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Criminal Appeal No. 1123 and Murder Reference No. 290 of 1979, decided on 19th April, 1982.

---S.364-A-- Evidence, appreciation of-- Complainant father of kidnapped child having no enmity with accused nor accused previously known to him--Prosecution witnesses having no axe to grind against accused, their testimony found consistent, uniform and confidence inspiring-- Prosecution witnesses cross-examined at length but nothing material could be taken out of them-- Conviction of accused, held, rightly recorded.

---Ss. 364-A 8 363-- Evidence, appreciation of-- Evidence on record not disclosing any material to cover purposes of kidnapping---Kidnapped a minor child of 3 years-- Nothing to say that accused kidnapped child for lust, slavery, murder, grievous hurt or for any other purpose specified to constitute offence under S. 364-A-- Accused, held, kidnapped child from lawful guardianship-- Conviction under S. 364-A, P.P.C. altered to one under S.363 and sentence reduced already undergone.

Rana Muhammad Anwar at State expense for Petitioners.

Tasadiq Hussain Gillani, A. A.G. for the State.

Date of hearing: 19th April, 1982.

Ghulam Sakhi, aged 20 years, son of Abdullah Jan of District Jalalabad (Afghanistan) was tried for kidnapping a child named Muhammad Ashraf alias Bagga, aged 2-]

2. On 3-12-1975 at about 11-30 a.m. Muhammad Ashraf alias Bagga, a child of 2 /3 years was playing with other children outside his house near Sarai Sind Nishat Road, Multan. After the other children went inside the Sarai the appellant picked up and kidnapped the child. The appellant with the child had proceeded when Khushi Muhammad P.W. appeared and on seeing the child with the appellant raised alarm which attracted Muhammad Sadiq complainant P.W., Sardar Muhammad P.W., Abdul Ghafoor apart from Bashir Ahmad and Muhammad Rafiq not examined. All of them surrounded the appellant and took the child from possession of the appellant. On their enquiry the appellant gave out his name as Ghulam Sakhi, confessed his guilt and begged to be forgiven. Since the appellant had kidnapped the child he was being taken to the police station when Bashir Ahmad, A.S.I., P.W. met them and recorded statement of father of the child, Muhammad Sadiq P.W., on Nishat Road, at 12-30 p.m., on the same day on which formal F.I.R. was registered at Police Station, Harram Gate. Multan, at 12-45 p.m. The distance between the place of occurrence and the police station was two furlongs.

3. The prosecution examined Muhammad Sadiq Khushi Muhammad, Sardar Muhammad and Abdul Ghafoor who deposed that they saw the appellant taking away the child when Khushi Muhammad snatched the child from the appellant and they all seized the appellant and produced him before the A.S.I. who arrested the appellant. Bashir Ahmad A.S.I., P.W. proved the investigation. The trial Court found the appellant guilty and convicted and sentenced him as aforementioned.

4. The defence plea was a bare denial. It was stated by the appellant in his examination under section 342, Cr.P.C. that in fact he wanted to protect that child from the hazards of traffic and in doing so he lifted him aside but was falsely implicated in the case.

5. Learned counsel for the appellant in this Jail Appeal who appeared at the State expense has argued that the appellant was innocent and was falsely implicated because the appellant tried to save the child from hazards of traffic. In his submissions no offence under section 364-A, P.P.C. is made out as there is no evidence that the appellant kidnapped the child for one of the purposes specified therein. According to the learned counsel, if at all, the appellant had committed the offence under section 363, P.P.C. and had already suffered sentence of over six years because he was in custody since 3rd December, 1975.

6. Muhammad Sadiq complainant (P.W.1) is father of the kidnapped child who had no enmity with the appellant. The appellant was not previously known to the complainant. Similarly, Khushi Muhammad, Sardar Muhammad, Abdul Ghafoor P.Ws. no doubt are Mohallehdar of the comp lainant but they had no axe to grind against the appellant. All of them deposed that the appellant kidnapped the child but did not succeed on account of their timely intervention. Their testimony is consistent, uniform j and confidence inspiring. They were cross-examined at length by the appellant himself as also by the learned counsel representing the appellant but nothing material could be taken out of them in favour of the appellant The trial Court rightly believed their testimony and we agree with the trial Court that the appellant kidnapped Muhammad Ashraf alias Bagga minor. The defence plea is not plausible. It was rightly rejected by the trial Court.

7. We find that the evidence on record does not disclose any material to cover the purposes mentioned in section 364-A P.P.C. The age of the minor being about 3 Years it cannot be said that the appellant kidnapped, him for just, slavery, murder, grievous hurt or for any other purpose y specified to constitute offence under section 364-A, P.P.C. In the circum stances of the present case and evidence on record, we feel satisfied that the appellant kidnapped the minor child from the lawful guardianship within the meaning of section 363, P.P.C.

8. For the foregoing reasons, we set aside the conviction of the appel lant under section 364-A, P.P.C. and convict him under section 363, P.P.C. The appellant was arrested at the spot on 3-12-1976 and has remained in custody eversince his arrest. Therefore, in the circumstances of this case, we award him sentence of rigorous imprisonment already undergone by him.

9. With this modification, the appeal is dismissed.

The death sentence is NOT confirmed

M. Y. M Death sentence not confirmed.

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