1985 PLP 1032 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This jail petition for leave to appeal is directed against judgment dated 27th October, 1981 of the Lahore High Court; whereby petitioner's appeal against conviction and sentence of death in a case under section 364‑A, P.P.C., was dismissed. The prosecution case as contained in the statement of Mst. Tasneem Hafeez P.W. who is also the victim is as follows:‑‑ "At about 8.00 p.m. I alongwith my brother Majid Hafiz went out to fetch Pan from the shop of Rafique Pan Wala. My mother had sent me to fetch the Pan. I purchased Pan from Rafique Pan Wala, and put the same in the Dabbi. Then, we both started towards house. We had gone only few paces from the Rafique Pan Wala's shop, when the accused, present before the Court, caught from my arm and asked me to accompany him. On my refusal, he put his hand on my mouth and forcibly carried me in his arms. My brother while crying started for our house. The accused then ran while carrying me in his hand arm and had gone upto the clinic of Begum Dr. Usmani and then he turned into a lane at the end of which there was ,a mosque. He then returned while carrying me in his arm and when he came on the main road, my father and two other persons came there, and they apprehended the accused. My mother meanwhile had also reached there. My father then took me and the accused present before the Court to a Police Station Kootvali, two other persons also accompanied us." The above reproduced deposition was supported in material particulars by other witnesses including Rana Abdul Hafiz father of the minor girl. Amongst items of evidence, the recovery of Chappal P.3 belonging to the petitioner made by the police was also led against the petitioner at the trial. In face of the evidence of abduction as also recovery of the victim from the petitioner together with the recoveries his plea was of denial with an explanation that "Rana Abdul Hafiz is an associate of the Police and involved me in cases and in order to seek the favour of Police and further to obtain reward, he had deposed falsely against me and also made the witnesses available to the police for that purpose." At the end in answer to question No.10 he also made the following statement: "The police involved me in the kidnapping and murder of a girl from Bhabra Bazar, which allegedly took place on 16‑3‑1974 and I have been acquitted by the learned Additional Sessions Judge, I, Rawalpindi in that case. In order to strengthen the said murder case before the Senior Police Officer, the City Inspector, fabricated the instant case against me and for that purpose he sought the assistance of S. H.0. 'D' Division and the complainant." The evidence was found enough by both the learned Courts for rendering a finding of guilty under section 364‑A, P.P.C. which reads as follows: ‑ "364‑A. Kidnapping or abducting a person under the age of ten.‑‑Whoever kidnaps or abducts any person under the age of ten, in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years." Learned counsel in support of this petition for leave to appeal has, inter alia, contended that there is not enough evidence to show that the age of Mst. Tasneem Hafeez was not more than 10 years which is a condition precedent for conviction under section 364‑A. And further that there is no indication in the evidence as to which of several intentions mentioned in section. 364‑A could be presumed in the circumstances of this case. He has pointed out that the case of the prosecution before the police was that the petitioner asked Mst. Tasneem Hafeez to look after his Chappals while he wanted to wash his hands in the mosque and when he went in the mosque Mst. Tasneem Hafeez fled away with the pair of Chappals and that the same was then recovered by the police through a properly drawn out memo. of recovery. This entire aspect of the case has been withheld from the Court by the prosecution. According to the learned counsel two questions would arise in this behalf: One, whether the petitioner had any of the intentions mentioned in 364‑A, P.P.C. if none, is he not entitled to acquittal in the charge under section 364‑A , P. P. C . Two, if it is possible to determine any particular intention mentioned in section 364‑A, C.P.C. whether one or the other intention will not make difference regarding the sentence. After hearing the learned counsel we consider it a fit case for re‑examination of evidence as also to consider the question of sentence. Accordingly while condoning the delay in filing the petition leave to appeal is granted. M.I. Leave granted.