Answer
Introduction: S. 359, 360 and 361 P.P.C.
“All the three sections of the Penal Code deal with kidnapping. The w ‘kidnapping’ though not defined in the Code, is a compound word carved from two wor4s; kid (child) and nap (to steel, to remove abduct). Thus kidnapping is an act of stealing or abducting a person.S 459 says that kidnapping is of two kinds i.e. kidnapping f Pakistan and kidnapping from lawful guardian. S. 360 relates kidnapping from Pakistan while S. 361 from lawful guardianship person is guilty of kidnapping if he unlawfully removes another f his place of residence or business, or a substantial distance from vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes—
(a) To hold for ransom or reward, or as a shield or hostage; or
(b) To facilitate commission of any felony or light thereafter; or
(c) To inflict bodily injury on or to terrorize the victim or another; or
(d) To interfere with the performance of any governmental or political function.
kidnapping:
According to S. 359 of P.P.C., Kidnapping’ is of two kinds:
(i) Kidnapping from Pakistan; and
(ii) Kidnapping from lawful guardianship.
Kidnapping from Pakistan:
A person is said to kidnap a person from Pakistan, if he conveys any person beyond the limits of without the consent of that person or of some person legally authorized to consent on his behalf.
Ingredients:
The points requiring attention are:
1. The person kidnapped was in Pakistan.
2. The accused conveyed him beyond Pakistan.
3. The accused did so without:-
(i) his consent, or
(ii) the consent of another legally authorized to consent on his behalf.
From lawful guardianship:
A person is said to kidnap from iii guardianship if he takes or entices:
1. a minor male under 14 years of age, or
2. a minor female under 16 years or age,
3 a person of unsound mind,
4. Out of the keeping, and,
5. without the consent of the lawful guardian.
The points which need attentions are:
(a) That the person kidnapped was: (i a minor or under 14 years, if a male, and under 16
years, if a female, or
(ii) that he was insane.
(b) That the person was in the keeping of a lawful guardian.
(c) That the accused took or enticed such person out of such keeping.
(d) That he did so without the consent of the lawful guardian.
Important points:
The following points should be remembered:
1. The age of the minor must be proved.
2. No lawful guardian, no offence.
3. The minor must be taken or enticed away. It is not necessary that taking should be by force or fraud, actual or constructive, or that the person should be physically carried in the kidnapper’s arms. The mere leading of the victim enticed amounts to taking. Enticing is a mode of taking.
4. There cannot be any taking, if the accused merely receives a minor after the latter has left the protection of the guardian.
5. A child walking on the streets is still in the keeping of his guardian.
6. The consen.t of the minor is immaterial.
7. The period of detention after kidnapping is immaterial
8. The presence of the kidnapper at the time the minor leaves the protection of his guardian is not essential.
9. The offence of kidnapping is complete when the minor is actually taken from lawful guardianship. It is not a continuing one, and, therefore, cannot be abetted.
10. It is no defence that the kidnapper did not know the age of the minor.
Distinction ‘between two kinds:
The distinction between the two types of kidnapping lies in the fact that the offence of kidnapping out of Pakistan may be committed in respect of minors as well as grown-up persons hut the kidnapping must be without the consent of the person kidnapped. The offence of kidnapping out of lawful guardianship can only he committed with respect to minors and persons of unsound mind, but the kidnapping must be without the consent of guardian, the consent of the minor being immaterial.
Abduction:
According to Section 362 of Penal Code: whoever by or compels, or by any deceitful means induces any person to go from any place is said to abduct that person.
Section 362 merely gives give a definition of the word abduction which occurs in some of the penal provisions which follow. There is no such offence as abduction under the Code, but abduction with certain intent is an offence: Force or fraud is essential. It is a continuous offence e.g. a girl is being abducted n only when she is first taken f ruin any public place hut also when she is removed from any public place to another. A married woman cannot abet her own abduction.
Difference between kidnapping and abduction:
1.Age: Kidnapping is committed only in respect of a male minor under 14 or a female, under 16, or a person of unsound mind. Abduction can be committed in respect of any person of any age.
2. Guardianship: The person kidnapped must be removed, from the custody of lawful guardian. A child without
guardian cannot be kidnapped. Abduction has reference exclusively to the person abducted.
3. Means Used: The minor is simply taken away. The means used may be innocent. Force, compulsion or
deceitful means are necessary in abduction.
4.Consent: Consent of minor, in case of kidnapping, is entirely immaterial. Consent, if freely and voluntarily given, condones abduction.
5. Intent of offender: In kidnapping, intention of the offender is wholly irrelevant. .i abduction, intention is of paramount importance.
6. Whether offence: Kidnapping by itself is an offence. It is punishable under Section 363 of PPC., Abduction, by itself is not punishable is punishable only when committed with intentions specified in Section 364 PPC onwards.
Provisions under (Enforcement of Hudood) Ordinance, 1979:
There is a marked difference between Sections 11 and 16 of ordinance, VII of 1979, and Sections 362 and 498 of the Penal Code. The provisions of the Penal Code make no distinction between 1 victims of offence, of abduction and confines offence of taking away only against a married woman under Section 498 but the Ordinance creates such offences only against females.
Possible, though a female to commit such offences against another, female abduction or enticing or taking away of a male person by a female are offender could take place. Likewise it is not necessary under the Ordinance for enticed woman to be married of any particular age or status.
Again the offence under Section 11 is committed only against a female. Thus, a female, cannot be held guilty of offence of a abduction of a male person.
1. Punishment for kidnapping:
Whoever kidnaps any person from Pakistan or from awful guardianship shall be punishing with imprisonment of either description for a term which may extend to seven years. and shall also be liable to fine.
2. Kidnapping or abducting in order to murder:
Whoever, kidnaps or abducts any person in order that such person may be murdered or may he so disposed of as to be put in danger of being murdered, shall be punished with imprisonment or life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
3. Kidnapping or abducting a person under the age of ten:
Whoever kidnaps or abducts any person under the age of fourteen in order that such person may be murdered or subjected to grievous hurt or slavery, or to the any person or may be 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.
4. For confinement:
Seven years and also liable to fine.
5. For extorting property:
Death, imprisonment for life and also forfeiture of property.
6. Procuration of minor girl:
Imprisonment of ten years and
7. Importation of girl:
As above in six number.
8. Kidnapping of Child under ten years:
Seven years with fine.