P L D 1960 (W (PLP)

2. The facts of the case are briefly as follows:‑

About thirty years ago, Mst. Sattan (P. W. 2) was married to. Malla and in exchange Mst. Fateh, sister of Malla, was given to Raju (P. W. 1) uncle of Mst. Sattan. About sixteen years ago Raju (P. W. 1) suspecting the fidelity of Mst. Fateh, murdered her, and was sentenced to life imprisonment, but was released under the amnesty on the Independence Day, 1947, after serving only seven years of imprisonment. On account of the murder of Mst. Fateh, Mst. Sattan P. W. apprehended danger to her life at the hands of her husband and others and she deserted the house of her husband and came to live with her father Rehman. About four months before the occurrence, Rahman died and she moved to the house of Raju P. W. her uncle. Ahmad and Muhammad accused are' the sons of Mst. Sattan by Malla and Nura son of Haku is the brother of Malla. At the time of this occurrence Ahmad accused was aged eighteen and Muhammad was only seventeen years of age. About ten days before the occurrence Malla, husband of Mst: Sattan accompanied by Nura his brother and his sons Muhammad and Ahmad came to Mst. Sattan and asked her to accompany them to his house. She, however, refused to comply with their wishes.

3. On the night between the 12th and 13th of April 1958, Ahmad, Muhammad and Nura armed with dangs entered into the house of Raju P. W., got hold of Mst. Sattan and dragged her out of the house, and with the help of Nazir, Sardara, Amir, Nura son of Sajawala, Shah Beg and Yara, who were standing outside the house, tried to place her on the back of a mare. She and Raju P. W. raised an alarm which attracted Muhammad Chaukidar (P. W. 3) and Muhammad (P. W. 5) and several others. Nazir, Amir, and Nura son of Sajawala, who were armed with guns, opened fire, as a result of which Muhammad (P. W. 5) was injured. Muhammad, Ahmad and Nura son of Haku gave beating to Mst. Sattan, and Raju P. W. was beaten by Sardara, Shah Beg and Yara accused. Because of the arrival of the villagers on the scene of occurrence the culprits were forced to retreat leaving behind Mst. Sattan. Raju P. W. then lodged the report (Exh. P. A.) with the police, who after investigation, challaned the nine accused named above.

4. From the medical evidence it transpires that Mst. Sattan had received sixteen injuries out of which injury No. 5 was declared grievous on account of the fracture of the third right metacarpal bone. The rest of the injuries were all simple. Raju P. W. had four simple injuries and Muhammad (P. W. 5) had four gunshot injuries on‑ his person. One of these injuries was on the outer side of the left buttock, two were on the lower part of the left thigh ‑and one was on the front of right knee.

5. At the trial, Raju (P. W. 1); Mst. Sattan (P. W. 2) and Muhammad Chaukidar (P. W. 3) supported the prosecution version narrated above in all its details. Muhammad (P. W. 5), however, did not support the prosecution case and was declared hostile at the instance of the Prosecuting Sub‑Inspector and was cross‑examined. He stated that none of the accused had taken part in the crime. Nazir Accused pleaded alibi and produced Ghulam Abbas Lali, a Rais of the Ilaqa, in support of his alibi. The trial Magistrate believed the evidence of Ghulam Abbas Lali and gave the benefit of the doubt to Nazir accused and acquitted him. He, however, convicted and sentenced the NU remaining accused as stated above.

6. The learned Additional Sessions Judge held that on the finding of the learned Magistrate, Nazir accused was quite innocent and, therefore, the question of giving the benefit of doubt did not arise in his case and since an innocent man was implicated by the eye‑witnesses, so their evidence required corro?boration before it could be acted upon. Holding that there was no corroboration as against Sardara, Amir, Nura son of Sajawala, Shah Beg and Yara accused he acquitted them. As against Ahmad, Muhammad and Nura son of Haku he held that they had the motive to commit the crime and had visited the house of Raju (P. W. 1) a few days before the occurrence in a Panchayat, and as such he came to the conclusion that the evidence of the eye‑witnesses was corroborated in respect of these accused. He, however, held that these accused at the time of abducting Mst. Sattan had no intention of forcing her to have illicit sexual intercourse with any person; nor did they have the intention. of murdering her. He accordingly altered their conviction from section 364, P. P. C. to section 365, P. P. C. He maintained their conviction under section 307, P. P. C., but did not refer to section 149, P. P. C. at all in this connection. Presumably he maintained their conviction under section .307, P. P. C. without the aid of section 149, P. P. C.

7. I have carefully gone through the evidence on the record and I agree with the finding of the learned Additional Sessions Judge that the petitioner Nura son of Haku and his two nephews, Muhammad and Ahmad, had participated in the crime. I see no reason to doubt the statement of Mst. Sattan in this connection. She is the mother of Muhammad and Ahmad, and Nura sort of Haku, is the brother of her husband.

