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Criminal Appeal No. 27 of 1962, decided on 11th October 1962.

Word "take" in S. 361‑Meaning‑Mental attitude of minor not relevant to act of taking‑ Taking' under S. 361 does not mean mere physical taking of minor from guardianship but also includes constructive taking from constructive possession of guardian‑Person taking away girl under 16 years with her consent‑Guilty under S. 366‑Sentence of 7 years, reduced to 3 years in view of girl's consent.

Ramchander v. Emperor A I R 1914 All. 376 and Ewaz Ali and others v. Emperor A I R 1915 All. 390 dissented from.

Abdul Rashid v. The State P L D 1959 Kar. 635 ; The Crown v. Manshomal Deumal 6 S L R 71 ; Mulo v. Emperor 8 S L R ; 182 ; Jetha v. Emperor 6 Bom. L R 785 ; In re Khalandar Saheb, 56 C L J 581 ; Reg. v. Christian Olifier 1864‑67 (Cox's Criminal Law Cases Vol. X, 402) and Kamala Prasad v. Emperor A I R 1941 Cal. 315 ref.

S. S. Raza for Appellant.

Muhammad Haleem for Respondent.

Dates of hearing : 4th and 5th October, 1962.

The appellant in this case was tried by the S. D. M., Cantonment, Karachi, exercising powers under section 30, Cr. P. C. (Mr. Ahmedullah) for offences unJer sections 366 and 376, P. P. C. He was acquitted of the offence under section 376, P. P. C. but was convicted under section 366, P. P. C. and was sentenced to undergo rigorous imprisonment for seven years. He has appealed against this conviction and sentence.

2. The appellant used to work at the shop of one Jeewaji, a sweet‑meat seller, which was opposite the house of Mst. Maryam Bai P. W. 3, a widow, in which she was then residing with her daughter Zubaida P. W. 4 and her two younger children. A window of the house of Mst. Maryam opened on to the place where the appellant used to work. The appellant was attracted by the girl Mst. Zubaida and used to make overtures to her which were resented by her mother who had actually complained about him to his employer. It is alleged that on the evening of 12‑5‑61 when Mst. Maryram had left her house to buy medicines for herself and her two younger children were playing outside in the street, the appellant came and induced the girl Zubaida to go with him offering to give her good clothes and money and to maintain her in a state of affluence. The girl Zubaida succumbed to his blandishments and left her home in the company of the appellant. When the girl's mother Mst. Maryam returned that evening she was surprised to find her daughter Zubaida missing from the house and she complained about this to her deceased husband's brother Usman P. W. 2 who on failing to locate the girl lodged a report at the Risala Police Station at 10‑45 p.m. that night as per Exh. 11/1. It further appears that one Abdul Razzaq P. W. 1 a neighbour of Usman P. W. 2 saw Zubaida in the company of the appellant near the Nigar Cinema that even ing and on coming to know later that she was missing he informed his neighbour Usman P. W. 2 of what he had seen and Usman then went to the Risala Police Station and lodged a second report Exh. 2/ 1 there at 2‑10 a.m. on the morning of 13‑5‑61.

3. Sub‑Inspector Saulat Khan P. W. 11, the then S. H. O. of Risala Police Station took up the investigation of this case. On the very next day namely 14‑5‑61 he received a telephonic message from the S. H. O. Police Station, Korangi P.I. Sabir Ali Khan P. W. 10 that he had arrested the appellant and a girl along with him as he found them in Korangi going about in suspicious circumstances. P. I. Sabir Ali had prepared a mashirnama Exh. 9/1 in respect of his securing of the appellant and the girl Zubaida, a second mashirnama Exh. 9/2 in respect of the seizure of the clothes the appellant was then wearing and a third mashirnama Exh. 9/3 in respect of the search of the room in Korangi then occupied by the couple and of the recoveries in the shape of a matress, a table cloth and articles of clothing recovered from this room. The S. H. O. Risala Police Station on receiving this telephonic communication from the S. H. O. Korangi immediately proceeded to Korangi and secured possession of the appellant, the girl Zubaida together with the mashirnamas prepared by the S. H. O. Korangi and the articles mentioned therein. He then recorded the statements of witnesses, sent the appellant and the girl for medical examination and the articles mentioned in the mashirnama to the Chemical Examiner. On the completion of the investigation the appellant was challaned in Court.

4. The appellant in his examination in the Court below denied having kidnapped the girl Mst. Zubaida. He said she had met him near the Nigar Cinema and she took him inside to see the show. They then went about from place to place and on the following day they went to Korangi where Mst. Zubaida allowed the appellant to have sexual intercourse with her.

