NAIMAT KHAN Versus THE STATE

1. The appellants were charged under sections 366, 352 and 342, P.P.C, and tried before the learned Vth Additional Sessions Judge, Karachi, who has convicted and sentenced appellant Naimat Khan to suffer R.I. for five years and to pay fine of Rs. 5,000 in default to suffer R.I. for one year under section 366, P.P.C. R.I. for two years and to pay fine of Rs. 2,000 or in default to suffer R. I for six months under Section 452, P.P.C, and R.I. for two months and to pay fine of Rs. 1,000 in default to undergo for three months under section 342, P.P.C. while appellants Mst. Khanam Jan, Mst. Noor Jehan and Mst. Farooq Jan have u been convicted under section 368 P.P.C., and sentenced to suffer R. I. for one year each and to pay fine of Rs. 2,0(10 in default to suffer further R.I. for six months. All the appellants have been further directed to pay Rs. 3,000 each to Mst. Guloo Jan as compensation under section 544‑A, Cr. P. C and in default of payment to suffer further RI/SI for three months.

2. The brief facts of the prosecution case are that on 22‑6‑1978 Mst. Ruqaya Begum wife of Ghulam Rasool lodged a report at P.S. Pak Colony, Karachi, inter alia, alleging therein that she resides in House No. 471 Central Muslimabad, Karachi. Her husband Ghulam Rasool had gone to native place Kohat. Today at 16‑30 hours she and her daughter Guloo Jan aged 18/19 years were present in the house when all of sudden Niamat Khan who was used to live in their neighhourhood alongnwith his family three years back, entered inside the house by breaking open in t he door while two of his companions were standing outside. Naimat Khan immediately after entering inside caught hold of her daughter Guloo Jan who raised cries. She tried to release her daughter but Naimat Khan pointed pistol at her, while his two companions forcibly dragged her daughter Guloo Jan and took her away by putting in her taxi ‑No. 815‑343. Muhammad Waris, Hameeda Begum and the people of the Mohallah had witnessed this incident but they did not go near the accused due to fear. She could identify the accused if produced before her. She had betrothed her daughter Guloo Jan with Muhammad Saleh. This F.I.R. was recorded by S.H.O. Atta Muhammad and the F.I.R. has been produced as Ex.

10. He then proceeded to the scene of offence which was shown to him by complainant Mst. Ruqiya Begum. He prepared such Mashirnama in presence of Mashirs Waris Khan and Muhammad Nazir and the same has been produced as Ex.

13. He then went in search of the accused and the girl towards Landhi side as the accused Naimat Khan was residing towards Landhi side. He returned to the Police Station Quaidabad where he was informed by A.S.I. Maqsood that victim had been secured by him. He further informed him that he had also detained Khanam Jan, Noor Jehan and Farooq Jan. The S.H.O. recorded statement of Mst. Guloo Jan daughter of the complainant. He also recorded statements of Ghulam Ali and Abdul Wahab. He arrested Mst. Khanam Jan, Noor Jehan and Farooq Jahan. He then returned to the Police Station alongwith victim Mst. Guloo Jan and three lady accused. Since the number of taxi in which Mst. Guloo Jan was abducted was disclosed in the F.I.R. He secured that taxi from. one Ahmad Yar. He recorded statement of Ahmed Yar who disclosed that his taxi was being driven by accused Ahsan. On 24‑6‑1978 he arrested accused Ahsan at 4.30 A.M. On 6‑7‑1978 he arrested accused Naimat Khan from Moinabad, Landhi. After completing investigation he challaned the accused on 7‑7‑1978 showing co‑accused Hakin Khan and Humayoori as absconders.

