2022 Y L R Note 53
[Balochistan]
Before Rozi Khan Barrech, J
PARA DIN---Petitioner
Versus
The STATE--- Respondent
Criminal Revision No. 130 of 2019, decided on 4th September, 2020.
Penal Code (XLV of 1860) ---
----S. 363 ---Kidnapping or abducting a person under the age of ten---Appreciation of
evidence--- Allegation against the accused was of abducting four children of the complainant -
--Record showed that the complainant, who was a mother of the allegedly abducted children
in her testimony gave the sa me account of the facts which was given by her in the FIR, which
reflected that the complainant had given a true account of the facts of the case---Other star witness of the case remained consistent in his testimony in terms of material and corroborated the statement of the complainant--- Statements of complainant and witness also
corroborated the statement of the Police Officials who recovered the abducted children of the complainant from possession of petitioner from a room in a dairy farm ---Statement of the
complainant was supported by the witnesses and left no room for doubt in prosecution story and nexus of the offender with the crime he had been charged with--- Accused did not keep
the children in any residential house but kept them in a room of a dairy farm, which was not
a house for residential purpose and the accused concealed the minors at s ome secrete place
after their abduction ---Circumstances established that the minors had been removed from the
custody of the complainant and they were illegally ke pt in concealment by the accused ---No
doubt that brother of the accused was the father of the minors but that fact alone did not mean that he had a license to forcibly snatch the minors from the custody of their mother at gunpoint and to hide them at some secret place in order to frustrate the process of the law
and the court ---Father could take the benefit of the exception of S.361, P.P.C., provided he
satisfied two conditions, firstly, if he established that he in good faith believed himself to be entitle d to the custody of his minor children and secondly his act must not be for any
unlawful or immoral purpose ---Said exception of S.361, P.P.C. extended to two situations,
first when a father removed his illegitimate child and the second when any person remo ved a
child in good faith believing himself to be entitled to his custody ---Accused, being uncle of
the minors, was in no manner entitled to their lawful custody and had nothing to do with the custody or guardianship of those minors in the life time of the ir mother and father ---Accused
had failed to point out any illegality, misreading and non- reading of evidence in the impugned
judgment ---Revision petition being devoid of any merits was dismissed, in circumstances.
Shah Rasool Kakar for Petitioner.
Habib ullah Gul, A.P.G. for the State.
Date of hearing: 28th July, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through this criminal revision petition filed under
sections 435 and 439, Cr.P.C., the petitioner has impugned judgment dated 10.10.2019,
passed by learne d Additional Sessions Judge Loralai ("appellate court") whereby the appeal
filed by the petitioner against the judgment dated 27.09.2019 passed by learned Judicial Magistrate Loralai ("trial court") was dismissed.
2. Facts of the case are that FIR No. 196 of 2018 dated 15.11.2018 was registered with
Police Station Saddar Loralai for an offence under section 363, P.P.C. on the complaint of Bibi Sira wife of Azbadin against the petitioner with the allegation that the complainant had married one Azbadin, where after she gave birth to four children namely Imran Khan aged
four years, Bibi, Palwasha aged five years, Bibi Sittara aged seven years and Memona aged one year. She further alleged that her husband is a drug addict, therefore, unable to feed up her childr en and that she resides in the house of her father at New Pahari Mohalla Loralai.
On 28th October, 2018 at 5:30 p.m. her children were busy in playing when Para Din (petitioner), Abdul Matin, Khwaj and Muhamamd Hassan accompanied by two unknown
accused per sons came there and abducted her children named hereinabove. She also alleged
that the accused persons were close relatives and brother of her husband, who had threatened
her before the said incident to abduct her children. Hence, the crime report.
3. On c ompletion of the usual investigation, challan of the case was submitted before the
trial court, whereby after the full dressed trial the accused/ petitioner was convicted and sentenced by the trial court vide impugned judgment dated 27th September 2019 in the
following manner:
"23 ... ....accused person namely Para Din is sentenced and convicted under section 363, P.P.C. as the children have been recovered from his possession to suffer rigorous imprisonment for the period of three (03) years and convict i s also liable to pay fine
of Rs.10,000/ - and in default of payment of fine to further undergo R.I for one month.
The benefit of section 382(2) Cr.P.C. shall be extended in favour of convict accused."
Being aggrieved from the judgment passed by the trial c ourt the petitioner filed an
appeal under section 408 Cr.P.C. before the appellate court, but the same was dismissed vide impugned judgment dated 10th October 2019, hence the instant petition.
