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Criminal Appeal No.715 of 1970, decided on 20th January, 1985.

‑‑‑---S. 364‑A‑‑Criminal Procedure Code (V of 1898), S.417‑‑Appeal against acquittal‑‑Kidnapping‑‑Whether accused forcibly kidnapped boy or just carried him on giving some allurement, not clear from evidence‑ Behaviour of eye‑witness of kidnapping found to be unusual and his statement contradicting with evidence of other witness‑‑Testimony of such witness, held, not reliable as not inspiring confidence.

‑‑‑--S. 364‑A‑‑Section 364‑A, application of‑‑Element of removal of abductee from place of abduction and taking away to some other place has to be seen‑‑Abduction taking place in vicinity of Chak but no evidence on record to show that an offence in nature of S.364‑A, P.P.C. had been committed‑‑Prosecution failed to establish charge under S. 364‑A, P.P.C. against accused‑‑Appeal against acquittal dismissed.

‑‑---S. 377/511‑‑Criminal Procedure Code (V of 1898), S.417‑‑Appeal against acquittal‑‑Sodomy‑‑Attempt to commit sodomy‑‑According to evidence of eye‑witnesses, who were both brothers, inter se accused found in process of preparing to commit sodomy with boy, when he was apprehended‑‑Held, neither offence under S.377, P.P.C. had been committed nor even it amounted to attempt under S.511, P.P.C.‑‑Stage of preparation not punishable‑‑Prosecution failed to establish its case against accused under S.377/511‑‑Appeal against acquittal coming up for hearing after 14 years of its admission and accused according to record gone abroad and settled in U.K.‑‑Appeal against acquittal dismissed, in circumstances.

Rafique Butt and Kh. Shaukat Ali for the State.

Nemo for Respondent.

Date of hearing: 20th January, 1985.

This is a State appeal against the acquittal of Ashfaq Ahmad respondent from the charge under section 364‑A, P.P.C. read with section 377/511, P.P.C.

2. The background is that on 12‑12‑1968, after Iftari time, Ijaz Ahmad aged about 6 years playing with his play‑mates in front of his house was found missing by his father Muhammad Ashraf P.W.1. He started searching the child alongwith his brother Muhammad Akram P.W.2 and one Lal Masih. While they were searching the child, they met Zafrullah P.W.3 who told them that he had seen Ashfaq Ahmad respondent taking away the child towards village flour mill. Thereafter, Muhammad Ashraf P.W.1 and his companion reached near the flour mill and heard the cries of Ijaz Ahmad. On entering the flour mill, Muhammad Ashraf P.W., and his companion saw Ashfaq Ahmad respondent standing naked while Ijaz Ahmad abductee was lying naked on the ground with his face downward. The eye‑witnesses apprehended Ashfaq Ahmad respondent. He confessed that he had brought the child to the flour mill in order to commit sodomy on him. Thereafter, Ashfaq Ahmad respondent was taken to the Police Station Saddar Sargodha, where Muhammad Ashraf P.W.1 lodged F.I.R. Exh.P.A. at 8‑30 p.m. on the same day. The police station is at a distance of 10 miles from the place of occurrence. Ashfaq Ahmad respondent, who was apprehended on the spot, was handed over to the police which arrested him.

3. The trial Court i.e. the Additional Sessions Judge, Sargodha; in his judgment, dated 6‑4‑1970, acquitted the accused on both the aforementioned charges, for the reasons that these could not be established beyond any shadow of doubt. The finding of the trial Court in respect of abduction charge under section 364‑A, P.P.C. is that there was statement of Zafarullah P.W.3 to the effect that he saw Ashfaq Ahmad respondent carrying Ijaz Ahmad and going towards the village flour mill. Before that according to the statement of Muhammad Akram P.W.2, Ijaz Ahmad was playing with other boys in front of his house. He also stated that he inquired from the boys about Ijaz Ahmad as to where he had gone but they could not give any definite reply about the whereabouts of the child. Thus, it is not clear from the statement as to whether Ashfaq Ahmad respondent forcibly kidnapped the boy or just carried him on giving some allurement to him. Thereafter, the prosecution story is that Zafar Ullah P.W.3 saw Ashfaq Ahmad respondent carrying Ijaz Ahmad and taking him towards the flour mill. It is evident from the statement of Zafarullah P.W.3 that at that time A the child was not weeping nor was Ashfaq Ahmad respondent got frightened on seeing Zafarullah P.W.3. Zafarullah P.W.3 did not question Ashfaq Ahmad respondent when he saw him as to why he was carrying the child. It is also strange that when he met the father of the child, namely: Muhammad Ashraf P.W.1, who inquired from him about the child, after answering his inquiry, Zafarullah P.W.3 stated that he went towards field to ease himself and did not accompany Muhammad Ashraf P.W.1 to locate the missing child. In other words, he informed the father of the child that he had seen Ashfaq Ah‑mad respondent taking away the child to flour mill and after providing this information, he went towards the fields to ease himself instead of accompanying the father Muhammad Ashraf P.W.1. This behaviour was indeed unusual. According to Muhammad Akram P.W.2, Zafarullah P.W.3, after providing the information, did not go to the fields in order to ease himself but went to his house. According to Muhammad Akram P.W.2, Zafarullah P.W.3 had met them when he was coming from his Dera and was going towards his house. Ijaz Ahmad abductee could not be examined as he was of tender age and unable to make a statement. On the basis of this evidence, the finding of the trial Court is that the testimony of Zafarullah P.W.3 did not inspire confidence and, therefore, the trial Judge, declined to rely on him. In our view, the finding is correct and he correctly appreciated the evidence. For the application of section' 364‑A, P.P.C. there has to‑be some element of removal from the place of an abductee and taking him away to some other place. In our view, this was a case within the vicinity of the Chak where Ashfaq Ahmad B respondent could have possibly attempted to take away the child. But there was no evidence to show that an offence in the nature of section 364‑A, P.P.C. had been committed. Consequently, the trial‑Court was correct to arrive at the conclusion that the prosecution has failed to establish the charge under section 364‑A, P.P.C. against respondent beyond any shadow of doubt.

So far as the charge under section 377/511, P.P.C. is concerned, admittedly, according to the statements of eye‑witnesses, Ashfaq Ahmad respondent was in the process of preparing to commit sodomy with the C boy, when he was apprehended. Therefore, neither the offence under section 377, P.P.C. had been committed nor even it amounted to attempt under section 511, P.P.C. The only evidence which could be brought on the record is the testimony of the eye‑witnesses who were both brothers namely; Muhammad Ashraf P.W.1 and Muhammad Akram P.W.2, who found Ashfaq Ahmad respondent naked at that time while the boy, was also naked and lying on the ground with his face downward. This evidence only shows that it was stage of preparation rather than attempt or the committal of the offence under the aforesaid sections. The trial Judge, therefore, arrived at the conclusion that a stage of preparation was not punishable since no offence was made out under the aforesaid sections against Ashfaq Ahmad respondent. We agree with the trial Judge. Consequently, the prosecution had not succeeded in establishing its case as against Ashfaq Ahmad respondent even under section 377/511, P.P.C. In such circumstances the acquittal was justified.

4. We also noted that this State appeal against acquittal was admitted in 1970 i.e. 14 years before. The record also discloses that service could not be effected on Ashfaq Ahmad respondent, as for the last six years or more he had gone abroad and settled in U.K.

5. Be that as it may, in our view, no interference is called for.

This State appeal is dismissed.

H.A.K. Appeal dismissed.

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