1992 P Cr (PLP)

11. In view of the contentions raised above, it shall be pertinent to deal with section 364, P.P.C. under which the offence charged with and the conviction of the appellant has taken place,‑ and against which the present appeal is directed. Section 364,P.P.C. is as. follows:‑‑ "Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine." The bare reading of the section makes it clear that the offence under the subsection shall take place:‑ (a) when a person is kidnapped or abducted in order; (b) that such person may be murdered; (c) or may be so disposed of as to be put in danger. As stated earlier, the abduction as defined in section 362, P:P.C. is when a person is by force compelled or by any deceitful means induced to go from any place. Therefore, in the first instance, to establish the offence under section' 364, P.P.C. it shall be essential to prove that:‑‑ (a) abduction has taken place and it was either by force compelled or by deceitful means induced, and thereafter it will have to be established beyond reasonable doubt that person kidnapped or abducted was for the reason:‑ (a) to be murdered; and (b) to be so disposed of as to be put in danger of being murdered. Therefore, in the present case, it has to be seen whether the ingredients essential, firstly for establishing that "abduction" has taken place on the basis of the evidence, and secondly whether or not such abduction was for the purpose of the abductee to be murdered or to be so disposed of as to be put in danger of being murdered. In this respect this is fact, the evidence to be taken into consideration, and on the basis of which the conviction of the appellant has been based is provided by the testimony of P.W. 3 Waryam, P.W. 4 Sarang, P.W.5 Allah Yar, P.W. 6 Mst. Musarrat and P.W. 9 Ahmed Ali.

12. It shall be pertinent, once again, to point out here that as the appellant alongwith his co‑accused was acquitted of the charge of murder, therefore, the evidence in respect of the said offence is not relevant, and it shall riot be referred to in any manner, specially as the State did not file an appeal against the acquittal of the appellant and his co‑accused under section 302, P.P.C. nor a Criminal Revision has been filed by the complainant in this, respect.

13. The prosecution witnesses, named above, have deposed only in respect of the appellant:‑‑ (a) that the appellant had come to the house of the abductee to take him away so as to purchase a camel; (b) and in respect of motive; The motive is stated to be the reason of the appellant carrying on illicit relationship with the sister of the abductee on the one hand, and the abductee having illicit relationship with the sister of the appellant on the other hand and that the abductee was not willing to give the hand of his sister in marriage to the appellant unless the appellant gave his sister in marriage to the abductee and that the abductee was still carrying on illicit relationship with the sister of the appellant in spite of that the appellant had married her to his acquitted co‑accused, Akhtar Malhi.

14. In respect of the motive the prosecution witnesses have stated as follows:‑ "P.W.3, Waryam son of Sultan; has stated that the appellant has asked for the hand of the sister of the abductee, Muhammad Ali, and had been trying for the same for 2/3 years and that the abductee was' willing to do so if the appellant gave his sister, Mst. Shehnaz Akhtar in marriage to him, and that the appellant had married his sister to Akhtar Malhi but in spite of that the abductee used to visit her in her in‑laws. P.W.4, Sarang son of Pathana, stated to the same effect with the further addition that 2/3 years back the appellant alongwith one Abdur Razzaq and Akhtar MAW accused had gone to the house of one Muhammad Hayat, brother‑in‑law of Muhammad Ali abductee in village Lalian and had taken up the hand of Mst. Musarrat, the sister of the abductee, Muhammad Ali, for the appellant, and that the said Muhammad Hayat had told them that Muhammad Ali abductee wanted marriage in exchange. P.W.5, Allah Yar son of Pathana also stated to the same effect as P.W.3 stated above. P.W.6, Mst. Musarrat, also stated to the same effect except that she did not admit to carrying on illicit relationship with the appellant and furthermore conceded during cross‑examination that she was not present at the time when her hand in marriage was asked for by the appellant nor was she present in the house of Muhammad Hayat when the appellant approached him for her hand in marriage, and she further conceded that she has never visited the Chak of Mst. Shehnaz, the sister of the appellant, whenever her brother went to the said Chak to visit Mst: Shehnaz. P.W.9, Ahmed Ali son of Sultan did not state anything in respect of the motive alleged in his examination‑in‑chief but during the cross examination he stated that he had stated before the police that the abductee had told Riaz appellant that he will give his sister in marriage to him in case the appellant gave his own sister in marriage to the abductee, Muhammad Ali, but on being confronted with the Exh.D.C., it was established that he has not stated anything to that effect." As is clear from the above, P.W. 6 Mst. Musarrat, did not support the version of the prosecution in respect of the appellant having illicit relationship with her that her testimony in respect of the abductee carrying on illicit relationship with Mst. Shehnaz, the sister of the appellant, was based on hearsay, and that the same was the case in respect of the appellant etc. having asked for her hand in marriage from Muhammad Hayat, as she, was not present at the said time, and secondly, that neither Mst. Shehnaz has been produced to establish that the abductee was carrying on illicit relationship with her nor has Muhammad Hayat been produced to prove that the appellant etc. had approached him for the hand in marriage of Mst. Musarrat or that the abductee, Muhammad Ali, had asked for Mst. Shehnaz as a condition thereof. Therefore, the evidence in respect of the motive alleged is discrepant and contradictory, and furthermore all the P.Ws. being related inter se, and all they have done is to make a bald statement in respect of the motive alleged without providing concrete details, corroboration and confirmation of the same by the production of the necessary and essential witnesses, namely Mst. Shehnaz and Hayat or by other independent testimony, and the only relevant witness produced in this respect, i.e. Mst. Musarrat, has not supported the prosecution version in her own case, and as regard to the abductee carrying on illicitly with Mst. Shehnaz, her evidence is based on hearsay, as pointed out earlier, the prosecution has failed‑to prove the motive as alleged, as being the basis of enmity leading to the commission of crime in question. And as pointed out by the learned counsel for the appellant, not an iota of evidence has been produced to prove that the abductee, Muhammad Ali was ever in danger of being murdered or that he was to so disposed of as to be put in danger of being so murdered to prove the charge, the prosecution had to establish by evidence that the abductee was put in danger of being murdered.

15. In pursuance to the above discussion, it is hereby held that the prosecution has failed to prove its case against the appellant, hence the present criminal appeal is allowed and the impugned judgment is hereby set aside. Consequently, the appellant stands acquitted of the offence charged. He is on hail, his bail bonds stand discharged. N.H.Q./R‑9/L Appeal accepted.