8. The question, however, which requires to be determined, is whether the conviction of Nura son of Haku and his two nephews is sustainable under sections 365 and 307, P. P. C. As regards the conviction under section 365 P. P. C. the learned Additional Sessions Judge gave his finding as follows:‑-- "To me it is clear that the intention was to force her to live in the house of her husband against her will and desire, notwithstanding the liberty which the law of the land has given to her. The offence therefore falls under section 365 and not under section 364 of the Pakistan Penal Code." I am clearly of the opinion that on this finding these three accused could not have been convicted under section 365, P. P. C. One of the essential elements of an offence under section 365 is that the kidnapping or abduction of any person must be with intent to cause that person to be secretly and wrongfully confined, The learned Additional Sessions Judge has given no finding, hat the accused had the intention of secretly confining Mst. Sattan. On the state of evidence on the record, it is difficult to give such a finding with certainty. I think the finding of the learned Additional Sessions Judge is correct in so far that'‑the intention of the accused was to forcibly take Mst. Sattan to the house of her husband and to compel her to live there against her will, but this in my opinion does not constitute an offence under section 365, P. P. C. Abduction by itself is not punishable under the Penal Code. It is made punishable only if it is done with one or other of the intents specified in sections 364, 365, 366, 367 and 369 of the Penal Code. As one of the essential elements of the offence under section 365, P. P. C. has not been established the conviction of Nura son of Haku, Muhammad and Ahmad accused for that offence cannot be allowed to stand. I accordingly set aside their conviction and sentence under section 365, P. P. C. Muhammad and Ahmad accused have not filed any revision petition, but as the record of the case is before me I have set aside their conviction and sentence in the exercise of the revisional jurisdiction under section 439 of the Code of Criminal Procedure.

9. As regards their conviction under section 307, P. P. C. I am afraid that it is not possible to maintain this conviction. either. Having set aside their conviction under section 307, P. P. C. read with section 149, P. P. C. the learned Additional Sessions Judge could have convicted them for the substantive offence under section 307, P. P. C. only if these three accused had been proved to have committed an act with such intention or knowledge and under such circumstances that if by that act they had caused the death, they would have been guilty of murder. As the record stands the only allegation against these three accused was that they had caused injuries to Mst. Sattan P. W. with their dangs. Mst. Sattan no doubt received sixteen injuries at the hands of these accused, but out of these injuries, only one was grievous on account of the fracture of the metacarpal bone and the rest were simple. The learned Additional Sessions Judge himself found that the accused did not have the intention of murdering her and I readily agree with this finding. Under the circumstances, it cannot be held that these three accused had attempted to murder Mst. Sattan. But as some of the culprits are said to have fired their guns, these three accused could have been convicted under section 307 read with section 149, P. P. C. if the learned Additional Sessions Judge had reached the conclusion that five or more than five persons had participated in the crime and had attempted to murder the P. Ws. He has not given any such finding. Moreover as six out of the nine accused named by the eye‑witnesses at the trial have been acquitted, Nura son of Haku, Muhammad and Ahmad accused are entitled to have it found, in determining their case, that the acquitted persons were not there. In this view of the matter section 149, P. P. C. could have no application to such a case. Besides, the learned Additional Sessions Judge has impliedly acquitted Nura, Muhammad and Ahmad accused of the offence under section 307 read with section 149, P. P. C. He has, however, convicted them for the substantive offence under section 307, P. P. C. As I have already pointed out these three accused are not alleged to have committed any act which could bring their case within the purview of section 307, P. P. C. Even otherwise I am not satisfied that the culprits had fired their guns with the intention of killing anyone. All the gunshot injuries on Muhammad (P. W. 5) were simple and were not on any vital part of the body. I think the intention of the culprits in firing their guns was merely to scare away the villagers and no more. I am, therefore, constrained to set aside their con?viction and sentence under section 307, P. P. C. These accused, however, are clearly liable for causing injuries to Mst. Sattan. I have no doubt that in furtherance of their common intention, they caused as many as sixteen injuries including one grievous injury to her. I accordingly convict them under section 325 read with section 34, P. P. C. and sentence Nura son of Haku accused to eighteen months' rigorous imprisonment. In all probability Muhammad and Ahmad accused had acted under the influence of their elders. They have by now undergone fourteen months' rigorous imprisonment: I think the sentence already undergone by these two accused is sufficient to meet the ends of justice. I accordingly reduce their sentence to the period of imprisonment already undergone by them. They shall be set at liberty forthwith. K.B.A.???????????????????????????????????????????????????????????????????????????????????? Appeal partly accepted.