ABDUCTION

ABDUCTION AND KIDNAPPING

[Sections 363, 364 to 374, P.P.C. & Sections 552 Cr.P.C.]

Ss. 364-A, 376, 377, 302(b) & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---kidnapping or abducting a person under the age of fourteen, rape, sodomy, qatl-i-amd, causing disappearance of evidence of offence, act of terrorism---Death sentence, confirmation of---Accused allegedly kidnapped a minor girl, where after he subjected her to sodomy and rape, before murdering her---Accused was sentenced to death by the Trial Court, which sentence was upheld by the High Court---Crimes committed by the accused were absolutely horrendous and barbaric and the same had been committed with a minor and innocent girl aged about 7/8 years---Accused had not only deceitfully kidnapped the victim but also brutalized her by committing sodomy and rape with her and then ultimately killed her mercilessly---In his pleading guilty to the charge as well as in his statement recorded under S. 342, Cr.P.C. the accused had admitted committing similar offences with eight other minor victims and in such backdrop he did not deserve any sympathy in the matter of death sentence awarded to him---Petition for leave to appeal was dismissed in circumstances and leave was refused. 2018  SCMR  1372    

Ss. 2(1)(d)(iii), 104 & 130---Pakistan Army Act Rules, 1954, Rr. 23, 24, 35, 36, 37, 91, 95, 132 & 142---Constitution (Twenty-first Amendment) Act (I of 2015), Preamble---Members of a religiously motivated terrorist organization, attacking Armed Forces and civilians with deadly weapons, suicide bombers and improvised explosive devices (IEDs), causing death of Army personnel, kidnapping for ransom, providing assistance to terrorists to escape from jail---Conviction and sentence awarded by Field General Court Martial (FGCM)---Procedural fairness and correctness---[Per Sh. Azmat Saeed, J] Examination of the record revealed that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954---Accused persons, who were civilians, pleaded guilty to the charges, which were altered to not guilty by operation of the law to give them a fair opportunity of trial---Accused persons made judicial confessions before a Judicial Magistrate, which was proved in evidence by the said Judicial Magistrate, who appeared as a witness---Such confessions were never retracted by the accused persons---Charge was formally framed to which the accused persons pleaded guilty---Eye-witnesses of the occurrence were also produced---Prosecution witnesses made their statements on oath and were cross-examined by the defending officers---Opportunity to produce evidence in defence was given, which was declined by the accused persons---Accused persons were permitted to address the Court and make a statement, wherein they again admitted their guilt---In such circumstances, it could not be said that present cases were cases of no evidence or insufficient evidence nor was it possible to hold that the conclusions drawn by the FGCM were blatantly unreasonable or wholly improbable---Summary of evidence had been taken and was laid before the FGCM---Interpreters were appointed with the consent of the accused persons in terms of R. 91 of the Pakistan Army Act Rules, 1954---Nature of the offence for which the accused persons were charged and the possible sentence that would be awarded, were explained to them, and they were given an opportunity to prepare their defence and engage civil defence counsel, if they so desired---When the accused persons refused to exercise the option of engaging civil defence counsel, defending officers were appointed in terms of R. 81 of the Pakistan Army Act Rules, 1954---Accused persons were given an opportunity to object to the constitution of the FGCM and to the prosecutors as well as the defending officers, in terms of S. 104 of the Pakistan Army Act, 1952 and R. 35 of the Pakistan Army Act Rules, 1954---No objection, in such behalf, was raised---Members of the FGCM, the prosecutors, the defending officers and the interpreters were duly sworn in, as required by Rr. 36 & 37 of the Rules---Death sentences were passed, which were confirmed in accordance with S.130 of the Pakistan Army Act, 1952 and the appeals therefrom were dismissed by the competent authority---High Court and Supreme Court could not sit in appeal over the conclusions drawn by the FGCM or analyse the evidence produced before it---Provisions of the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 applicable to the trial of accused persons had not been violated---Even otherwise, the procedural defects, if any, would not vitiate the trial in view of R. 132 of the Pakistan Army Act Rules, 1954---Nature of the offence for which the accused persons were charged were exactly the "mischief" sought to be suppressed by the Constitution (Twenty-first Amendment) Act, 2015 and Pakistan Army (Amendment) Act, 2015---Selection of the cases of accused persons for trial by the FGCM reflected the due fulfilment of the mandate and purpose of the law    2017  SCMR  1249    

Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd, kidnapping for ransom and terrorism---Re-appraisal of evidence---Quantum of sentence---Determination---Expectancy of life, principle of---Applicability---Accused kidnapped young boy for ransom and to avoid risk of identification and capture, brutally murdered him---Death sentence awarded to accused by Trial Court was maintained by High Court---Accused raised the plea of expectancy of life to get death penalty converted into imprisonment for life---Validity---Period of time already served by convict under sentence of death was certainly one of the numerous factors to be taken into account, while confirming death sentence but it was neither the only nor decisive consideration---Tender age of minor, the brutal and heinous nature of crime and pre-mediation persuaded the Supreme Court to agree with sentence awarded by Trial Court as well as High Court---Deterrent aspect of sentence could not be lost sight of either, as it was a crime of kidnapping for ransom of minor followed by murder---Sentence of death was rightly awarded by Trial Court and the courts should not hesitate nor search for laboured pretexts to award lesser sentence---Appeal was dismissed . 2013  SCMR  1314    

