1986 PLP 1708 (MLD)

Mahboob Zaman v. State 1975 P Cr. L J 568 and Shakeel Ahmed v. The State P L D 1972 Lah. 374 ref. Muhammad Iqbal Bhatti for Appellant. S.D. Qureshi for State. Date of hearing: 2nd July 1986. Muhammad Latif son of Muhammad Din, aged26/27 26/27, stands convicted vide judgment dated 19‑5‑1985 of the Additional Sessions Judge, Lahore under section 364‑A, P.P.C. for the kidnapping of Abid Hussain (P.W.4) aged 9/10 years, and was sentenced to ten years rigorous imprisonment. The appeal of the convict is being disposed of by this judgment.

2. The occurrence took place on 17‑4‑1984 at 7‑30 a.m. within the area of Shahalam Market, Lahore at a distance of two furlongs from police station Mochi Gate, Lahore. F . I . R . (Exh . P . A) was lodged by Ahmad Hasan (P.W.3) father of Abid Husain P.W. on the same day at 8.25 a.m. and it was recorded by Bashir Ahmad S.I. (P.W.6) at the police station. In the F.I.R. it was stated that Ahmed Hasan P.W. had brought his son Abid Husain P.W. to his shop of shoe‑makers in Shahalam Market so that he could go to school. He left the boy to cross the street and to go to his school. But while he was on his way, the Appellant tried to forcibly take him away with him by insisting on the child that he was taking him to the school. However, on the alarm of the child he was apprehended by Muhammad Akbar (P.W.1) and Muhammad Asif (P.W.2) of the same Mohallah. Thereafter, Ahmpd Hasan P.W. also arrived and subsequently the child was taken to the police station alongwith the apprehended appellant by the P‑Ws.

3. The appellant was formally arrested when he was produced by the P.Ws. before Bashir Ahmad S.I. (P.W.6) on the same day.

4. The version of the appellant is that this was a false case got registered by Ahmed Hasan P.W. against his employee. The case of the appellant is that he was a shoemaker and was working in the factory of Ahmad Hasan P.W. Ahmad Hasan P.W. advanced him Rs.4,.000 which he was repaying on the basis of daily instalments of Rs.20 i.e. it was being deducted from his daily wages. However, Ahmad Hasan P.W. demanded the amount back from him which he could not pay and as a result he got him involved in this false case. He also produced some shopkeepers as D.Ws. in his defence in support of the plea that he had received an advance from Ahmad Hasan P.W. which he was paying back. None of these D.Ws had appeared before the police.

5. I have heard learned counsel for the appellant and perused the record. The prosecution story is supported by the version of. Abid Husain P.W. who stated that while he was on his way ‑to school, the appellant told him that he would take him to the school and that he was his uncle, On the alarm of the child Muhammad Akbar (P.W.1) and Muhammad Asif (P.W.2) appeared on the scene and they did not believe the appellant when he stated that he was uncle of the child. The appellant insisted that he was uncle of this child and that the child was, his nephew. Eventually they apprehended the appellant and first took him to the shoo of his father where his father also joined them to the police station and in this way the case was registered against the appellant and he was formally arrested by Muhammad Akbar (P.W.1) and Muhammad Asif (P.W.2) are unconnected persons belonging to the Mohallah of .Ahmad. Hasan P.W. but there is nothing on the record to show that they had any enmity as against the appellant. Thus the prosecution case is being supported by the testimony of Muhammad Akbar. Muhammad Asif,, Abid Husain as r well as Ahmad Hasan P.Ws. The version of the defence although being) supported by two or three Q.Ws. but is not convincing. Learned counsel has argued before me that there is no transportation of the child in ~ the instant case from the place of kidnapping to some other town, He also submits that it is not clear from the record as to with what motive the child was being kidnapped by the appellant. It is submitted that there is no evidence on the record that the child was being taken to some other direction by the appellant than the direction where the school of the child lay. It was further submitted that in any case the defence version was the correct version and that since there was dispute between Ahmad Hasan P.W. father of the child and the appellant about the money which he had advanced to him, therefore, the appellant was falsely implicated in this case. I have considered the arguments o learned counsel but I am not inclined to accept these arguments in the light of the ocular testimony which is forthcoming in this case particularl of Muhammad Akbar and Muhammad Asif P.Ws. The suggestion was put to Ahmad Hasan P.W. that the appellant was his employee and that h had advanced. money to him but it had been denied. There is n cogent evidence in support of the defence version. However, learned counsel wants time to produce some authorities on the point as to what should be the quantum of punishment in a case of this nature and a to whether in the present case sentence of ten years rigorous imprisonment was more than sufficient to meet the ends of justice. Adjourned to 5 7‑1986. In continuation of my order dated 2‑7‑1986 learned counsel placed reliance on Mahboob Zaman v. State 1975 P Cr.L J 568 in which it was laid down that where antecedents of the accused were hot showing hi bad character or previous conviction then lifting of child with any intentions mentioned in section 364‑A, could not be made out. In that case conviction under section 364‑A, P.P.C. was altered to one section 363, P.P.C. and the sentence was reduced to 5 years R.I. Reliance was also placed on Shakeel Ahmed v. The State P L D 1972 Lah. 374 in which it was laid down that no presumption could be made about the intentions of an accused person in the absence of arty definite evidence for bringing home the offence under section 364‑A, P.P.C. On the basis of these authorities it is contended by learned counsel that antecedents of the appellant were not to the effect that he was a bad character or that he was a previous convict. It is further submitted that there is nothing on the record to infer that the appellant had intentions of lifting the child for bringing home the offence under section 364‑A, P.P.C. Relying on these authorities I agree with learned counsel that nature of the offence in the instant case may be under section 363, P.P.C. Therefore, I alter the conviction of the appellant from section 364‑A P.P.C. to section 363, P.P.C. and reduce his sentence from ten years R.I. to five years R.I. The jail authorities will grant him the benefit of the provisions of section 382‑B, Cr.P.C. in computing his sentence of imprisonment. The appeal is accepted to this extent. S. A. Appeal dismissed.