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Criminal Appeal No. 5/K of 1985, decided on 19th August, 1985.

‑‑‑S. 363‑‑Kidnapping‑‑Girl under sixteen years‑‑Recovery of girl from accused‑‑No sexual intercourse committed with her‑‑Girl remaining with accused for whole of the day‑‑No evil intention of accused shown on record‑‑Accused remaining in jail for about six months‑‑Offence of kidnapping, held, was proved but in view of mitigating circumstances, sentence was reduced to one already undergone.

Akhlaq Ahmad Siddiqui for Appellant.

S. Murtaza Hussain for the State.

Date of hearing: 19th August, 1985.

The appellant has been convicted by the IXth Additional Sessions Judge, Karachi, for an offence under section 363, P.P.C. and sentenced to suffer R.I. for four years and also to pay a fine of Rs.1,000 or in default to suffer further R.I. for three months. He has challenged his conviction and sentence by this appeal.

2. The facts of the case are that on 16‑5‑1983 Mst. Safia Sultana, aged about 14 years, left her house for going to School as usual. Her father complainant Abdul Jalil used to bring her from the School at about 12‑30 ifs the noon. As usual he went to the School on the above date at 12‑30 p.m. and found that the girl had not attended the School on that day. He went on searching but could not find her. He suspected that the appellant, who lived in front of his house, had a hand in the disappearance of the girl. Abdul Jalil, therefore, went to the Police Station Landhi and lodged the report on the same day at 6 p.m. The complainant and the Investigating Officer Mr. Ghulam Haider started for her search and during this exercise at about 9 p.m. they found the appellant and Mst. Safia Sultana going towards her house. The appellant was arrested and Mst. Safia Sultana was secured.

3. On the next day she was sent to the Lady Medical Officer for examination and report regarding commission of rape. She was also examined by Police Surgeon to determine her age. According to the complainant the girl was aged about 14 years at the time of the incident. The Police Surgeon in his report which is based on the physical features of the girl, and not on the oscilation of bone joints has stated that she was aged about 15 years. In any case she was under 16 years of age at the time of the incident.

4. After usual investigation the appellant was sent up for trial

5. In support of its case the prosecution has produced Abdul Jalil (P. W. 1), Abdul Rehman (P.W. 2), Mst. Safia Sultana (P.W. 3), Mst Aqeela Bano (P.W. 4), Sher Zaman (P.W. 5) and Ghulam Haider (P.W. 6). The appellant has examined one witness Muhammad Alimuddin alias Alam in his defence.

6. The plea of the appellant is that he did not kidnap the girl Mst. Safia Sultana but her brother had brought her to his factory for getting her employment. He admits that he had taken the girl to cinema and had left the cinema at 9‑30 p.m. and was taking the girl to her house when in. the way he was arrested by the police. Thus, it is not denied that the appellant had taken away Mst. Safia Sultana from the custody of her father and kept her with him for the whole day on 16,5‑1983 and that at about 9‑30/10‑00 p.m. the same night the girl was recovered by the police from his possession.

7. The Lady Medical Officer, who had examined the girl was not produced as a witness in the trial Court, but the certificate, issued by her has been admitted in evidence as Exh.32 in which it is stated that no sexual intercourse or any violence was committed upon Mst. Safia. Sultana. In her deposition Mst. Safia Sultana also has not made any allegation of sexual act against the appellant.

8. We have heard the arguments of the learned counsel for the A parties. The learned counsel for the State concedes that the offence being technical the sentence of four years appears to be severe. From the record it appears that the appellant has remained in jail for more than six months during the trial and after his conviction. We are of the view that the appellant deserves leniency in the matter of sentence in view of the fact he did not molest the girl during the day she was in his possession. It is not even evident that he had any evil intention towards her. On the contrary, it is in the evidence that the appellant had friendly relation with P.W. Abdul Rehman the brother of the girl. It may, therefore, be possible that she had accompanied the appellant voluntarily with the intention of seeing a film in the cinema. However, it cannot be denied that according to the definition of kidnapping as laid down in section 363, P.P.C. the act of the appellant falls within the mischief of section 363.

9. In view of the mitigating circumstances stated above, we uphold the conviction of the appellant for the offence under section 363, P.P.C. but reduce the sentence of imprisonment to the period already undergone and also maintain the sentence of fine. The appellant shall be released forthwith as and when the fine is paid.

S.A. Order accordingly.

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