1986 P Cr (PLP)

‑‑‑S. 342‑‑Wrongful confinement‑‑Conviction for‑‑Quantum of sentence‑ Abductee wrongly confined by accused in his house‑‑Quantum of sentence considered‑‑Case having protracted for nearly 12 years‑ Accused suffered a lot‑‑Accused remained in jail for about 3 months‑ Sentence awarded in relevant offence being 6 months R.I.‑‑Sentence already undergone was considered sufficient in circumstances.‑ [Sentence]. Fazlur Rehman Awan for Appellant. Abdul Waheed Siddiqui for the State. Date of hearing: 5th February, 1986. This appeal is from the judgment of VI Additional Sessions judge, Karachi, dated 17‑8‑1981 whereby the appellant was convicted under sections 383 and 342, P.P.C. and sentenced to R.I. for two years on first‑count and R.I. for six months on second count. The facts giving rise to this case are that on 15‑7‑1974 at about 1.00 p. m. Samina, a girl of 8 years age, was playing with children outside her house when the complainant Mat. Parsan, the grandmother of the said Samina and her daughter‑in‑law Met. Halima heard the noise of weeping of Samina. When they went outside they did not find her there. After some time they again heard the noise of her weeping, this time coming from inside the house of their neighbour Ghani. They went to his house the door of which was bolted from inside. They gave a knock at the door whereupon appellant Muhammad Ali son of Ghani opened the door. On seeing the two ladies, the appellant scaled over the wall of his house and ran away. The complainant and her daughter‑in‑law, however, found Samina weeping inside the house of Ghani. On inquiry the girl told them that she was feeling pain in her private parts as the accused after putting off her 'shalwar' had committed rape with her. Seeing he condition of the girl the complainant and her daughter‑in‑law rinsed cries which attracted a number of people of the locality. The complainant also sent for her son Allah Rakha, the father of the girt and thereafter she lodged F.I.R. at Police Station Baldia. The S.H.O. Saleh Muhammad Khan took up the investigation and ultimately the accused was sent up for trial. I have heard the arguments of the learned counsel for the parties and have also perused the relevant record. As is clear from the judgment of the trial Court, the charge of rape has not been proved against the appellant who has, however, been held guilty for kidnapping the victim girl Samina and wrongfully confining her and has been convicted under section 363/342, P.P.C. The findings of the trial Court to this effect appear to have been passed on the evidence of complainant Mst. Parson (P~W.1), Mst. Samina (P.W. 3), Ali Muhammad (P.W. 4) and Mst. Halima (P.W. 5). It is in the evidence of Mst. Parson that accused Muhammad Ali resides in their neighbourhood. She has deposed that on the day of occurrence at about 1.00 or 1.30 p. m. she and her daughter‑in-law Mst. Halima were in their house when Samina, a girl of about five years daughter of the complainant's son Allah Rakha was playing with children outside the house. She further states that they heard noise of the girl's weeping but when they went out to find out why she was weeping they did not see her there. According to her they again heard Samina weeping, but this time the noise was coming from the house of their neighbour Abdul Ghani, father of the accused Muhammad Ali. She states that the said house situates only five paces away from their house: According to her they went to the said house and knocked at the door whereupon the accused himself opened the door but on seeing them he scaled over the boundary wall of their house and succeeded in running away. Her statement further goes to show that they saw Samina in the 'Verandah' in the accused's house and on their inquiry she told them that while she was playing with the children the accused took her inside the house, removed her Shalwar and committed rape on her. Both the ladies, according to complainant's statement, found Samina bleeding from private part. She is supported by both Mst. Halima and Ali Muhammad. Ali Muhammad has deposed that he was attracted on the knocking of the door by complainant and Mst. Halima. It is proved from the evidence of complainant, Mst. Halima and Ali Muhammad that when the accused open the door of his house on the knocking made by the complainant and her daughter‑in‑law Mst. Halima, he on seeing them ran away by scaling over the boundary wall of his house. The said two ladies and Ali Muhammad who in the meantime had arrived on the knocking of the complainant, went inside the house and saw Samina in bad shape. However, their evidence about kidnapping of the girl which they learnt from the girl herself is not supported by the girl Samina who, as has been disclosed in the judgment of the trial Court, though summoned for giving evidence, could not be examined as she could not answer the questions put to her by the Court. Therefore, the charge of kidnapping is not proved. Even otherwise apart from the girl's solitary word, no one is shown to have seen the accused kidnapping Samina from outside the house of the complainant. In view of the above, the charge of kidnapping punishable under section 363, P.P.C. has not been proved against the accused and as such he is acquitted of that charge. However as has been pointed out above it has been established from the evidence of the complainant, Mst. Halima and Ali Muhammad that Samina was wrongfully confined by the accused in his house. This finding is not challenged even by the learned counsel for the appellant. The learned State Counsel also shares the same view. However, the learned counsel for the appellant prayed for reduction in sentence awarded in respect of offence under section 342, P.P.C. No doubt the accused has suffered a lot in every way on account of the case having protracted for nearly twelve years. It is not denied by the learned State Counsel that out of six months imprisonment awarded to accused under section 342, P.P.C., he has remained in jail in all for about three months. Furthermore the accused was youth of 18 years at the time of occurrence. For these considerations I agree with the learned counsel for the appellant that the sentence awarded to the accused calls for curtailment. Accordingly the sentence awarded to him under section 342, P.P.C. is reduced to the imprisonment he has already undergone. Subject to above modification in the conviction as well in the sentence the appeal is dismissed. S.A. Dismissed.