3. A formal charge was framed against present appellants and the co accused Ahsan, to which they pleaded not guilty.

4. At the trial prosecution examined Muhammad Yusuf P.C. P.W. 1 who was given NBWs against accused Hakim Khan and Humayoon but the same could not be served, complainant Ruqiya Begum P.W. 2, she has produced the F.I.R. as Ex. 10, Mst. Guloo Jan victim P.W. 3, Waris Khan an eye‑witness P.W. 4, he has also produced Mashirnama of Wardat as Ex. 13, Ghulam Ali Mashir of recovery of girl P.W. ‑5, he has produced tlic Mashirnama of recovery as Ex. 15, Maqsood Ahmed A.S.I. P.W. 6, he had recovered Mst. Guloo Jan from the house of accused Naimat Khan, Dr..Abdul Majeed Khan P.W. 7, he had examined Mst. Guloo Jan with regard to her age and issued such certificate, which has been produced its Ex. 15, Abdul Wahab P.W. S, in his presence the three lady accused were arrested vide Mashirnama Ex. 16, S.H.O. Atta Muhammad P.W. 9, who had carried on the investigation and challaned the accused/applicants.

5. After close of the prosecution case the statements of the accused were recorded under section 342. Cr. P.C. in which they denied the allegations and alleged false implication. The accused did not examine any witness in their defence except accused Ahsan who examined Shaikh Ram7an D.W. 1 and Muhammad Zaheer Khan D.W. 2.

6. Muhammad Yousuf P.W. 1 was posted as Police Constable, at P.S. Pak Colony. He had received NBWs issued by the Court against Hakim Khan and Humayoon but the same could not be 'served as their whereabouts were not known. He has produced the warrants as Exs. 8/1 and 2, statements of witnesses Gulzar and Qamarul Islam as Exs. 8/3 and 4 and his own statement as Ex. 8/5.

7. Mst. Ruqiya Begum complainant P.W. 2 has supported the contents of her FIR and has further deposed that since she was crying loudly one person by name Muhammad Nazeer standing there assured her that she should not worry he has noted down the number of taxi. She has produced the FIR as Ex.

10. She has further deposed that she, knew accused Naimat Khan as he resided in their neighbourhood and has shifted from there years back.

8. Mst. Guloo Jan P.W. 3, has deposed that on 22‑6‑1978 at about 4.00 or 4.30 p.m. she and her mother were sitting in their house, while her father had gone to Konat. At that time Naimat Khan broke open the gate of their house and came inside He had a `Tamancha (pistol or revolver) in his hand. He cautioned them not to raise alarm on which she and her mother raised cries and rushed into the room of their house and bolted the door from inside. Accused Naimat Khan broke the door also and came inside. He again threatened them not to raise cries. He caught hold of her by hand and dragged her upto the courtyard. She raised shouts of `Bachao` `Bachao'. Two men were standing in the courtyard having muffled their faces, they also caught hold of her. She then caught cot when they dragged her, they hit her with something on her left arm. When they dragged her upto the main gate the fourth man also was standing there. She and her mother went on crying on which‑‑ people of Mohallah came there. Hameeda came there and tried to rescue her on which Naimat Khan and two others gave a push to her as such she fell inside the house and closed its gate from outside. Waris also came there and tried to intervene but accused threatened to kill him. They forcibly took her towards road and tried to put her in taxi but she raised cries and caught hold of the door of the taxi, one of them gave her kicks and they put her inside the taxi by force. They caught hold of her inside the taxi and also gagged her mouth. The taxi stopped at the signal when there was red light on which accused Naimat Khan asked the driver to violate the signal and proceed ahead. They took her to the house of Naimat Khan where the mother and wife of accused Naimat Khan were present. She protested as to why she was molested upon which Naimat expressed that he wanted one lac rupees as ransom. Three women sitting inside the house caught hold of her and took her inside the room by force although she resisted and cried. She tried to jump over the wall to get out of the house but she was caught hold by a tall lady. On the same day police came there at about 6.30 or 7.00 P.M. and recovered her from there. When first police enquired about her from the wife of Naimat Khan she showed her ignorance about her (witness). Police took her to Police Station. There was only one policeman. Police examined her. Accused Naimat Khan was present in Court and other one was driver of the taxi.