4. I have heard the learned counsel for the petitioner, the lea rned APG and have also
perused the available record with their able assistance.
5. A perusal of record reveals that the complainant who is a mother of allegedly
abducted children in her testimony gave the same account of the facts which was given by her in the FIR, which reflect that the complainant has given a true account of the facts of the
case. The other star witness of the case, i.e. PW- 4 Haji Nooruddin remained consistent in his
testimony in terms of material and corroborated with the statement of th e complainant. The
statements of PW -1 and PW4 also corroborated the statement of the police officials who
recovered the abducted children of the complainant from possession of petitioner from a
room in a dairy farm at Quetta. The statement of the complaina nt was supported by the
witnesses and left no room for doubt in prosecution story and nexus of the offender with the
crime he has been charged with.
6. Learned counsel for the petitioner contended that the minors were removed from one
lawful guardianship to another because the accused/petitioner produced father of minors as
DW-1, who stated in his statement that he took the minors. It is worthwhile to mention here
that father of the minors, namely Azbadin appeared before the court as defense witness DW -
1. During his statement, he stated that he took the minors. However, during cross -
examination, he stated that he is an addict to heroin. The version of DW -1 was negated by
the Investigation Officer PW -6 Muhammad Nawaz SI, who stated during cross -examination
that at the time of occurrence DW- 1 namely Azbadin, father of the minors was confirmed in
jail. It has also come on record that father of the abducted chi ldren Azbadin has been
convicted in narcotics cases by the courts in almost four times. It has also come on record that the children of the complainant namely Imran Khan aged four years, Bibi Palwasha aged
five years, Bibi Sittara aged seven years and Memo na aged one year were recovered from
possession of petitioner from a room in a dairy farm at Quetta in the presence of PW -5
Muhammad Sharif SI and PW -6 Muhammad Nawaz SI. The accused/ petitioner did not keep
the children in any residential house but kept t hem in a room of a dairy farm, which was not
a house for residential purpose, and the accused/ petitioner concealed the minors at some
secrete place after their abduction. It is, therefore, established in this case that the minors have been removed from th e custody of the complainant and they were illegally kept in
concealment by the petitioner.
7. There is no doubt that brother of the petitioner namely Azbadin is the father of the
minors but this fact alone does not mean that he has a license to forcibly s natch the minors
from the custody of their mother at gunpoint and to conceal them at some secret place in order to frustrate the process of the law and the court. In my humble view, the father can take the benefit of the exception of section 361, P.P.C., provided he satisfies two conditions, firstly, if he establishes that he in good faith believed himself to be entitled to the custody of his minor children, and secondly his act must not be for any unlawful or immoral purpose. Section 361, P.P.C. is reproduced hereunder for ready reference: --
"Section 361, P.P.C. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under fourteen years of age if a male or under sixteen years of age if a female or any person of unsound mind, out of the ke eping of
the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship.
Explanation. The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes
himself to be ent itled to the lawful custody, of such child unless such act is committed
for an immoral or unlawful purpose."
The Exception extends to two situations. The first when a father removes his
illegitimate child and the second when any person removes a child in good faith believing
himself to be entitled to his custody. The words "good faith" are defined in section 52 of the Penal Code. The provision reads as follows: -
"Section 52.--- Nothing is said to be done or believed in 'good faith' which is done or
believe d without due care and attention."
These words are also defined in the General Clauses Act, 1897 as meaning to apply to
all such things as are done honestly without reference to their being done negligently or not. The difference is obvious. In order to gain protection under the Exception in section 361, P.P.C. a person has to show that he acted with due care and caution. Prima facie, an act that is opposed to the law cannot be deemed to have been done with due care and caution. Expanding this argument, it could be stated that a father taking away a minor child in the
face of legal right to custody vesting in the mother could never be termed to have acted with due care and caution. "Good faith" is also not synonymous for bona fide act.
I am afraid that non e of these contentions can advance the case of the petitioner, since
the petitioner, who is the uncle of the minors, is in no manner entitled to their lawful custody. He was the uncle and had nothing to do with the custody or guardianship of these minors i n
the life time of their mother and father.
In view of the above, the observations and concurrent findings of both the courts
below, the learned counsel for the petitioner has failed to point out any illegality, misreading and non- reading of evidence in the impugned judgments passed by the trial court as well as
the appellate court. Thus, the petition being devoid of any merits is dismissed.
JK/182/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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