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---S. 363--Kidnapping--Completion of offence- -Question--Abductee taken out of her father's house by accused A--Accused B afterwards took abductee away--Accused B, held, came into contact with abductee after offence of kidnapping had completed--Accused B acquitted of charge of kidnapping and his conviction set aside in circumstances:

Muhammad Razzaq v. State P L D 1967 S C 363 and Nausher v. State P L D 1960 Dacca 920 ref.'

---S. 376--Rape--Facts showing abductee in a habit of sexual indulgence, consenting to accompany accused, and also consenting to sexual intercourse--Such facts, held, a mitigating circumstances- Sentence reduced to already undergone in circumstances.

Muhammad Bashir Khan for Appellants.

Muhammad Khalid Alvi for State.

Date of hearing: 6th June, 1982.

Rashid (aged 25 years) and Baqir (aged 22 years) were tried alongwith Razzaq, Tufail, Mst. Meena and Mst. Naziran their relations) for having kidnapped Mst. Shahnaz Bibi (P.W.2) (aged 13 years and 11 months) out of the lawful guardianship of Amanat Ali (P.W.1) and subjected her to rape by Bait at different laces, by magistrate Section 30 (Judicial), Saiwal, who vide his order, dated 15-2-1981, acquitted Razzaq, Tufail, Mst. Meena and Mst. Naziran but convicted Rashid and Baqir under section 363, P.P.C. and sentenced them to 5 years' R.I. and fine of Rs.1,000 each, in default, to undergo 6 months' R.I. each. Baqir was additionally convicted under section 376, P.P.C. and a fine of Rs.2,000 in default, to undergo R.I. for one year. It was directed that besides .the fine imposed, each of the appellants was to pay Rs.5,000 by way of compensation to Amanat Ali (P.W.1) under section 544-A, Cr.P.C. Both the convicts have filed this appeal challenging both their conviction and sentence, which is being disposed of by this judgment.

2. The prosecution case as narrated by Amanat Ali (P.W.1) in his statement Exh. P. A. which is the basis of F. I. R. in brief is that the complainant had six children including Mst. Shahnaz aged 13 years and 11 months. Mst. Meena (acquitted accused) was friendly with her. About 8 days prior to the registration of the case, Mst. Meena visited the house of the complainant at 8 p.m. and took with her Mst. Shahnaz Bibi (P.W.2) on the pretext that they were going to ease themselves outside the village. Mst. Shahnaz did not return home. Being apprehensive, he went out in her search to the house of Latif, father of aforesaid Mst. Meena, but to his utter dismay none of the members of that family was present there except Latif who told him that his daughter (Mst. Meena) and his wife (Mst. Naziran) have gone towards the dunes to answer the call of nature. At about 'mid-night, the complainant again went to the house of Latif and contacted the aforementioned two ladies. On his inquiry as to where his daughter Mst. Shahnaz was, the said ladies had expressed their ignorance about her whereabouts. He searched for her throughout the night but in vain. Next morning, he was told by Hafiz Abdul Sattar (P.W.4) and Abdul Sattar Jat (P.W.3) that they had seen the accused persons taking away Mst. Shahnaz Bibi with them at the bridge of 9-L Minor and that on their asking they were informed that they were going to attend some marriage party. The complainant then put the matter before respectables of the locality and in their presence, the accused party promised to return Mst. Shahnaz Bibi before the Punchayat. Consequently, one Jahangir son of Phoola Jat and others succeeded in the restoration of the girl. Mst. Shahnaz, on her return, disclosed to her father that she was enticed away and that Baqir had subjected her to sexual lust. The complainant after obtaining birth certificate Exh.P.B. pertaining to Mst. Shahnaz Bibi, lodged a report Exh:P.A. with Barkat Ali A.S.I. (P.W.7). He got the case formally registered and investigated the same. Mst. Shahnaz Bibi was medically examined by Lady Dr. Zahida Latif (P.W.8) on 17-7-1978 at 5-30 p. m. She observed the following symptoms on her person.

(i) No mark of injury anywhere on the body.

(ii) No mark of injury on the external genital.

(iii) Hymen is torn laterally and posteriorly.

(iv) Vagina admits two fingers and tender on examination.

She prepared two vaginal swabs sjpd transmitted them for 'detection of semen. .In her opinion, she was habitual to sexual intercourse. The lady doctor issued medico-legal report Exh.P.F. The girl was produced before a Magistrate who recorded her statement under section 161, Cr. P.C. on 18-7-1978.

3. On 26-7-1978, a pair of gold rings was taken into possession from Baqir which was seized through memo Exh. P. C. The complainant produced a receipt Exh.P.C./1 pertaining to the aforesaid ear-rings showing his ownership which was taken into possession through memo. Exh.P.D. The appellants and their co-accused were arrested and challaned to Court after usual investigation.