9. Waris Khan P.W.4 has deposed that about two and half years back he resided at Golimar, Karachi, the area was known as Muslimabad. At about 3.00 p.m. he returned, from his work and was taking bath when he heard commotion, therefore, he asked his wife to peep through the curtain as to what was happening outside. She told him that Mst. Guloo Jan was being taken by somebody. He put a Chaddar and came out and saw accused Naimat Khan armed with `Tamancha', he was holding a girl by hand. When the girl put some resistance he found that the girl fell down from his arms. The accused went towards the turn of the street while one of the other two persons who was a healthy man took the girl. He went near accused Naimat Khan on which he pointed the `Tamancha' at him and threatened to kill him. Another person was armed with knife, and with his knife he pushed him back. In the meantime, the girl again fell down therefore one of those persons and Naimat Khan caught hold of the girl from her legs and arms and took; her away and reached near the road, where a taxi was standing, accused (pointing at accused Ahsan) sitting at the steering of the taxi. He did not know his name. They put the girl in taxi by force although the girl resisted by putting her legs and hands against the door of the taxi. They took away the girl. The culprits were in all three persons. Police came there and examined him at the Police Station, Police visited the place of occurrence, prepared a memo which he has produced as Ex.13 According to him, accused Naimat Khan present in Court was same. The driver of the taxi was also present.

10. Ghulam All P.W.5 has deposed that he knew accused Naimat because he resides in his neighbourhood. On 26‑7‑1978 at about 7.30 p.m. he was in his shop and was taking out the fruit and was keeping it on Rehri. Sub Inspector of Police namely Maqsood came there and told him that he has to take the search of accused Narmat Khan as he suspected that one abducted girl was being kept in his house. Sub Inspector also called Abdul ''ahah. He look them to the house of accused Naimat Khan and searched his house. He secured the abducted girl Mst. Guloo Jan from the possession of the three women namely Noor Jehan, and two others whose names he did not know. Mst. Guloo Jan was wearing torn cloths. Her cloths were stained with blood. S.I.P. Maqsood prepared such Mashirnama in their presence and obtained their signatures. He has produced Mashirnama as Ex.15. There is note from the Court that witness points at accused Farooq Jan and says that she is the same from whose custody Mst. Guloo Jan was secured by the police. He could not identify the remaining two lady accused as he had not seen their faces clearly at the time of recovery of Mst. Guloo Jan.

11. Maqsood Ahmed ASI PW.6 has deposed that on 22‑6‑1978 he was posted as A.S.I. at Police Station Qaidabad. He was on patrol duty in Moinabad, Karachi when he received spy information that one abducted woman has been kept in confinement in the house of the accused Naimat Khan. He went to the house of accused Naimat Khan alongwith his staff. He saw that some person were standing outside the house of accused Naimat Khan. He knocked at the. door but nobody came out. He then peeped inside the house by scaling over the door and saw that one woman was standing surrounded by 2/3 women in the house. He told the women to release that woman who was surrounded by them. The door of the house was bolted from inside. The women refused to listen to him and they did not release the woman. He then went inside the house and brought out the abducted woman who disclosed her name as Guloo Jan. Her cloths were torn. He then prepared the Mashirnama of recovery of Mst. Guloo Jan in presence of Mashers Ghulam Ali and Abdul Wahab and took their signatures, he has produced the mashirnama as Ex.16.He then brought Mst. Guloo Jan to police station Qaidabad and produced her before S.H.O. Pak Colony at P.S. Qaidabad. He also handed over the papers to S.H.O. flak Colony for further investigation. The case was already registered at the Police Station, Pak Colony. S.H.O. Pak Colony had recorded his statement. The three lady accused who were present in court were same who were holding Mst. Guloo Jan under their confinement in their house. They were Mst. Khanam Jan, and Mst. Noor Jehari. He could not recollect the name of third one:

12. Dr. Abdul Majeed P.W.7 has deposed that on 24‑6‑1978 he was Incharge Medico‑Legal Department, Abbasi Shaheed, Hospital, Karachi. On that day Pak Colony Police had sent to him one girl named Guloo Jan daughter of Haji Ghulam Rasool for the purpose of determining her age. Acco rding to his opinion the age of girl was about 18 years. He issued such certificate which he has produced as Ex.18.

