a neighbour, having no enmity of his own, would involve another neighbour and that too, a lady for an offence that carries capital charge simply to please another relative of the accused.
9. Such charge brought about under aforesaid circumstances was extremely prompt and, thus, left no room for consultations and deliberations. Its truth is evidence from the hard fact that the boy Junaid was not only recovered by police in the presence of local witnesses, from the house of Jehan Ara appellant but his recovery was effected from a box and that too in a state of unconsciousness. Such recovery, as such, is admitted by the appellant herself, through alluding to different circumstances, which will be attracted to in due course. Strong circumstantial evidence of recovery, in the condition as it was, cannot be wriggled out from by the appellant. The medico- legal report and report of Chemical Examiner are further supports rendered to the prosecution. Last one is the confessional statement of the accused. We believe and hold that the appellant is linked with the commission of both the offences she has been convicted of.
10. We now advert to the appellant's defence. Learned counsel for the appellant contended that the recovery was not properly proved and the witnesses were highly interested. In this context, we have gone through the evidence on record and have no reasons to doubt the veracity of P.W. Aurangzeb, the complainant who, as said earlier, had no motive of his own to bring a false charge. We see no reasons, similarly, to reject the statement of Ainuddin, S.H.O. Who is supported by Habibur Rehman (P.W.6) a witness to the recovery; the other one namely Humayun having been abandoned as unnecessary. Above all, such recovery and the condition in which it was, are admitted by the appellant herself in her statement under section 342, Cr.P.C. She has, no doubt, taken the plea that the boy, in her absence, had taken the sleeping pills while playing hide and seek with his mates and, thus, had hidden himself in the box.
11. Such a far-fetched logic, we must say, is neither reasonable nor logical. How could the minor boy know as to where the pills were lying? How could he know that those were sleeping pills? How the taking thereof was at all necessitated because the pill induces sleep and does not help in hiding someone. It should have better been administered to the "seeker" rather than to the "hidden". We, in the circumstances reject the reasons given by the appellant and hold that the pills were administered by none else but the principal accused and owner of the house in question with the criminal men's read that she subsequently conveyed through telephone.
12. Next objection of the learned counsel was about the veracity of confessional statement of Jehan Ara appellant. It was stressed that the statement was neither true nor voluntary. We have given our considered thought to this aspect of the case and observe that the appellant/convict was caught in such a hurry and so unawares and the boy was recovered from a box in her house in such a horrible condition that she had no choice but to confess. She was not in a position to come out with any plausible explanation. It was only much subsequently, in her statement under section 342, Cr.P.C. That she thought of placing some ifs and buts to the confession. Her explanation of the occurrence and recovery seems to be an ill-thought drama. She did not think of the fact that hide and seek is not played by a boy alone. She failed to give names of other boys. Hiding one's self after taking sleeping pills was not at all confidence inspiring and so the appellant, minus her ill- fitting explanations, has rather supported her confessional statement in her statement before Court under section 342, Cr.P.C. The admissions, as well as proof, of the factum of recovery of the boy, are alone sufficient to conclude that the confession is in line with what in fact happened. The appellant had no choice but to tell the truth and so do we conclude that the statement was true.
13. With regard to the voluntariness of the concessional statement, the Magistrate has taken all necessary precautions. The appellant is an educated woman and she was fully aware of the fact that she was before a Magistrate in Court and not before a Police Officer. The only matter that attracts attention is a 6 days' delay in recording of confessional statement but, in the circumstances of the present case, this also crumples into insignificance. One may not fail to appreciate that in the instant case Jehan Ara appellant was not the only accused arrested and interrogated. Iqbal co-accused was also interrogated almost for the same duration. He was produced before Magistrate but he flatly refused to confess. Being an adult male he could easily be subjected to inferior degrees of the methods of investigation but he was not worked upon. The reason that he might have been a tough soul, is totally negated by the third co-accused named Zeeshan, the son of appellant, who was hardly thirteen. If tried upon, his confessional statement would have been an asset to the prosecution but he also refused to confess. So, the appellant could have easily refused to make a confession, like Iqbal and Zeeshan did under similar conditions and especially when, as pleaded by defence, all the three were produced before Magistrate at one and the same time. Appellant behaved quite differently and hence we hold that her act was voluntary.
14. Last was the legal criticism over recording of conviction for the offence of kidnapping. It was contended that the offence of taking away, by force or by deception, of the minor boy from physical possession of the lawful guardian is not proved in the instant case. We agree with such contention but still believe that the offence in question is completed as well as proved. Kidnapping, like one in hand, is defined in section 361 of the P.P.C., the relevant part whereof is reproduced for convenience of reference.
' Section 361, P.P.C. Kidnapping from lawful guardianship.--- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
' Explanation ...............................................................................................................
' Exception ...................................................................................................................
15. Noteworthy feature of the definition is that the offence is not restricted merely to the taking away of the minor from "physical possession of the lawful guardian" but is fairly widened to rendering the minor "out of the keeping of lawful guardian". A victim though may not be taken out of the possession of a lawful guardian yet it can constitute an offence if he or she is kept "out of the keeping of a lawful guardian". Any action of an accused whereby some minor is kept away from the keeping of a lawful guardian, is an offence of kidnapping even if such minor is not physically removed. Any act done by the accused which may be regarded as proximate cause of a minor being kept out of the keeping, authority or control of a lawful guardian is an offence of kidnapping.
In other words, an act but for which the person would not have gone out of the keeping of a guardian, is an offence of kidnapping if done with the criminal mens rea indicated in the definition.
16. In the instant case, there may not be an evidence of the physical removal of Junaid from his house or from the street by the appellant Jehan Ara but, d as discussed earlier in detail, she certainly kept the minor not only from the keeping and control of the guardian but kept him in wrongful confinement, under wrongful restraint and concealed him in a box after administering intoxicant. This all was with a view to demand ransom which she demanded in fact. This constitutes an offence under sections 365-A and 337-J of the P. P.0 .
17. Consequently, we are of the view that the prosecution has succeeded in bringing home the required charge against the convict/appellant. The convictions and sentences were rightly recorded and imposed. We do not see any plausible grounds to interfere. There being no merit in appeal, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.