AFTAB FARRUKH, J.-Abdul Hafeez, son of Ghulam Muhammad, caste Bbatti, resident of Zahir Pir, District Rahimyar Khan, has been sentenced to death by Mian Abdur Rahman, Additional Sessions Judge, Lahore, vide judgment dated 6-7-1977, for the offence under section 364-A, P. P. C. In respect of the abduction of Mst. Hamera alias Billo (P. W. 3), aged five years at time of occurrence, by the appellant on 20.1(-1969, from Said Mitha Bazar, Police Station Tibbi, City Lahore. The case has been referred to this Court under section 374, Cr. P. C. For the confirmation of death sentence. The appellant has filed this appeal through jail .Which is Cr. A. No. 912 of 1977. Both the Murder Reference and the appeal are being disposed of together by this judgment.
2. The case for the prosecution succinctly stated is that on 2011---1969, at about 5 p. m. Mst.
Hamera was playing in Said Mitha Bazar along with other girls of that age, where the shop of Taj Din complainant is situated. (Taj Din has gone abroad and his report is proved by his brother Muhammad Bashir (P. W. 2), father of the abductee). She did not return home after the breaking of the fast. The complainant searched all around and on failing to find her, believing that some criminal had forcibly abducted her, ultimately, lodged the report (Exh. P. C. 1Y to that effect on 25-11- 1969, i.e. After five days, which was recorded by Bashir Ahmad A. S. I. (P. W. 6) of Police Station Tibbi, City Lahore, at the police station at 3-30 p. m.
The case is further disclosed by Mst. Hamera (P. W. 8) that on the day of occurrence at about 4/5 p. m. When she was playing in the bazar, the appellant offered her popats (nimak parah) and then physically lifted and carried her to a studio. On the following day, he took her to Karachi and after staying there for about 22 months where he used to confine her in his room, he took her to his parents in Khanpur and then later on to Multan. Subsequently, he brought her to Lahore in a studio and made her to work in films and obtained remuneration of her work, giving out that she was his daughter. All along she was kept in wrongful confinement under torture and fear and on her refusal to work in the films, she was tortured with burning iron rods.
Subsequently, he took her to Ghotki in the house of Bashir Ahmad Waterman (P. W. 4) and told him that his parents had died and she was his only child without a mother, whereupon Bashir Ahmad Waterman agreed to maintain her. About a year before her evidence at the trial, her parents came to Ghotki and identified her.
This. Case has been supported besides Muhammad Bashir (P. W. 2), father of the abductee, by Bashir Ahmad Waterman (P. W. 4) of Ghotki and Ghulam Shabbir Head Constable (P. W. 5) who was then posted in Ghotki. The evidence of Bashir Ahmad A. S. 1; (P. W. 6) and that of Muhammad Salim A. S. I. (P. W. 7) of Police Station Barqi is of formal nature. Taj Din complainant, Nawab and Mahfooz were given up as not available and the rest as unnecessary.
3. The accused has denied the allegations and explained the reason for case against him as follows : "There came a flood, I lost two sisters, one brother. I went to Sind. I became Malshi. 1 used to sleep in the hotel of Bashir P. W.'s brother. I deposited. My earning Rs. 9G0 with him. On my demand, he refused to return the money. He fell out with me and involved me in this case falsely."
4. Muhammad Afzal (P. W. 1), Record Keeper, Health Branch, Lahore Municipal Corporation, Lahore, has proved the birth entry (Exh. P. A.) and he has explained in cross-examination that the name of the girl Hamera has been written later on. This point is explained by Muhammad Bashir (P. W. 2) father of the abductee, as the midwife reported the birth when they had not named the girl. The name Hamera was given later on and, therefore, they got it entered in the relevant record. This is not the case of the defence that this entry of name has been fabricated recently. This is a matter of common knowledge that in the first instance very often midwives, etc. Lodge' the information promptly and at that time the child has even not been named, but subsequently when they name the child, they get the same incorporated.
According to the evidence of Muhammad Bashir (P. VV. 2), the fatter, during the days of abduction be was in Karachi and when Mst. Hamera was abducted, she was 4J years in age. He learnt of the abduction of her child on return to Lahore about three months after the incident. Nothing turns on it, as the uncle Taj Din had lodged the report within reasonable time and Muhammad Bashir was working in Karachi. From his evidence, it transpires that on getting the information that the girl was in the area of Tehsil Ghotki, District Sukkur, he reached there and after roaming for about 34 days in that area, one day be saw the abductee entering the house of a waterman, whereupon he contacted the Police Station, Ghotki and in the company of Ghulam Shabbir Head Constable (P. W.
5) be went to the house of Bashir Ahmad Waterman (P. W. 4) who produced the girl and the appellant who was keeping her there. The abductee at that time had told her name as Hamera.
The appellant was arrested then and there i.e. On 26-6-1976. He was produced before a Magistrate and remanded to police custody for transfer to Lahore and thereafter handed over to Muhammad Salim A. S. I. (P. W. 7) of Police Station, Tibbi. In these circumstances, it is proved that the girl was detained and subjected to slavery for nearly 6-- years.