13. Abdul Wahab P.W.8 has deposed that he has been running cycle shop since last thirteen years. He knew accused Naimat Khan who used to reside near his house. About three years back it was evening time when he heard commotion coming from outside. He went out and saw that many persons were standing outside his house. House of accused Naimat Khan was near his house. He also saw a Policeman standing with those people. The Police man took out three women from the house of accused Narmat Khan and took them to the police station. He (witness) was also taken to the police station by police. Police had not prepared a Mashirnama in his presence at the place of recovery after arrest of three women. Police had obtained his signature on a paper at police station.

14. However, he was declared as hostile and cross‑examined. S.H.O. Atta Mohammad P.W.9 has deposed that on 22‑6‑1978 he was S.H.O. Pak Colony, Police Station, Karachi. On that day Mst. Ruqiya Begum wife of Haji Ghulam Rasool came and lodged the F.I.R. which he recorded at her dictation. It was read out to her and she put her thumb mark. F.I.R. Ex. 10 produced in court was the same. The remaining investigation carried on by him has been mentioned in the earlier part of this judgment.

15. After close of the prosecution case the statements of the accused were recorded. The accused did not examine defence except co‑accused Ahsan who examined two witnesses in his defence.

16. Sheikh Ramzan D.W.I. has deposed that he knew accused Ahsan. In the yr‑ar 1976 he used to run a pan shop in their Mohallah. He knew that accused was of good character. In cross‑examination he has deposed that he did not know if accused Ahsan was arrested in the case of abduction.

17. Mohammad Zaheer Khan D.W.2 has deposed that he knew accused Ahsan present in the Court. He used to reside near his Mohallah. In the year 1976 he used to run a pan‑shop. in cross‑examination he has deposed that he did not know as to on what date accused Ahsan was arrested in this case. He did not know if the accused used to run a taxi. He did not know that he used to sit for the whole day at the pan shop.

18. After recording the evidence the learned trial Judge convicted the appellants as described above, while co‑accused Ahsan was acquitted. The present appeal is directed against the said judgment of conviction.

19. I have heard Mr. Nooruddin Sarki, Advocate, appearing for the appellants; Mr. S. ‑Murtaza Hussain, Advocate for the State, and Mr. M. Ilyas Khan for the complainant. Mr. Nooruddin Sarki learned counsel for the appellants has contended that the learned trial Judge had erred in convicting the appellants under section 366, P.P.C. as there was no evidence regarding intention as envisaged by section 366, P.P.C. In support of his contention he has relied upon the case of Hussain Ali Shah v. The State (1969 P Cr. L J 1091). He has further contended that the award of compensation to Mst. Guloo Jan for mental anguish was illegal inasmuch as this provision was introduced after the present incident took place. In the alternative it was contended by Mr. Sarkri that the appellants No. 2 to 4 were ladies and their sentences may be reduced to already undergone.

20. Mr. S. Murtaza Hussain learned counsel for the State has contended that intention of the accused could be inferred from the circumstances of the case, and in the present case there was direct allegation made by Mst. Guloo Jan that the accused told her that she was abducted for obtaining ransom of Rs. 1 lac, and there was evidence under section 365, Cr. P C. and the case was proved against accused Naimat Khan. As far as the question of compensation was concerned he frankly conceded that in view of the legal position he could not support the judgment regarding payment of compensation. He has further contended that the appellants Nos. 2 to 4 had shown no respect for a girl and therefore the), did not deserve lenient treatment.

