P L D 1988 Supreme Court 147 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal is directed against judgment dated 10‑10‑1987 of the Punjab Special Court No.V, Multan; whereby the appellant was convicted for offence under section 364‑A, P . P. C . , and was sentenced to imprisonment for life. At the commencement of the hearing, learned counsel for the appellant raised an objection to the effect that despite his efforts he has not been able to find the relevant notification under section 1(3) of the Special Courts for Speedy Trials Act (No.XV) of 1987, whereby a date might have been fixed by the Provincial Government for enforcement of this law; nor, there is any order by the Provincial Government (on the Paper Book supplied to him) passed under subsection (1) of section 5 of the Act, entrusting the case for trial to the Special Court. In reply, learned Advocate‑General made a statement at the Bar that both these requirements were complied with. The learned counsel for the appellant thereafter did not press the point. The prosecution case as contained in the deposition of Muhammad Sabir P.W. who is also the complainant and father of the victim child Mst. Saira aged about 2 years, is as follows:‑ 'I am living at my present address for the last about 11 months. Before this I used to reside in Basti Boad Pur Dakhli Mauza Qutab Pur in the area of Police Station Mumtaz Abad, Multan. About 11 months back, when I was living in Basti Boad Pur I was present in my house at about noon time. My daughter Mst. Saira now aged about 21 years now present in Court was playing outside the house in the lane. After a short while, on hearing the cries of Mst. Saira from the lane, I rushed out of my house. I saw Rehman Gul accused present in Court (his name was disclosed by him after he was apprehended) had taken the girl Mst. Saira into his lap and had covered her by a jacket. Rehman Gul accused was taking Mst. 'Saira in the lane towards north. I chased the accused and also raised alarm. The accused had not yet reached near the shop of Haneef P.W. when Haneef P.W. and Umer Hayat P. W. were also attracted towards the accused. Within my view as well as Haneef and Umer Hayat P.Ws., when the accused saw us chasing him, he left my daughter Saira in the lane and started running. I, Muhammad Haneef and Umer Hayat P.Ws. chased the accused and apprehended him at the distance of.15 Karams from my house. The accused when apprehended, apologized from us and on our pressing to disclose as to why he has kidnapped the girl, he stated before us that he had kidnapped the girl in order to sell her. He also begged pardon. I alongwith Haneef and Umer 'Hayat P.Ws. took Rehman Gul accused towards Police Post Qutab Pur alongwith Mst. Saira my daugher and when we reached Basti Lateef Abad, Sub‑Inspector Chatta alongwith another Assistant Sub‑Inspector met us. I narrated the facts to him. He recorded my statement Exh.P.A. It was read over to me and I affixed my thumb‑impression in token of its correctness. Exh.P.A. has been read over to me in Court. It is the same which I made before the Sub‑Inspector. My daughter is also known as Saira alias Kaki.' Two other eye‑witnesses, namely, Muhammad Haneef and Umer Hayat P.Ws. fully supported the testimony of Muhammad Sabir. In addition to the testimony of the eye‑witnesses with regard to the A main occurrence, there is evidence of extra‑judicial confession made by the appellant wherein he admitted that 'he had committed the act for the purpose of selling the child'. There are two additional circumstances which further support the prosecution case: One, the appellant was armed with a chhura presumably with a view to use it if he had found an opportunity to do so; and two, he was apprehended at the spot almost red‑handed. Another circumstance, that when detected, the eye‑witnesses had found him concealing the child under, his jacket, can also be taken into account in order to discover the purpose for which he committed the act. Learned counsel for the appellant has raised three contentions: One, that the statements of the three eye‑witnesses with regard to the lifting of the child by the appellant and her concealment by him under the jacket should not be believed because their statements are discrepant on some points; particularly, regarding the place where the child was lifted, the place where she was thrown on the ground; and the sequence in which each one of the eye‑witnesses saw him passing in front of the shop of Muhammad Haneef P.W. Secondly, he urged that none of the eye‑witnesses is reliable because they failed to satisfactorily explain their individual presence at the time and place when they saw the occurrence. Precisely, the criticism is that each one of them in his normal course of daily business, should have been at other place. Thirdly, he contended that even if it is accepted that the appellant committed the act of lifting the child and running away when concealing her under his jacket, he should be held to have committed the offence of kidnap simpliciter punishable under section 363, P.P.C. and not the offence under section 364‑A, P.P.C.; because the requirement, that the kidnapping or abduction should be in order to commit murder, cause grievous hurt, subject the victim, to slavery, or to lust or be disposed of in such a manner as to be subject to any such harm as provided by section 364‑A, P.P. C. , is not satisfied in this case. The learned Special Judge dealt with the discrepancies pointed out by the learned counsel and observed as follows: "All of them are unanimous that the accused had kidnapped Mst. Saira and that the accused had been apprehended in the lane where the shop of Muhammad Hanif is situated. The contradiction pointed out by the learned defence counsel relates to the exact place of apprehension of the accused. The witnesses have appeared in Court after about a year of the occurrence and such type of minor contradictions are apt to appear in straightforward witnesses. The parrot like narration of facts with mathematical precision has never been taken as trust worthy and reliable evidence." We with the help of the learned counsel read the depositions of all the three eye‑witnesses. He is right that there are discrepancies on the points mentioned by him but they in our view are natural result of perception and observation of same event by different persons. The element of discrepancies is also due to the difference in the assessment of direction and distance made by the witness, on the asking of the questions, in this behalf, during cross‑examination. This is also not something unusual. The observations made by the learned trial Judge regarding