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December 7, 2016

Abduction Laws in Pakistan | Legal Research Paper

Definition of Abduction according to Legal Dictionary

The act of restraining another through the use or threat of deadly force or through fraudulent persuasion. The requisite restraint generally requires that the abductor intend to prevent the liberation of the abductee. Some states require that the abductee be a minor or that the abductor intend to subject the abductee to prostitution or illicit sexual activity.

Abduction defined in section 362 PPC

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

Ingredients of Abduction

1-by force compels

The word force in this section means actual force and not merely show of force or threat of force (AIR 1949 AII 710)

2-by any deceitful means induces

The expression deceitful includes the inducing of girl to leave her guardian’s house on a pretext (AIR 1951 Raj 33)

Difference between kidnapping and abduction

Kidnapping as defined in section 360 and 361 PPC is by itself a substantive offence punishable u/s 363 whereas mere abduction as defined in section 362 is by itself is not substantive offence. It is only where the abduction is made in the circumstances stated to section 364, 365, 366, 367 and 369 that it is an offence.

  • Section 364: kidnapping or abducting in order to murder
  • Section 364-A: Kidnapping or abducting a person under the age of ten
  • Section 365: Kidnapping or abducting with intent secretly and wrongfully to confine person
  • Section 365-A: Kidnapping or abduction for extorting property, valuable security etc.
  • Section 365-B: Kidnapping, abducting or inducing woman to compel for marriage etc.
  • Section 367: Kidnapping or abducting in order to subject person to grievous hurt or slavery etc.
  • Section 369 Kidnapping or abducting child under ten years with intent to steal from its person

Abduction by Father and View of Superior Courts in Pakistan

Although the Pakistan Penal Code recognizes kidnapping (whether from legal guardianship or from Pakistan) and abduction as crimes, the superior courts of Pakistan have consistently interpreted the relevant provisions to exclude abduction by a parent, particularly when the abducting parent is the father, because in their view “…father of a child being always a natural guardian along with the mother, can never be ascribed or attributed the offence of kidnapping of his own child….” (Muhammad Ashraf v. SHO and others 2001 P Cr. L J 31). While this view may exonerate the father from penal consequences it cannot protect him from actions for the production and custody of the child.

The problem of child abduction is most acute between the UK and Pakistan due to the high percentage of marriages between Pakistani and UK nationals whether residing in Pakistan or the UK. Seeing the pain and anguish caused to children who become victims of such cases, the superior judiciary of the two countries took it upon themselves to tackle this issue and in January 2003 signed the UK Pakistan Judicial Protocol on Children Matters in order to establish a formal mechanism that aggrieved parents could invoke in case a child of a mixed marriage was abducted from one to the other country.

Like the Convention, the Protocol stipulates that the courts of a country in which the child is habitually resident should decide the issue of custody. The Protocol adds that this decision should be made without regard to the nationality, culture and religion of either parent. The Protocol is unbiased and allows parents to invoke the jurisdiction of Pakistani courts if the child is habitually resident in Pakistan and of UK courts if UK is the child’s normal home. The guiding principles of the Protocol are safeguarding the interests of the child and preventing an abducting parent from taking advantage of his illegal act and dictating the jurisdiction in which the question of the child’s welfare may be decided.

Despite voluntarily accepting the Protocol, Pakistani judiciary has remained reluctant in following it. In a departure from this judicial silence, Justice Saqib Nisar in his judgment in what is known as “the Misbah case” followed the Protocol in principle, however he too did not actually refer to it. It is perhaps unfortunate from a purely legal perspective that the parties arrived at a compromise in an appeal before the Supreme Court and the Protocol did not become a binding precedent for all other courts in Pakistan.

Judges in Pakistan may well argue that the Protocol is not necessary because they are fully capable of determining the welfare of a child. While such a claim is indeed borne out by numerous judgments, it fails to take into account that the issue here is not of the competence of judiciary but of creating certainty in the legal system by dealing with cases between Pakistan and the UK consistently in accordance with the Protocol and in fact extending the principles to any transnational abductions.

The issue is also about providing a level playing field to both parents who are equal stakeholders in the welfare of their child rather than making it difficult, if not impossible, for one parent to approach the courts. Most importantly, the issue is of rescuing the child from being a mere pawn in the parental tussle, and recognizing him as an individual who has the legal right to have his welfare determined in accordance with the laws, standards and values of the country in which his parents — until their marital discord led them to think otherwise — themselves chose to raise him.

Abduction & Famous Case laws

  • There can be no abduction when no force is used, or inducement made by deceitful means in taking away a person. (AIR 1971 SC 2064)
  • An essential ingredient in definition of abduction is that a person must have been induced to go from any place. In the absence of this element there can be no abduction. (AIR 1925 Lah. 512)

Abduction Case laws in Favor of Prosecution

  • In the case of grownup woman it would be an offence to carry her away by force against her own will even with the object of restoring her to her husband. (AIR 1942 Lah. 89)
  • Abductee rightly picked up all the three accused in the identification parade. No motive for false implication. Incriminative recoveries form the accused including the ransom amount, pistol and live cartridges, mobile phone and motor cycle of abductee, further connected the accused with the commission of offence. (2007 P.Cr.L.J 1097)
  • Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one or two of them. Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them. (2010 P.Cr.L.J 1281)
  • Offence of abduction and murder accomplished by more than one persons while act of murder performed by one of them. The act was a joint act intended to be accomplish by the three men in cooperation with each other no hesitation in saying that the even though one of the accused merely stood by the outer wall from where he watched everything and did only as much as was required from him up to the time the first knife blow was struck, he was a person engaged in the performance of the act of abduction within the meaning of section 34 PPC. (PLD 1960 SC 254)
  • Recovery of abductee from the accused, no enmity between the accused and the police or the complainant party, evidence fully corroborated. Charge of abduction held proved. (PLD 1983 FSC 196)
  • Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one of two of them. Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them. (2010 P.Cr.L.J. 1281)

Comments

  1. Kher Muhammad Khattak says:

    Nice legal research

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