21. Mr. M. Ilyas Khan learned counsel for the complainant has adopted the arguments advanced by Mr. S. Murtaza Hussain.

22. I have considered the contentions of the learned counsel, and have gone through the R & P of the case with their assistance.

23. The prosecution case is fully supported by complainant Mst. Ruqiya Begum, Mst. Guloo Jan victim, and Wars Khan. Their evidence is consistent, natural and reliable. Their evidence has not been shaken in spite of long cross -examination by the learned counsel appearing for the appellants/accused except few minor contradictions. Their evidence is further supported by P.Ws Ghulam Ali and A.S.I. Maqsood Ahmed inasmuch as according to them Mst. Guloo .Ian was recovered from the house of accused Naimat Khan on the day of incident while she was being surrounded by the lady appellants. It has further come in evidence that her clothes were torn and this fact is mentioned even in the Mashirnama of recovery. This further goes to support the case of the prosecution that during the abduction Mst. Guloo Jan had struggled for her release. Even the evidence of S.H.O. Atta Mohammad and Waris Khan mashir shows that the door of the house of the complainant was broken which supports the evidence of complainant Mst. Ruqiya Begum and Mst.Guloo Jan that accused Naimat Khan had entered in their house forcibly after breaking the door. The witnesses appeared to be independent and natural, they had no reason to falsely implicate the accused/appellants. Even Mr. Nooruddin Sarki. Advocate has not seriously challenged the evidence of the witnesses. No enmity has been alleged against the witnesses nor any question regarding enmity was suggested in cross‑examination.

24. In view of the above discussion it is clear that the prosecution had proved beyond reasonable doubt that accused Naimat Khan had forcibly abducted Mst. Guloo Jan from her house against her wishes. That she was wrongfully confined by the three lady appellants/accused knowing fully that Mst. Guloo Jan had been abducted by Naimat Khan.

25. This brings me to the next important question with regard to nature of offence committed by the appellants. In order to appreciate tile legal position and the contentions raised by the learned counsel appearing for the parties it necessary to have a look at the definition of abduction and the ingredients of the offence under section 366 P.P:C.

26. Section 362 P.P.C. defines abduction which reads as under

27. "Whoever by force compels, or by any deceitful scans induces, any person to go from any place, is said to abduct that person."

28. Section 366 P.P.C: which prescribes punishment for abduction, reads as under:‑

29. Section 366:‑‑"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 any 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."

30. There is evidence that Mst. Guloo Jan was forcibly taken away by accused Naimat Khan against her wishes but there is no clear or direct evidence that she was abducted with the intention to marry her against her wishes or that she was to be forced or seduced to illicit intercourse. On the contrary she has herself deposed that when she protested as to why she was molested accused Naimat Khan expressed that he wanted Rs. 1 lac as ransom.

31. In Hussain Ali Shah and another v. Crown (1969 P Cr. L J 1091) it was held by their Lordships of the Supreme Court that:

32. "Penal Code‑‑Section 366‑Mere abduction not sufficient for offence under section 366, P.P.C. Prosecution must also prove intention that woman abducted was to be subjected to illicit intercourse by use of force or seduction."

33. In Kishori Ranghnath v. The State (AIR 1964, 357) relied upon by Mr. S. Murtaza Hussain, it was observed that:‑ "the essential ingredient of the offence under section 366 P.P.C. is that a person who kidnaps or abducts any woman should do so for the intent specified in that section. The words that a person should know it to be likely that she may be forced or seduced to illicit intercourse and she will be compelled to marry a person against her will' are of wide amplitude. When a young girl of 13 years is being sent to an unknown person for the purpose of being sold, it is not an unlikely expectation in the minds of those who are conniving at it that there was a possibility of her being married against her will or being subjected to forcible illicit intercourse."

