Find a Lawyer

Criminal Revision No. 295 of 1986, decided on 7th October,1986.

---Ss. 361 & 363--Petitioners, uncles of minors, allegedly removed children from custody of mother--Petitioners, held, in no manner were entitled to lawful custody of children--Conviction under S. 363, P.P.C. maintained, in circumstances.

Bashir Ahmad v. The State 1971 P Cr. L J 252 and Asghar Ali v. The State 1971 P Cr. L J 982 ref.

---S. 363--Sentence, reduction in--Petitioners behind bars and having undergone rigorous imprisonment for a period of five months--Parties compromised, children restored to father who in lieu thereof spent considerable amount towards maintenance of children and compensation to their mother--Sentence reduced to imprisonment already undergone by accused, in circumstances.--[Sentence].

Ch. Muhammad Abdus Saleem and S.M. Tayyab for Petitioner.

Abdul Latif Dol for the State.

Date of hearing: 7th October, 1986.

This revision petition is directed against the order, dated 9th of April, 1985 delivered by a Magistrate at Samundari, whereby the petitioner and one other were convicted on a charge under section 363, P.P.C. The petitioners were sentenced to suffer R. I. for a period of two years and to pay a fine of Rs.2,000 each in default to payment, to suffer further R.I. for a period of six months.

2. The petitioner then filed an appeal to assail their conviction and the same was dismissed on 7-5-1986

3. The prosecution story, in brief, is that on 22-8-1981, the petitioners namely Niamat and Salamat accompanied by their father namely Karim Bakhsh and Muhammad Ali kidnapped three minor children from the lawful guardianship of Mst. Hamidan Bibi P.W.2. It may be stated here that the petitioners Niamat and Salamat are the brothers of the husband of Mst. Hamidan Bibi, while Karim Bakhsh was the father-in-law of Mst. Hamidan Bibi who died during the trial, and Muhammad Ali is a close relative.

4. The registration of the case against the petitioners took place under section 363, P.P.C. in pursuance of an application Exh.P.A. moved by Muhammad Siddique P.W.1, wherein it was alleged that his sister Mst. Hamidan Bibi was married to Sakhi Muhammad a real brother of the petitioners, Niamat and Salamat. It was alleged that on account of a quarrel Mst. Hamidan Bibi left the house of her husband alongwith her children. It was further alleged that on 22-8-1981 the petitioner alongwith Karim Bakhsh and Muhammad Ali armed with a gun trespassed into the house of the complainant and took away the minor children. The local police made enquiry and on the basis of the application Exh.P.A. the registration of the case was ordered and accordingly the Police Station, Samundari registered a case.

5. At the trial, the prosecution relied upon the statement of Muhammad Siddique complainant P.W. 1 the real maternal-uncle of the minors. Mst. Hamidan Bibi appeared as P.W.2 the mother of the minors and two eye-witnesses namely Muhammad Rafiq P.W.3 and Muhammad Latif P . W . 4 .

6. With the assistance of the learned counsel for the petitioner, Ch. Muhammad Abdus Saleem Advocate, I have gone through the record of this case. The perusal of the same has led to the conclusion, that the prosecution has established its case beyond any shadow of doubt. Muhammad Rafiq P.W. 3 and Muhammad Latif P.W. 4 eye-witnesses, who are neighbourers and thus being natural witnesses have corroborated the complainant Muhammad Siddique and his sister Mst. Hamidan Bibi P.W.2. In this view of the matter there is nothing in the evidence to hold that the prosecution case suffers from any defect or flaw.

7. Learned counsel then drew my attention to the provisions of section 361, P.P.C. and the explanation thereto and the exception to section 361, P.P.C. The explanation and the exceptions are reproduced below: ----

"Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship."

Explanation.-- The words 'lawful guardian' in this section include any person lawfully entrusted with the care of custody of such minor or other person.

Exception.-- This section does not extend to the act -of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

8. Learned counsel for the petitioners contended that the minors were removed from one unlawful guardianship to another, because during the investigation, minors were recovered from the father Sakhi Muhammad who was also a natural guardian. Secondly it was contended that even otherwise it was a family dispute and the late Karim Bakhsh the grandfather of the minors alongwith his sons and relatives believed themselves in good faith to be entitled to the lawful custody of these minors, and hence no offence is made out.

9. I am afraid that none of these contentions can advance the case of the petitioners inasmuch as the petitioners who are the uncles, are in no manner, entitled to the lawful custody of these minors. They were uncles and had nothing to do with the custody or guardianship of these minors, in the life time of the mother and the father. Learned counsel for the petitioners placed reliance upon to judgments of this Court reported as Bashir Ahmad v. The State 1971 P Cr. L J 252, Asghar Ali v. The State 1971 P Cr. L J 982. Ratio of both these cases is not applicable to the facts of this case, inasmuch, as in both reported cases, the father of minor was accused of kidnapping.

10. It was next contended by the learned counsel for the petitioners that since 7th May, 1986 petitioners are behind bars and they have already undergone R.I. for a period of five months. It was also contended before me that a compromise has already taken place and the children have been restored to their father Sakhi Muhammad. It was also argued that Sakhi Muhammad has already spent huge amount towards the maintenance of the children and in compensating Mst. Hamidan Bibi, therefore, the sentence already undergone would be sufficient to meet the ends of justice. The learned counsel for the State also argued, that in peculiar circumstances of this case it seems to be a family dispute, hence sentence already undergone will be sufficient to meet the requirements of law. I agree with the learned counsel for the' petitioners and the counsel for the State, the sentence already undergone is proportionate to the crime. No useful purpose would be served to make the petitioners to suffer full term of imprisonment. Since Mst. Hamidan Bibi, also stands compensated, therefore, the sentence of fine is also remitted. Accordingly I hereby direct that the petitioners shall be released forthwith, if not required in any other case.

With these observations this petition is dismissed.

S.G.D./729/L Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.