5. The case for the prosecution rests upon the evidence of P. W. 1 Abdul Razzaq, a neighbour of Usman P. W. 2 and who on seeing Mst. Zubaida with the appellant at the Nigar Cinema that evening informed Usman about it as soon as he came to know that the girl was missing and an unsuccessful search had been made for her. P. W. 2 Usman is the uncle of the girl Mst. Zubaida and knows her since her birth in Junagadh State shortly before the Partition and their migration to Pakistan in 1947. He says that at the time of the incident Zubaida was about 13‑14 years of age.

6. Then comes the evidence of Mst. Maryam, the mother of Mst. Zubaida who corroborates her brother‑in‑law Usman P. W. 2 by saying that Zubaida was born to her in Junagadh State a few months before Partition and before their migration to Pakistan. She also speaks of how the appellant was paying court to her daughter of which she did not approve and of which she had complained to the appellant's employer. Lastly, there is on this point of kidnapping, the evidence of the girl herself Mst. Zubaida P. W. 4. She speaks of the blandishments and inducements offered to her by the appellant and how on the evening of Friday, the 12th May 1961 when her mother bad left the house to buy some medicines for herself and the younger two children were playing outside, the appellant came and cajoled her into leaving her home and going with him painting a rosy picture of the life she would have with him. She accompanied him from place to place, spent a night with him in a room in Korangi and was secur ed by the S. H. O., Korangi the following evening as she and the appellant were walking around Korangi.

7. There is also the evidence of the doctors who examined both the appellant and the girl Zubaida, of the mashirs in whose presence the clothes worn by the couple, the mattress and the table cloth from the room in Korangi were secured and the two reports of the Chemical Examiner concerning the seminal stains observed upon the articles of clothing, the vaginal and urethral smears. But, inasmuch as the appellant has been acquitted on the charge of rape and there has been no Acquittal Appeal in res pect thereof, it is unnecessary in this judgment to deal with the aspect of the case. The sole point that arises for consideration in this appeal is whether the charge under section 366, P. P. C. has been established against the appellant.

8. Mr. S. S. Raza appearing on behalf of the appellant first argued that the age of the girl Zubaida had not been conclusively established. He submitted that there was a discrepancy between the evidence of her uncle and her mother and also between the medical evidence on this point. He said that no school certificate showing her age and no vaccination certificate had been produced in this case. In a case of kidnapping the age of the girl is most material and forms an essential ingredient of the offence.

9. I am fully conscious of the importance of this issue and on examining the record before me I find that there are three pieces of evidence so far as the age of the girl is concerned, namely (i) the evidence of her mother and uncle, (ii) her clinical examina tion and (iii) her radiological examination. Her mother and her uncle are positive that she was only a few months old before they migrated from Junagadh State to Pakistan. As pointed out by the trial Magistrate, the circumstances of migration were so har rowing and frightening that those that have been through it will never forget for the rest of their lives the events of those dark days. Therefore, if the girl Zubaida was a few months old in late 1947 she must have been between 14 and 15 years of age at the time of the incident. There is also on this point the statement of the girl herself that when she went away with the appellant she had not till then commenced menstruating. Then there is the evidence of Dr. Anwarul Hasan, Police Surgeon, P. W. 6 who clinically examined the girl on 15‑5‑61. He examined her teeth, her breasts, her axillary hairs, her height, her weight and then referred her to the Radiologist Civil Hospital, Karachi. He then gave his certificate Exh. 6/1, stating that from clinical and radiological considerations she is aged about 15 years. In the light of all this evidence I cannot but conclude that the girl Zubaida at the time of her kidnapping on 12‑5‑61 was under 16 years of age.

10. Mr. S. S. Raza the defence Advocate next argued that the girl having voluntarily abandoned her mother's guardianship, was, as it were, a sort, of res nullius and, therefore, could easily be taken away by anybody without committing the offence of kidnap ping. I n support of this contention he relied upon three cases in Ramchander v. Emperor (A I R 1914 All. 376), in Ewaz Ali and others v. Emperor (A I R 1915 All. 390) and in Abdul Rashid v. The State (P L D 1959 Kar. 635). Before considering these cases I would like at the very outset to state that the Flat in this argument according to me lies firstly in taking guardianship to be some sort of temporary cover obtaining only so long as the minor remains under the room of its guardian and secondly, in thinking that the minor is capable of exercising any volition in the matter of retaining or throwing off its guardianship.