S. 11---kidnapping , abducting or inducting woman to compel for marriage etc.---Failure of police to recover abductee despite directions of Supreme Court---Negligence of police---Negligent investigation---Alleged abductee was abducted and despite registration of case against accused persons, she could not be recovered---Accused persons challaned for the offence were acquitted by Trial Court---Appeal against acquittal of accused persons was also dismissed by High Court---Complainant filed criminal petition before Supreme Court, which was also dismissed , however during pendency of proceedings before Supreme Court about 30 directions were issued to police to recover the abductee, but no progress was made--- Police could not effect recovery of abductee despite lapse of six years and ultimately on account of personal efforts of brother of abductee, her whereabouts were traced---After her recovery abductee recorded her statement under S.164, Cr.P.C. alleging that a police official had abducted her and subjected her to sexual intercourse and ultimately forcibly got her married to his brother, and that she was also sold to some person---Reports submitted by police during pendency of proceedings before Supreme Court showed that they offered different excuses for not effecting recovery of abductee inasmuch as they tried to persuade the court that abductee had died and DNA test of a dead body after exhumation was also conducted, and at one stage it was alleged that after abduction she had been taken to a different province---Supreme Court directed concerned Senior Superintendent of Police to take necessary steps to conduct investigation of the case fairly and honestly, and to go through the progress reports submitted by police from time to time in compliance of orders of the Supreme Court for effecting recovery of abductee, and to submit a report pointing out the names of persons of police department, who had failed to discharge their duties.  2013  SCMR  1120    

 

S. 397---Penal Code (XLV of 1860), Ss.302/449/338-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Constitution of Pakistan, Art. 188---Qatl-e-amd, house-trespass in order to commit offence punishable with death, isqat-i-haml, kidnapping or abducting in order to subject person to unnatural lust---Review of Supreme Court judgment---Plea for concurrent running of sentences, dismissal of---Two different murders committed at different places---First F.I.R. was registered against accused for the murder of deceased, whom accused suspected of spreading the rumour that he (accused) had committed zina with his own daughter as a result of which she got pregnant and had to carry out an abortion---Second F.I.R. was registered against accused, an hour after the first one, for the murder of his own daughter, with whom he allegedly had developed illicit liaison and got her pregnant---Accused was convicted and sentenced for both the murders---Contentions of accused were that motive for both murders was same and they took place on the same day; that both murders were part of the same transaction, therefore, his sentences should run concurrently---Validity---Two different murders had been committed at two different places; one at the house of the deceased and second at accused's own house---Wife of accused appeared during trial to allege that the accused developed illicit liaison with his own daughter; that abortion of his daughter's pregnancy was carried out at his asking; that when the act became public he not only murdered the deceased, whom he suspected of spreading rumours, but also his own daughter, who had become a symbol of his sin---Son of accused also appeared during trial and corroborated the version of his mother (wife of accused)---Accused not only committed gruesome murder of two persons but his conduct reflected a morbid, perverse and depraved character---Review petition was dismissed in circumstances.  2013  SCMR  16    

 

Abduction and rape and age of the girl in dispute. Girl medically got examined by the accused. Doctor reported her to be 17 or 18 years old. Girl also got medically examined by the investigating officer and the report was that she was under 16 years but used to sexual intercourse. Girl during investigation giving statement in favour of prosecution. She had earlier made a statement before a magistrate that she had not been abducted, and that she had gone away with the accused of her own accord. Held the grant of bail in view of doctor's opinion about girl's age and her earlier statement in favour of the accused before a magistrate, prima facie justified. Whether statement for or against the accused yet to be determined by the trial Court. Question of rape also dependent on determination of question of abduction. Bail allowed by the Supreme Court. (SC) 1976 SCMR 157 Abbas Ali.

intention or knowledge is required under section 366, PPC. Such intention cannot be presumed in the case of girl of 13 years. AIR 1916 Lah. 352 Mst. Mehran.

Intention u/S. 366, PPC is to be inferred that the girl was abducted for illicit intercourse. Burden lies on the accused to rebut the presumption. (DB) PLD 1959 Dac 956 Siddiq.

Offence of kidnapping complete as soon as girl under 16 years removed from the lawful guardianship. Consent of such girl to marriage with kidnapper cannot absolve the kidnapper of the offence under section 363, P.P.C. 1977 P Cr.L.J. 941. Manzoor.

Mere abduction is not sufficient to establish the offence. Prosecution must prove that the woman abducted was to be subjected to illicit intercourse by use of force or seduction. (S C) 1969 SCMR 491 Hussain Ali Shah v. Crown 1969 P Cr.L.J. 1091.

Simple abduction as defined u/S. 362, PPC is not an offence (DB) PLD 1962. Lah. 733 Muhammad Hussain.

