THE STATE vs SHANDI GUL
This criminal appeal arises from concurrent proceedings where the respondent was charged under section 364-A of the Pakistan Penal Code for kidnapping a minor child, but was convicted by the trial court under section 363 of the Pakistan Penal Code for kidnapping from lawful guardianship and sentenced to seven years rigorous imprisonment. The State appealed for a conviction under section 364-A, while the accused appealed for complete acquittal. The core legal question was whether the statutory requirements and specific criminal intents required under section 364-A were established, and whether the conviction under section 363 was sustainable based on the evidence. The Supreme Court of Pakistan held that the prosecution failed to establish any evidence regarding the specific aggravated intentions mandated by section 364-A, rejecting generalisations regarding the accused's ethnicity, but affirmed that the evidence conclusively proved the offence of kidnapping from lawful guardianship under section 363. The Supreme Court laid down the principle that conviction under section 364-A requires clear, positive evidence of specific aggravated intent, which cannot be presumed through broad generalisations.
- Whether a conviction under section 364-A of the Pakistan Penal Code can be sustained without evidence of specific aggravated intent?
- Can general assumptions regarding an accused's background substitute for positive evidence of intent in a criminal charge?
- Is the offense of kidnapping from lawful guardianship under section 363 of the Pakistan Penal Code established when an accused is apprehended carrying a minor away from the place of taking?
- Section 364-A, Pakistan Penal Code 1860
- Section 363, Pakistan Penal Code 1860
1. ' NASIM HASAN SHAH, J.--The facts, which form the background to these appeals, are that a case under section 364-A, P.P.C. Was registered against the respondent on 25-3-1987 at the instance of one Faiz Ahmad, P.W.1.
2. ' Faiz Ahmad, complainant, P.W.1, resides in Mohallah Khadimabad of City Bahawalpur. On 23-5- 1987 at about 5 p.m. His minor son Khalid Naveed aged 3/4 years was playing in an open plot situate outside his house alongwith the children of neighbourhood. All of a sudden an alarm was raised by the children that Khalid Naveed was being lifted away by a Pathan and that he has gone towards the forest. According to Abdul Waheed, P.W.3 (aged about 8/9--years) a pathan wearing a Shaiwar, Shirt and Peshawari cap with chappel on his feet had carried awary Khalid Naveed towards the forest. He alongwith Nazar Muhammad, P.W.4, Muhammad Ashraf and Muhammad Yar (given up P.Ws.) chased and caught hold of the said Pathan alongwith Khalid Naveed some two furlongs inside the forest, where he was trying to hide. On enquiry, the said Pathan disclosed his name as Shandi Gul. He was arrested and after necessary investigation, the challan was submitted under section 364-A, P.P.C. To the Court of the learned Special Judge, Punjab Special Court for Speedy Trial No,VI, Bahawalpur.
3. ' The prosecution examined Faiz Ahmad, P.W.1 complainant, P.W.3 Abdul Waheed-- the boy of 8/9 years-- who was playing in the plot outside Faiz Ahmad's house with Khalid Naveed and P.W.4 Nazar Muhammad, another eyewitness.
4. ' The learned trial Court after recording the evidence and hearing the parties held that though no case under section 364-A, P.P.C. Was established against the accused but the commission of an offence under section 363, P.P.C. By him, was made out. Accordingly, the learned trial Court, vide judgment dated 22-11-1987, convicted the accused under section 363, P.P.C. And sentenced him to 7 years R.I. And a fine of Rs,10,000.
5. ' The State has filed an appeal (Criminal Appeal No,199 of 1987) contending that the accused was liable to be convicted and sentenced under section 364-A; while the accused Shandi Gul in his appeal submitted from Jail (Criminal Jail Appeal No,29 of 1988) has contended that he is innocent and entitled to be acquitted. This order will dispose of both these appeals.
6. ' After having perused the relevant evidence and heard the learned Assistant Advocate-General, Punjab, our conclusion is that no ground exists for any interference with the judgment of the learned Judge of the Special Court.
7. ' Section 364-A of the Pakistan Penal Code lays down - "364-A.--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 of life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years."
8. ' Before the offence under the above section is established, it is necessary that the intentions mentioned in section 364-A, P.P.C. Must exist and are legally brought home to the accused.
9. According to the learned Assistant Advocate-General, Punjab, the intention of the appellant in this case was to kidnap the little boy (Khalid Naveed) for subjecting him to slavery. However, there is not an iota of evidence on the record in support of this alleged intention. All that the learned Assistant Advocate-General could say in support of his plea was that Pathans kidnap the children for purposes of slavery. Such a broad generalisation cannot be accepted unless supported by proper evidence, which is entirely lacking in this case.
10. ' Coming to the appeal filed, through jail, by Shandi Gul we observe that he admits that the child was recovered from his possession. However, according to him, when he was passing through Mohallah Khadimabad he saw a little boy (Khalid Naveed) weeping as some thorn had got stuck in his feet and he had merely picked up the boy on humanitarian grounds to take out the said thorn from his foot. According to him, he has been involved in the case on account of misunderstanding.
11. This defence was considered by the learned Special Judge but found unacceptable. We too agree.
12. The prosecution evidence shows that the accused had picked up the little child and was taking him towards the forest and that he was apprehended, with the child in his arms, more than two furlongs from the spot from which he had picked him up. The Court below was, therefore, right in holding that the evidence showed that the offence under section 363, P.P.C. Fully established the case of kidnapping a minor child from the lawful guardianship.
13. ' The result is that both the appeals must fail and are, accordingly, rejected hereby.
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