discrepancies cannot be considered as not attracted to the depositions in this case. We, therefore, do not find any substance in the first contention of the learned counsel and hold that no benefit can be given in this behalf to the appellant in so far as the commission of the act is concerned. It is more so when the eye‑witnesses admittedly are independent and disinterested. There was no reason why the appellant should have been falsely implicate by them if he had not lifted the child. He admitted his presence and tried to exonerate himself by raising an explanatory plea that he quarrelled with Muhammad Haneef P.W. shopkeeper on a petty matter; there was grappling between them; and, therefore, he and the other eye‑witnesses falsely implicated him. This, to say the least, is extraordinary explanation: firstly, there is not an iota on the record to support the plea that there was an altercation between the appellant and Muhammad Haneef; and secondly, even if it would have been so, there is no reason why Muhammad Sabir would have gone to the extent of accusing the appellant of the offence which is punishable with, death merely on the asking of Muhammad Haneef, (in whom he had no interest) and that too, on account of the alleged petty quarrel. Similarly, there was no reason for the third witness namely, Umer Hayat to falsely implicate the appellant. It is true that Muhammad Haneef was employed in a Mill and he normally should not have been at his shop on the day of occurrence, if he was performing his duty in normal routine. He has given a plausible explanation for his having discontinued the job with the Mill for sometime. Be that as it may, even if it is not accepted, the fact remains that even as an employee of the Mill, he could have been at the shop at the time of occurrence, though, it might have been also considered as an irregularity on his part and the Mill could have taken action against him for absence. But his absence from the Mill and presence at the shop is established beyond any doubt from the record as also from the admission of the appellant that Muhammad Haneef at the relevant time was running his shop and was present in the shop. That being so, there is no substance in the argument regarding Muhammad Haneef. The other two eye‑witnesses are labourers. The time of occurrence is such that they could have been working for gain somewhere else, but each one of them has given plausible explanation for being at the spot and if accepted on facts, the explanation could not be excluded on ground of any principle. The F.I.R. was lodged by Muhammad Sabir P.W., the father of the child at 2‑45 p.m.‑‑ the occurrence being of dupehrwella. If Sabir would not have been at the spot, as argued by the learned counsel, and would have been working as labourer elsewhere as suggested during cross‑examination, he could not have been at the same time be present so as to proceed to the Police Station alongwith the appellant. The recording of the F.I.R. by the Sub‑Inspector at the said time and at a place away from Sabir's house, supports the latter's assertion that he was present in his house when the occurrence took place and had not gone on work because he was not feeling well. Similarly, there is no reason to reject Umer Hayat's explanation that his sister was ill, therefore, he had not gone for work. Another minor point raised by the learned counsel that in addition to the eye‑witnesses examined at the trial, the neighbours and children in the street would have also seen the occurrence and that they were not examined as witnesses, is also without any force. Muhammad Haneef 'and Umer Hayat are such persons who can be described as neighbours, mentioned in the deposition of Muhammad Sabir. They were examined by the prosecution. It was not necessary to examine all the eye‑witnesses, who according to these witnesses saw the occurrence. They frankly admitted during cross‑examination that many people gathered at the spot and it can be safely presumed that some of them might have seen the whole or part of the occurrence. It is not a case where independent persons have not been examined as witnesses and/or those examined are in any way interested. Therefore, it was enough for the prosecution to examine three eye‑witnesses out of a large number of persons who might have seen the occurrence. It was further open to the defence to examine any other eye‑witness if it was thought that someone might belie the prosecution version. After hearing the learned counsel and going through the evidence, we are satisfied that the appellant has rightly been found guilty of kidnapping/abduction of Mst. Saira. His having been apprehended at the spot by three persons and having been found armed with a chhura also, in the circumstances of this case, lend strong support to this finding. The two conditions under section 364‑A, P.P.C. that the act of the accused should amount to kidnapping/ abduction and that the victim should be less than 10 years of age, are satisfied in this case. Learned counsel, however, tried to show that the appellant has not done so with any of the purposes mentioned in section 364‑A; namely, murder, grievous hurt or slavery, lust or otherwise disposal so as to put the victim to danger of any such harm, as is required by the said provision. He has, in this behalf, relied on Abdul Hafeez v. The State 1983 SCMR 1143. The case of Abdul Hafeez on its facts is clearly distinguishable. In the present case, even if it be assumed for the sake of argument that the appellant did not kidnap Mst. Saira the child of two years, for murder or .lust; yet, it cannot be ignored that on his own statement that he wanted to sell her, the purpose clearly was to subject her to slavery. In addition, it can also be assumed that such a child might also have been disposed of through sale for purpose of beggary and in that connection, she might have been put in danger of being subjected to grievous hurt. Slavery in the context of sale of child of two years would in such cases, have to be given the extended meaning of holding a person as property, commodity or object involving the concept of ownership. The child in this case, would have remained in the possession of the appellant as distinguished from custody. She had absolutely no power to resist her disposal by any of her act and/or even by will; and at the time of (or immediately after) the intended sale by the appellant, she would have remained in the same position of slavery. We, therefore, hold that the appellant was rightly convicted under section 364‑A, P.P.C I. There is no force in the appeal and the same is dismissed. M . B . A. /R‑32/S Appeal dismissed.