P L D 1960 Dacca 920 (PLP)

Salahuddin Ahmed, Dy. Legal Remembrancer for the State. ISPAHANI, C. J.‑This is a petition in revision filed by two of the accused who, along with two others, namely, Afa and Manta, were tried by Mr. A. A. H. Islam, a Magistrate, 1st Class, of Mymensingh, who convicted the petitioners under section 365 of the Pakistan Penal Code and sentenced each of them to rigorous imprisonment for two years and also to pay a fine of Rs. 500, in default, rigorous imprisonment for six months more each. Their appeal to the Sessions Judge, 2nd Court, Mymensingh, was dis missed on 27‑8‑

59. The other two accused who were convicted under section 363 of the Pakistan Penal Code are not before us.

2. It is the prosecution case that in the latter part of Aswin, 1362 B. S., Obaidul Huq, aged about 11/12 years, son of P. W. 2 Kazi Ansaruddin, came to Mymensingh from Netrakona at the instance of his class mate Abdul Awal. Obaidul Huq halted in a hotel for the night. Next morning he came to the railway station to return to Netrakona, because his friend had not arrived. It is said that the other two accused Afa and Manta came to Obaidul Huq at the railway station and got friendly with him. He was forcibly taken away to the house of one Tamir in village Rampur and they detained him there for 3/4 days. The accused persons along with others used to take him to the open field at night and he was asked to sing and, when he refused to do so, was beaten. They also committed unnatural sexual offence with Obaidul Huq. The accused Manta sold Obaidul Huq to Lokey and Abdul Mazid for Rs. 60 and they detained himfor 2/3 days. Lokey sold Obaidul Huq to the petitioners Nausher and Sekandar for Rs. 100 and they detained him for 3/4 days. They in their turn sold Obaidul Huq to Alta, Abbas, Zikar Bap, Pakhiar Bap, and Tikar Bap for Rs.

100. It is said that one day while Obaidul Huq was with the petitioners in a cow‑shed some men of Aultia including one Hasan came armed with lathis and rescued him and took him to their house and handed him over to the police. The police after investigation submitted charge‑sheet against 15 persons.

3. The defence was that, at the instance of Hasan and Alimuddin, Obaidul Huq had brought this false case against the accused.

4. Mr. Abdul Latif Biswas, who has appeared on behalf of the petitioners, has urged only one ground before us which is ground No. 1 in the petition to the effect that the order of convic tion and sentence is illegal and bad in law in view of the fact that kidnapping is not a continuing offence and the offence is completed as soon as the minor is removed out of th6custody of his or her lawful guardian. He argued that in the present case the prosecu tion story is that Obaidul Huq was kidnapped by Afa and Manta who removed and kept him in the house of one Tamir and they in their turn sold Obaidul Huq to Lokey and Mazid who after detaining him for` 3/4 days sold him to the petitioners. His contention is that the offence of kidnapping of Obaidul Huq was complete as soon as Manta and Afa had removed Obaidul Huq out of the custody of the lawful guardian and the offence of kidnapping not being a continuing, offence the petitioners are not guilty of kidnapping.

5. In Rakhal Nikari v. Queen‑Empress (2CWN811), it was held that the offence of kidnapping a person is complete when he is actually taken out of the custody of the lawful guardian. In Nemai Chattoraj v. Queen‑Empress (ILR27Ca1.1041(F.B.)), it was held that the offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship ; it is not an offence continuing so long as the guardian is kept oat of such guardian ship. In Durga Das and another v. The Emperor of India (1 Cr. L J 949), it was held that kidnapping was not a continuing offence. Lastly, in Emperor v. Abdul Rahman (I L R 38 All. 664), it was held that the offence of kidnapping is completed the moment a girl under sixteen years of age is taken out of the custody of her lawful guardian and is not an offence continuing as long as the minor is kept out of such guardianship. Thus the legal position is clear that kidnapping out of the custody of the lawful guardian is not a continuing offence. In the present case, Obaidul Huq was kidnapped from the railway station by the accused Afa and Manta and, even if it be assumed that he was in constructive custody of his lawful guardian, the custody of his lawful guardian came to an end as soon as he was removed from the railway station by Afa and Manta. Therefore, if Obaidul Huq was sold by one person to another, as the evidence shows, it cannot be held that the other persons who came to possess him are guilty of kidnapping him from lawful guardianship. In the present case, the petitioners purchased Obaidul Huq from Lokey and Majid by which time the custody of his lawful guardian bad ceased. In these circumstances the petitioners cannot be convicted for kidnapping under section 365 of the Pakistan Penal Code.

6. The learned Deputy Legal Remembrancer, however, argued that the petitioners though not guilty of kidnapping must be deemed to have committed an offence, at any rate, punishable under section 341 of the Pakistan Penal Code, which deals with wrongful restraint, by keeping Obaidul Huq, with them. We find that the petitioners wrongfully restrained Obaidul Huq from going back to his lawful guardian. In these circumstances, they have committed an offence punishable under section 341 of the Pakistan Penal Code. Thus the conviction of the petitioners and the sentence passed under section 365 of the Pakistan Penal Code are set aside and their conviction is altered to one under section 341 of the Pakistan Penal Code. They are sentenced to suffer simple imprisonment for one month. We are told that the petitioners are in hajat for more than one month. In these circumstances, we direct that they be released from jail. The Rule is disposed of in the above terms. SATTAR, J.‑I agree with my lord the Chief Justice. R. B. A. Order accordingly.