1989SCMR 182 (PLP)

‑‑‑Ss. 364‑A & 377‑‑Constitution of Pakistan (1973), Art. 203‑F‑‑Leave to appeal‑‑Granted in a connected case‑‑Effect of‑‑Conviction under Ss. 364‑A & 377, P.P.C.‑‑On appeal conviction under S. 364‑A, P.P.C. set aside‑‑Order impugned both by complainant and convict‑‑Since leave was granted to complainant to examine whether accused could be considered guilty of kidnapping, leave to appeal also granted in connected case to convict‑petitioner‑ Matters ordered to be heard together. S.M. Masood, Advocate Supreme; Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner (in Cr.P. No. 24‑R(S) of 1988). Shahid Hussain Qadri, Advocate Supreme Court and Muhammad Aslam Ch., Advocate‑on‑Record for Respondent (in Cr. P. No. 24‑R (S) of 1988). Ch. Sarfraz Ahmad, Advocate Supreme Court for the State (in Cr.P. 24‑R(S) of 1988). Nemo for the State (in Cr.P. 46‑R(S) of 1988) Date of hearing: 2nd August, 1988. NASIM HASAN SHAH, J.‑‑This order will dispose of these two petitions as they arise out of the same incident. The facts forming the background are that Hassan Ijaz aged 8 years and his brother Hussain Ijaz aged 6 years were going towards the village mosque together to take their lesson of the Holy Quran. Muhammad Nadeem met them on the way and he told Hassan Ijaz that he would give him a bat if he came with him. The younger brother, Hussain Ijaz, started following them but Muhammad Nadeem asked him to go away and slapped him to dissuade him from following them. However, he continued to follow the two surreptitiously. Muhammad Nadeem took Hassan Ijaz into his house and committed carnal intercourse with him. The younger brother rushed back and informed his uncle Dr. Jamshed Raza of the incident whereupon Jamshed Raza accompanied by one Abdul Haq hastened to the scene, opened the door forcibly and found the respondent committing sodomy on the child. Muhammad Nadeem was tried under sections 364‑A and 377, P.P.C. and the trial Court convicted him for both the said offences imposing the sentence of 7 years' R.I. for the former offence and 5 years' R.I. and a fine of Rs. 2,000 for the later offence. The Federal Shariat Court, on appeal, acquitted Muhammad Nadeem of the charge. under Section 364‑A, P.P.C. but maintained the conviction under Section 377, P.P.C. He, however, allowed the benefit of section 382‑B, Cr.P.C. in the matter of computation of sentence. Dr. Jamshed Raza has challenged the order of acquittal of Muhammad Nadeem under section 364‑A, P.P.C. by filing Criminal Petition No. 24‑R(S) of 1988 while Muhammad Nadeem has challenged his conviction and sentence under Section 377, P.P.C. by filing Criminal Petition No. 46‑R(S) of 1988. Both the petitions have been heard together. We are considering a somewhat similar question, to the question which arises in this case, namely, whether Muhammad Nadeem could be considered guilty of "kidnapping" Hassan Ijaz in the circumstances of the case in Criminal Petition No. 20‑R(S) of 1988 and leave has been granted in that case today. We would grant leave in this case also. This appeal will be heard alongwith the appeal arising from the appeal out of Criminal Petition No. 20‑R(S) of 1988: Leave is also granted in the connected matter, namely, Criminal Petition g No. 46‑R(S) of 1988 (Muhammad Nadeem v. The State). All these matters to come up for hearing together. M.I./J‑35/S Leave granted.