34. In Muhammad and another v. The State (1970 P Cr. L J, 217) relied upon by the learned State Counsel it was observed that: "the woman was forcibly removed not merely for the purpose of wrongful confinement, but looking to the background the intention must be to subject her to illicit intercourse. Approaches were made for her marriage with the grand‑son Khan Muhammad father of appellant Mohammad but the relations of the woman did not agree and instead she was given in marriage to the step‑son of the complainant."

35. The decision reported in the case of Hussain Ali Shah and another v. The Crown is very clear that for proving an offence under section 3611, P.P.C. the prosecution must also prove the intention that woman abducted was to be subjected to illicit intercourse by use of force of seduction or was to be married with some one against her wishes, whereas the decisions in the cases of Kishori Ranhnath v. The State and Muhammad and another v. The State speak of the circumstances from which a presumption could be raised against the accused There is no cavil with the principles laid down by their lordships of the Supreme Court in the case of Hussain Ali Shah v. The Crown. Even the two cases cited by, the learned State counsel also show that there should be some evidence; from which the intention could be presumed. In the Indian case there was evidence that the girl was sent to another place for the purpose of sale, while in the latter case of Muhammad & another v. The State the hand of the girl was demanded by the father of the appellant Mohammad for his grand‑son and therefore it was presumed that she was abducted with the intention to marry her against her will.

36. In view of the above legal position it is clear that no offence was committed under Section, 366 P.P.C. as even according to Mst. Guloo Jan she wits abducted only with the intention to obtain ransom of Rs. I lac, and therefore, I am of the considered view that the offence committed by appellant Naimat Khan will fall under section 365, P.P.C. which reads as under:‑

37. "Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

38. In view of the above discussion and the legal position I am of the clear view that the appellant Naimat Khan had committed an offence under section 365 P.P.C. and not under section 366 P.P.C., and therefore his conviction is converted from section 366 P.P.C. to section 365 P.P.C. As far as the question of sentence is concerned he has committed a very heinous crime and therefore I maintain the sentence of five years and line of Rs. 5,000 in default he shall suffer R.I. for one year. The sentences awarded to him under section 452 P.P.C. and 342, P.P.C. are also maintained but they are ordered to run concurrently.

39. As far as the appellants No. 2, 3 and 4 are concerned, appellant Khanam Jan is said to be 80 years of age. Even the statement recorded by the learned Judge on 17‑5‑81 shows that she was 70 years of age at that time, and by now she will be above 75 years. She has also remained in jail from day of her arrest i.e. 22 6‑1978 to 13‑7‑1978, and again from 14‑10‑1984 (the day on which she was convicted) till 23‑10‑1984 (when she was released on bail) in all for about 30 days) and she has suffered the agony of the protracted trial from the year 1978. Looking to the above circumstances I am of the considered view that the ends of justice will be amply satisfied if her substantive sentence is reduced to one already undergone, but the sentence of fine of Rs. 2,000 is maintained and in default she will suffer SI for six months. As far as appellant Farooq Jan is concerned, there is no evidence that she was related with the main accused Naimat Khan but on the contrary there is evidence that she was his neighbour. There was no evidence to show that appellant Farooq Jan knew that Mst. Guloo Jan was abducted with the intention of obtaining ransom of Rs.l lac from her parents. She has also remained in jail for 11 days and has suffered the agony of protracted trial from the year 1978 and therefore I am of the considered view that in her case sentence already undergone will meet the ends of justice. As far as appellant Noor Jehan is concerned, she is wife of main accused Naimat Khan and has remained in jail for 30 days. However, in view of the fact that she is a woman and has suffered agony of protracted trial I reduce her sentence from one year to three months SI, but the sentence of fine is maintained and in case of default she will suffer further SI for six months. Fine if recovered shall be paid to P.W. Mst. Guloo Jan.

40. The order of compensation is set aside in view of the fact that the amendment with regard to compensation had come into force after the incident was committed.

41. With the above modification the appeal is hereby dismissed.

42. S.A./N‑78/K

43. Order accordingly.