Consent of kidnapped girl is no defence but it is a factor which can be considered while awarding punishment. AIR 1926 Lah. 677 = 27 Cr.L.J. 1018 Wali Mohammad.

Abductee murdered. Where an abductee is murdered the accused is not to be charged u/S. 364, PPC but for murder u/S. 302. 42 Cr.L.J. 285 = AIR 1940 Cal. 561. Upendera Nath (DB) PLD 1950 Dac. 4. Mazharul Haq.

Abduction for pressure. A girl was abducted to put pressure on her friends to restore another girl which they had abducted. That girl was released after the other girl was restored. No harm was done to her. Held, under the circumstances heavy sentences of imprisonment were not necessary. AIR 1916 Lah. 269 = 17 Cr.L.J. 472 Waris v. Emp.

Consent of minor girl. Minor girl taken away at her own request and illicit intercourse had with her. Conviction u/S. 366 proper but sentence reduced from 5 years to 3 years.PLD 1962 Kar. 886 Abdul Hamid.

Girl under 17 years left with the accused of her own accord and had sexual intercourse of her own free will. Sentence 3 years R.I.PLD 1963 Kar. 130 Ansar Hussain. Prosecutrix below 16 years of age at the time of abduction held, her willingness to accompany the accused is of no consequence. PLJ 1989 Cr. C (Lah.) 575 Ghulam Hussain.

Removal of girl under 16 years and her marriage with the accused, even with her consent does not absolve the accused of offence under section 363, PPC which is completed as soon the girl is removed out of the legal guardianship PLJ 1977 Lah. 250 Manzoor.

Elopement. Probability of girl eloping with the accused. Conviction bad. Accused acquitted. AIR 1925 Lah. 274 Har Ditta

 Abduction or kidnapping is complete when the minor has been transferred from the custody of the guardian to the custody of a person not entitled to it. It is not a continuous offence. 17 Cr.L.J. 236 = AIR 1916 Lah. 230. Gurdit Singh. (SC) PLD 1967 SC 363. Mohd Razzak

Kidnapping and abduction. Taking of complainant from phattak to another nearby place does not include act of abduction PLJ 1984 FSC 84. Shafa Ullah. Abduction for murder. Whether deceased actually done to death and if so by whom not gravamen of offence u/S. 364, PPC. Evidence direct and circumstantial of deceased having been induced to accompany accused on false representation made with a view to put in danger of deceased being murdered is enough. Held, offence u/S. 364, PPC brought home to the accused. 7 years RI upheld. Offence u/S. 302 not proved. (SC) PLD 1976 SC 404. Abdul Sattar. PLJ 1976 SC 258.

Prostitution by girl. Where a girl in consideration of money paid to the accused allows persons to have intercourse with her, those persons, held, do not hire her within the meaning of Sec. 373. 1898 Cr. Rulings (Bomb. H.C. No. 16) of 1898 Ahmed Khan.

Girl's age not with accuracy to be below 16 years, conviction for kidnapping could not be maintained. (DB) PLD 1950 Dacca 23, Santosh Kumar v. Crown. Abduction of grown-up girl. Allegation of the use of force requires corroboration. PLD 1959 Kar. 635. Abdul Rashid.

Evidence of abducted girl must be taken with great caution. (DB) AIR 1938 Lah. 474 Mohd Sadiq v. Emp.

Substantial corroboration of abductee's statement not a must for offence u/S. 366, PPC. (DB) PLD 1958 Dac 400 Shah Alam v. Crown.

 Husband lawful guardian only after the wife attains puberty. Where the maternal uncle took away the minor wife and in the absence of the proof that the husband had been entrusted with the care and custody of the minor, the uncle had committed no offence. 36 Cr.L.J. 1031 = AIR 1935 All. 566 Wasima. Father legal guardian of son. Removal of son by father from the hizanat of his mother cannot make father liable under section 363, PPC. Proceedings quashed.1971 P.Cr.LJ 252 Bashir Ahmad 1971 P.Cr.LJ 982. Asghar Ali.

Abduction by father. Where father abducted his married daughter forcibly in order to sell her, held, contention that father could not abduct his own daughter is without force. 1980 P.Cr.L.J. 890 Hamal etc.

Guardianship from which the girl was taken must be stated in the charge. (DB) PLD 1959 Dac. 750 Ear Ali. Forcibly taking to husband. Accused forcibly trying to take woman to her husband's house to compel her to live there against her will is not guilty of abduction. PLD 1960 Lah. 53

Abduction and rape. Separate sentences for abduction and rape can be passed and it is not contrary to section 71, PPC, ILR 7 Lah. 484. Ghulam Muhammad. Wrongfully concealing a kidnapped or abducted person. A person who has been convicted under section 366 cannot be convicted also under section 368 ILR 2 Luck. 249. Bannu Mal. Superdari of abductee. Investigating officer cannot hand over an adult married woman to a person against her wishes. PLD 1962 Q 108 Mohd Sharif v. Lal Mohd. 

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