11. In Ramehander v. Emperor it was held by a Bench of that Court that where a minor girl under 16 years of age leaves her husband's house of her own free will and stays with the accused without force or fraud practised on her, the accused cannot be held guilty of abduction or kidnapping. Again in Ewaz All v. Emperor a Single Judge following the above case held that where a girl between 13 and 14 years of age left the house of her husband and her parents, met the accused on a public road and stayed with him for a month, the accused was neither guilty of the offence of taking or enticing the girl out of the keeping of her lawful guardian. In Abdul Rashid v. The State, Faruqui J. remarked that :‑

"Howsoever foolish the act of the girl might be in leaving her parent's shelter and going with the accused, if there is no doubt that the girl went willingly and of her own accord, the accused cannot be convicted under section 366 of the Penal Code."

Of course it should be added that in this last case it had not been established that the girl was under 16 years of age.

12. I find myself wholly unable to accept the conclusions or the reasoning of the above‑mentioned two Allahabad cases. It seems to me axiomatic that a girl under 16 years of age is a minor in the eye of the Criminal Law and as such she can exercise no volition in the matter of throwing off her guardianship and is also incapable of giving any consent to her kidnapper. The bond of guardianship between the guardian and the minor is continuous and does not cease on the minor leaving the parental roof. In The Crown v. Manshomal Deumal (6 SLR 71) it was held by a Bench of the Court of the then Judicial Commissioner for Sind that‑

"the mere fact that the minor has left the guardian's house does not put an end to the protection and control of the guardian."

Again in Mulo v. Emperor (8 SLR 182) it was held by another Bench of the same Court that where a young girl leaves her house she cannot be considered to have passed out of the keeping of her natural guardians and, therefore, the person who induces her to ac company him shortly after she leaves her house is guilty of an offence under section 366 of the Penal Code. In Jetha v. Emperor (6 B L R 785), a girl under 16 years of age while on her way to a vegetable market in search of work met another woman who under a promise of obtaining work for her took the girl to her house where she was detained. It was held that the minor girl had been wrongly kidnapped from her lawful guardianship. In re Khalandar Saheb, (56 Cr. L J 581) when interpreting the word "take" appearing in section 361 P. P. C., it was held that‑

"The mental attitude of the minor is not of relevance in the case of taking."

The word "take" means to cause to go, to escort, or to get into possession. When the accused takes a minor with him whether she is willing or not the act of taking is complete, and the condi tion is satisfied.

13. On the strength of the rulings mentioned in the above paragraphs I am satisfied that the appellant kidnapped the girl Zubaida from the lawful guardianship of her mother. Even if I were to agree with the contention of Mr. Raza that his client did not go to the house of the girl but only met her near the Nigar Cinema, this would make no difference so far as his guilt on the charge of kidnapping is concerned : for obviously the girl when leaving her home for the Cinema must have had a secret ap pointment with the appellant and must have been acting under the influence of the promises and the blandishments previously held out and offered to her by the appellant. The "taking" of section 361 P. P. C. does not mean physical taking from under the roof of the guardian : it also includes‑ constructive taking such as meeting at an appointed place outside and .this would constitute constructive taking from the constructive possession of the guardian. In a very old case in Reg. v. Christian Olifer (1864‑67 Cox's Criminal Law Cases Vol. X, 402), Baron Bramwell used these words :‑

"It is, however, equally clear that, if the girl, acting under his persuasion, leaves her father's house, although he is not present at the moment, yet, if he avails himself of that leaving which took place at his persuasion, that would be a taking her out of the father's possession, because the persuasion would be motive cause of her leaving."

14. It is, therefore, plain that the appellant in this matter is guilty of an offence under section 366, P. P. C. At the same time, I cannot forget that the girl Zubaida was a consenting party and had Agreed to elope with the appellant. Her consent to allowing the appellant to have sexual intercourse with her operates to absolve the appellant of guilt in respect of the charge under section 376, P. P. C. but, being under the age of 16, her consent to being kidnapped is no consent in the eye of the law. In this view, then, the appellant may be said to have committed a technical offence which does not call for a heavy sentence. The appellant is a young man of 20 years of age. His Advocate has invited my attention to a case in Kamala Prasad v. Emperor (A I R 1941 Cal. 315) in which also the girl in, question was below the age of 16. and had gone away willingly with the accused. The accused in this case‑ had been sentenced by the Sessions Court to four years rigorous imprisonment. It was held by a Bench of that High Court that‑

"the sentence of four years rigorous imprisonment was exces sive and the sentence of twelve months already undergone was sufficient, as it was not a case of a woman being forcibly compelled or unlawfully induced to leave her home for the purpose of illicit intercourse."

Mr. M. Haleem appearing on behalf of the State in this matter has also submitted that the sentence of seven years' rigorous imprisonment is not called for and should be reduced. In these circumstances, therefore, while upholding the conviction of they appellant under section 366, P.P. C. I would reduce the sentence imposed upon him to three years' rigorous imprisonment.

K. B. A.

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