Sentence reduced (PLP)

CORNELIUS, C. J.‑Muhammad Razzaq, aged 21 and Munir Ahmed, aged 19, who stand convicted under sections 363 and 377, P. P. C., were granted special leave to examine the question whether the conviction for kidnapping was on the facts correct. The story told is that on the 13th of March 1965, towards the evening, Iqbal, a boy aged 12 or 13 was going about in Wahid Park in Rawalpindi with the cousin Zulfiqar Ali, aged 15, when he was invited by Muhammad Razzaq and One Said Akbar to go to another park in the outskirts of the city known as Ayub Park. With Razzaq and Said Akbar were four other persons, namely, Munir Ahmed, Ayub, Nasibullah and Saif Alt. It seems that lqbal knew all these persons. No steps were taken to have them identified by him at any later stage. Brushing aside Iqbal's plea that he had no money, they put him into a taxi along with the two appellants and Ayub, and when they reached Ayub Park, he was taken into the jungle where Razzaq and Munir one after the other committed sodomy upon him. Razzaq used a knife when lqbal tried to resist. From Ayub Park, Iqbal was taken in a taxi by Said Akbar, Saif Ali and Munir to the Government Transport Service bus‑stop. The other accused persons, namely, Razzaq, Ayub and Nasibullah followed in another taxi. lqbal was taken from the bus‑stop to an Eidgah ground by the same persons, namely, Said Akbar, Saif Ali and Munir. At that place, Saif Ali and Munir parted from the group, but Said Akbar took him to a kothri and committed sodomy upon him. They remained there for the night and in the morning, Said Akbar took him to Gujar Khan and left him there in the house of one Abdul Ghani, and visited him there "once a week or a fortnight" and had un*tural intercourse with him. After about a month and three quarters at the request of the boy, he took him back to Rawalpindi where the Police caught them on the 5th May 1965. The report of the boy's disappearance was made to the Police without undue haste. Zulfiqar, who was with the boy when he was taken away to Ayub Park and said he had been threatened by Said Akbar when he tried to prevent Iqbal from going and further that the group took Iqbal away forcibly, also said that he reported this to Iqbal's mother at his house the same evening. Iqbal's father was away at Peshawar at the time. In relation to what had happened to the boy and who had taken him away, clues were furnished by two other persons, namely, Abdur Rashid;P. W. 4, who is maternal‑uncle of the boy and Abdur Rahim, P. W. 5, a member of his community. Both of them saw the boy in the: taxi with Razzaq, Munir, Nasibullah and Ayul that evening. They made out the faces although they gay it w4s about $ p.m., and it was getting dark. The next morning, they learnt that the boy had not returned home, and communicated what they knew to other persons. Abdur Rahim admitted that he gave the information to lqbal's mother. It may be assumed that Abdur Rashid being brother to Iqbal's mother did the same thing. The Police Station being at no great distance, there was no thing to prevent the making of a report immediately. The first report was, however, only made on the 17th March 1965 when the father Ghulam Qadir returned from Peshawar. Added to this circumstance is the fact discovered by the doctor who examined Iqbal, that the boy was a habitual catamite. In his statement to a Magistrate under section 164, Cr. P. C., and his earlier statement to the Police, he entirely omitted mention of the use of force towards him to induce him to go to Ayub Park, or in that Park. It is upon consideration of all these facts and circumstances, that the question of whether there was kidnapping from lawful guardianship committed by either of the appellants falls to be decided. The boy is a habitual catamite and is accustomed to A roaming about in parks. It can be confidently assumed that be knew the men with whom he went to Ayub Park. The plea of his having no money is ridiculous coming from a boy of 12, who was invited by persons much older than himself to go to visit another park. It seems false that any force was used for taking him to Ayub Park. The charge being one of kidnapping from lawful guardianship, it is necessary to fix the point at which the boy lost control over his own movements and became subject in that. respect to the authority of the alleged kidnappers. The offence under section 363, P. P. C., viz., kidnapping from lawful guardian ship is not a continuing offence. A minor is deemed always to be under lawful guardianship, within the freedoms which are allowed to him, e.g., such as he can be shown to be accustomed to practise. In the movement from one park to another, we are unable to find the necessary ingredients for holding that the boy was not a free person. Thus, for instance, if he had been left by the others in Ayub Park, it would not be, in our view, possible a to say that the persons responsible for taking him to Ayub Park were guilty of kidnapping him from lawful guardianship, since i would have been possible for the boy to return home the same evening. But when he was taken from Ayub Park to the bus‑stop that being a place from which movement was possible to a number of places outside Rawalpindi and since eventually he was taken outside Rawalpindi, an action may be seen of which the result was likely to be and eventually was that the boy would not of allowed to return home the same evening. At that stage, it would be possible to say that the boy was taken out of the lawful guardianship of his father. On the evidence of Iqbal alone, it has been held by the Courts below that he was subjected to sodomy by Munir and Razzaq and leave has not been granted to these two persons to challenge that conviction. Although a catamite is not among the most reliable of witnesses, the boy had no reason to name Munir and Razzaq rather than any others of the group of six men in this connection and therefore his evidence to that extent was worthy 'of acceptance. tie may also be believed for the same reason in respect of the persons he named who accompanied him on different journeys. Those who took him to the bus‑stop included the appellant Munir and to this extent the boy's evidence may be accepted. He stated that Razzaq was in another taxi, which followed the first taxi, to the bus‑stop, but that would not suffice to establish in Razzaq a control over the movement of the boy in the same sense as the control undoubtedly exercised by those who were with him in the same taxi. Therefore, it seems to us that on a correct evaluation of the facts, which can be held proved by the evidence in this case, Munir who was in the taxi with the boy up to the bus‑stop can be held to have joined in an action of which the plain intention was that the boy should not return to his home that evening. Munir was thus jointly responsible for taking him out of the lawful guardianship of his parents. But such a conclusion cannot be reached on the evidence with respect to Razzaq. On this view of the case, we dismiss the appeal of Munir, but we allow the appeal of Muhammad Razzaq against his conviction for the offence of kidnapping under section 363, P. P. C., and set aside the conviction and sentence on that charge. His conviction and sentence under section 377, P.P.C., will stand. A. H. Order accordingly.