5. We have carefully perused and considered the evidence with the help of Mr. Muhammad Rafiq Butt, Barrister-at-Law, counsel for the appellant at State expense, as well as Mr. Shafiqul Islam, Advocate for the State. There is no challenge to the effect that Mst. Hamera is not the daughter of Muhammad Bashir (P. W. 2), nor is there any challenge to the factum of her abduction. The appellant does not claim her to be his daughter or in any other manner entitled under the law to her custody. Therefore, the only question left for determination in this case is one of believing or not believing the recovery of Mst. Hamera from his custody and the consequent question whether subjecting her to wrongful confinement and torture after maliciously kidnapping her, and in fear of grievous hurt, coercing her to work in films and living upon her earnings, falls within the purview of section 364-A, P. P. C. Or not.
The recovery has been effected from Ghotki, District Sukkur. There is nothing on the record to indicate that Ghulam Shabbir Head Constable (P. W. 5) had any animus against the appellant or any reason whatsoever for falsely planting the recovery of Mst. Hamera from the custody of the appellant. Similarly. There is nothing on record to suggest that Muhammad Bashir (P. W. 2), father of the abductee, had any animus to falsely depose against the appellant. No liaison between Muhammad Bashir P. W. And the police is brought on the record to suggest the reason for their maliciously joining hands. The girl was abducted from Lahore as far back as the year 1969 and the report in the circumstances was lodged promptly, i.e. After making a private search for about four days by Taj Din, the paternal uncle of the abductee. Muhammad Bashir at that time was working in Karachi. He bad no link in Ghotki, much less to say with the Ghotki police. The mere suggestion of the appellant that Bashir Ahmad Waterman (P. W. 4) had falsely implicated him for misappropriating the deposit of Rs. 900 with him of his earnings, is not substantiated by the record.
The witness repudiated this suggestion in cross-examination. Nothing else is brought out in the cross-examination of Bashir Ahmad (P. W. 4) which should persuade us to doubt his testimony regarding the factum of recovery and the appellant keeping the girl with Bashir Ahmad on a representation that his parents as well as wife had died and he had only this daughter with him.
Bashir Ahmad (P.W.4) has explained that since he was a father of children he took pity and kept the abductee with him in his house while the appellant would go out for earning his livelihood and returning after 2/3 days. In these circumstances we are convinced beyond any shadow of doubt that the appellant had kidnapped Mst. Hamera aged 4/5 years, on 20-11-1969 from Lahore wrongfully kept her at different places constantly under fear of grievous hurt for nearly 6-- years, and ultimately she was recovered from Ghotki when he bad lodged her with Bashir Ahmad Waterman (P. W. 4).
6. From the evidence of Mst. Hamera, who at the time of her deposition at the trial was about 12 years in age and student of 4th class, it is proved beyond any shadow of doubt that she was deceitfully and forcibly kidnapped from said. Mitha Bazar, Lahore, nearly seven years earlier when she w playing in the street Thereafter, she was subjected to torture and constant] kept under the fear of grievous hurt and made to work in films at Lahore, A the earnings of which the appellant received and spent. What appears t us is that Mst. Hamera as a child of 4E or 5 years, was compelled to work in films in extra roles. We attach no importance to the argument of the learned counsel that the girl was working in films and the fact of her abduction would have been discovered. The girl was under ten, rather 5/6 years in age at that time, and with the torture would have been so terrorised that she dared not talk anything, nor would we expect her at that age to possess so much intelligence or consciousness so as to be able to think of getting out of the clutches of a criminal of no compaction, but when her conduct aroused suspicion in the mind of the appellant, he removed her from these surroundings to a far-off secluded place in Ghotki. We are convinced that her growth in age, the surroundings, the gradual realization of personality and confident conduct compelled the appellant to think of getting rid of her and finding some other form of her disposal and he thought of leading her to the dungeon brothels. The extra roles are generally insignificant and more particularly in groups etc. Even if one has the knowledge that a particular person is working in a film in an extra role, one has to find out and discover the same with quite an effort. We also have no evidence on record that the family of the detenu were film- going, apparently they look to be from poor background, the father was earning his livelihood in Karachi and the uncle, who bad a shop in Said Mitha Bazar, too left for Dubai for earning his livelihood. As such, we will not be wrong in presuming that the women-folk of 'Hamera's family did not have the occasion of seeing the 3/4 particular films in which Mst. Hamera got some insignificant extra roles. Following the letter and spirit of section 364-A, P. P. C. This incident and the whole transaction, in our opinion, clearly tantamounts to a highly aggravated. Form of slavery and torture, and we accordingly maintain the conviction of the appellant recorded by the trial Court.
We have no hesitation in confirming the death sentence awarded to him as this callous act of the appellant is too gruesome and immoral so as to attract any leniency. It is difficult to comprehend truly in its entirety the continuous mental torture and the agony of the poor parents whose minor girl had been abducted and they bad no clue of her for nearly 6J years. Every moment of their life must have been miserable and the deterrent sentence of death is the only sentence which is called for in the particular circumstances of this case and for curbing such social evils for dealing with such type of criminals.
7. While maintaining the conviction of the appellant under section 364-A, P. P. C., we dismiss his appeal and confirm the sentence of death awarded to him by the trial Court.