4. At the trial, 10 witnesses were examined by the prosecution in support of its case. The prosecution case hinges on the evidence of Amanat Ali (P.W.1), the first informant, Mst. Shahnaz Bibi (P.W.2), the prosecutrix who provided the ocular account. The evidence of Abdul Sattar Jat (P.W.3) and Hafiz Abdul Sattar (P.W.4) were also relied upon for they had seen the accused persons taking away Mst. Shahnaz Bibi, the abductee, with them on the night of occurrence. Medical evidence has been provided by Lady Dr. Mrs. Zahida Latif (P.W.8) who examined Mst. Shahnaz Bibi and Dr. Shamshad (P.W.10) who verified about Baqir accused being fit to perform sexual intercourse, besides Barkat Ali A.S.I. (P.W.7) who is the Investigating officer, the remaining witnesses are of formal nature.

5. In their statements, the appellants controverted the allegation of abducting Mst. Shahnaz Bibi and of committing rape on her. They stated that they were involved due to enmity. However, they did not produce any evidence in their defence.

6. I have heard learned counsel for the appellants as well as for the State and also gone through the record.

7. In the first place, the learned counsel for the appellants has attacked the conviction recorded by the trial Magistrate under section 363, P.P.C. It is contended that kidnapping is not a continuing offence. According to the prosecution, Mst. Shahnaz (P.W.2) was taken away from the lawful guardianship of her father on the night of occurrence at the pretext to go out of the village for easing themselves by Mst. Meena. As soon as Mst. Meena took her out of the house of her father, the control of her father on the abductee had come to an end and, therefore, the offence of kidnapping was complete. It is in the evidence that Mst. Shahnaz Bibi left her house with Mst. Meena and at the corner of their Ahata Mst. Naziran met them and then the three ladies went towards the dunes. After easing themselves they went to the canal for cleaning their hands and it was at this stage that the appellants and the two acquitted accused joined them. Mst. Meena allegedly had asked them to keep quiet and accompany her maternal-uncles. This narration of facts shows that the offence of kidnapping Mst. Shahnaz Bibi was already complete before the abductee was handed over by Mst. Meena to the appellants and the acquitted co-accused. In support of this contention, learned counsel has placed reliance. Muhammad Razzaq v. State P L D 1967 S C 363 and Nausher v. State P L D 1960 Dacca 920. I respectfully follow the dictum 'laid down in these authorities as they support the A argument pressed into service by the learned counsel. In this view of the matter, I hold that the appellants came into contact with the abductee after the offence of kidnapping had completed, therefore, the appellants' conviction under section 363, P.P.C. cannot be sustained. Consequently, they are acquitted of this charge and their conviction is set aside.

8. As for the conviction of Baqir, appellant, under section 376, P.P.C. is concerned, ire learned counsel has not thrown any serious challenge to the correctness of the order of conviction passed against the appellant. The only grievance learned counsel has canvassed at the Bar is, about the severity of sentence. He maintained that the abductee's age in this case was a month short of 14 years, according to the birth entry Exh.P.B. Section 375, P.P.C. which defines the offence of rape contemplates that intercourse committed with a girl of 14 years and above with her consent is not an offence. It is in the evidence that Mst. Shahnaz has been travelling in the company of the appellants to various places by various transports yet she did not make any complaint or raised protest that she was being taken against her wishes. Her medical examination also disclosed that there was no mark of violence on her person. Although the prosecutrix, was recovered after a week of her abduction yet the lady doctor did not find any injury on her genitals. Rather in the opinion of the lady doctor, her vagina admitted two fingers easily. All these circumstances when put together lead to the conclusion that the abductee was a consenting party in accompanying the appellants and also in the sexual indulgence. The learned counsel states that since this is a border line case, therefore, he would not press for the acquittal and would only submit that aforesaid factors should be, considered as mitigating circumstances. I think that there is force in " the submission made by the learned counsel and, therefore, I feel inclined to interfere with the quantum of sentence. While maintaining the conviction of the appellant under section 376, P.P.C., I am of the view that the appellant who has by now completed about 2 years 1 month and 13 days in jail including the period he spent in jail during the trial would fairly meet the ends of justice in the circumstances of the case. I accordingly allowing the benefit of section 382-B, Cr. P.C. to the appellant reduce his sentence to one already under a one.

9. The result is that Rashid, appellant, is acquitted from the charge under section '363, P. P. C. and his sentence is set aside. Likewise, Baqir, appellant, is also acquitted from the charge under section 363, P.P.C. and his sentence is also set aside. However, conviction of Baqir, appellant, is maintained under section 376, P.P.C. but his sentence is reduced to the period already undergone. With the modification indicated above, the appeal is partly accepted.

10. As I have materially interfered with the sentence, therefore, I also reduce the amount of compensation from Rs.5,000 to Rs.2,000 which should be paid alone by Baqir, appellant filing which he shall undergo further six months' rigorous imprisonment.

S.A Order accordingly

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