P L D 1962 (W (PLP)

From the above evidence, and specially from the evidence of Mst. Rubab who has favoured the appellant, it is clear that it was the appellant who took her away. P. W. 7, Ghulam Haider, Head constable, stated that he had recovered Mst. Rubab on 21‑4‑1961 from quarter No. 244‑C, Korangi Colony. The door of the house was closed from inside. When it was opened it was found that the appellant and the girl Mere sitting together and were secured. The corroborating Mashir nama is Exh.,7/1. P. W. 9, Abdul Rashid is the Mashir of the recovery. He stated that on 21st April 1961 in the evening Mst. Rubab was secured from the house of Riazuddin and Abdul Hamid appellant was present in the house. The Mashir tried to help the appellant by stating that he had signed the Mashirnama (Exh. 7/1) the next day at the police station. This, however, is falsified by the Mashirnama itself which shows that the witness had signed it on 21‑4‑1961. With regard to the age of Mst. Rubab, her parents P. W. 1, Muhammad Hussain and P. W. 10 Mst. Sughra Bai, state that Mst. Rubab's age is about 14 years. She was born in India about one year before partition in 1946. P. W. 6 Major Hasan, Police Surgeon,, has testified from clinical examination of Mst. Rubab that she was about 14 years of age on 26th April 1961. Exh. 6/1 is the clinical report on which he has based his opinion. Major Hasan has also produced X‑ray report No. 6032 dated 26‑4‑61 where radio-logically also she is about 14 years of age. The appel lant or his advocate did at no time dispute the factum of her age and there was no cross‑examination whatsoever from Mst. Rubab's parents or from Major Hasan on the question of her age. P. W. 4, Dr. Nuzhat Aara Aziz examined Mst. Rubab on 22‑4‑1961 at 4 p.m. She found her hymen torn at 3 O'clock posi tion; it was found tender on touch and congested. According to Dr. Nuzhat rape had been committed on Rubab four days before she was examined. The prosecution case is that the girl was kidnapped on the 18th April. The police had secured the trousers, article 1, which Mst. Rubab was wearing at the time she was secured with the appellant under Mashirnama Exh. 12/2. The police had also secured the pans, article 2, from the appellant which lie was wearing at the time he was secured under Mashirnama Exh. 12/1. Similarly the blanket, article 3, was found in the room from which Mst. Rubab and the appellant were secured, which was also secured under Mashirnama Exh. 12/3. All these articles, according to the Chemical Analyser's report (Exh. 12/4), had marks of semen on them. This evidence corroborates the evidence of Dr. Nuzhat and proves beyond doubt that Mst. Rubab was the subject‑matter of illicit intercourse. A number of rulings was produced before me viz. : Nura and others v. Rex (A I R 1949 All. 710) ; Emperor v. Ramchander (A I R 1914 All. 376) ; Jafar Shah and another v. Emperor (23 Cr. L J 716) ; Lachi Rom and Dall v. The Crown (A I R 1923 Lah. 330) and Ewaz Ali and others v. Emperor (30 I C 647: I L R 37 All, 624). The burden of these rulings is that where a minor girl leaves the houses of her guardian without any persuasion, inducement or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, he cannot be deemed to have infringed the law, even if he does not restore her to her lawful guardian. These rulings, however, do not apply to the facts of the present case. In the present case the proved facts are that Mst. Rubab was sent by her mother to the Irani Hotel in Saddar to fetch certain things. According to her own testimony, Mst. Rubab said that the appel lant was also there. She said that the appellant did not tell her anything but she had gone with her own accord. She says that she told him to take her away and that the appellant then took her to Korangi. The question is whether on this statement of Mst. Rubab an offence under section 366, P. P. C. is establish ed. Section 366, P. P. C. reads :‑ "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." The offence of kidnapping is defined under section 361, P. P. C., which reads:‑ "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guar dian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." In my view, on the evidence of the girl herself, the appellant did take her away with himself. Mst. Rubab was still under the guardianship of her parents when she was sent to the hotel where she met the appellant. Although the appellant did not induce her or tell her to go with him and although the girl says that she went with the appellant herself and that she told him to take her away; still the appellant did take her to Korangi in conse quence. The appellant, therefore, is liable as he took the girl away to Korangi. It is immaterial that he did so after the girl had requested him to do so. The offence lies in taking a minor from lawful guardianship. It would be still an offence if a person takes a minor at the minor's request as long as the minor is taken while she is yet in the keeping or custody of a lawful guardian. The nearest parallel case reported is In re, Khalandar Saheb (A I R 1955 Andhra 59). There we find the following remarks:‑ "(9) It is next to be considered whether the accused took the minor or enticed her to go with him. It is contended that the accused did not take her or entice her, but she voluntarily went with him. There is an essential distinction between the two words `take' and `entice'. The mental attitude of the minor is not of relevance in the case of taking. `The word `take' means to cause to go, to escort, or to get into possession. When the accused took the minor with him, whether she was willing or not, the fact of taking was complete and the condition was satisfied. The word `entice' involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless ‑the latter attempted to do a thing which she or he would not otherwise do. The juxtaposition of these two words makes it clear that the act of taking is complete (sic) when the accused takes her with him or accompanies her in the ordinary sense of the term, irrespective of her mental attitude. So, it is clear that, when the accused took the girl along with him, he was `taking' her out of the father's custody within the meaning of the section." I am in respectful agreement with the observations made above and I find that the appellant was rightly convicted for an offence under section 366, P. P. C. From what has been stated above, it is obvious that the offence is technical. The sentence of five years' R. I. is rather severe. Looking to the technical nature of the offence, the sentence passed against the appellant is reduced from five years to twelve months' R. I. With this modification, the appeal is dismissed. K. B. A. Sentence reduced.