The above titled revision petition has been directed against the order of Additional District Criminal Court Hattian Bala dated 25.6.2005, whereby the application of the petitioner under Section 265-K, Cr.P.C. was disallowed by the said Court.
2. The brief facts forming the background of the instant revision petition are that the accused- petitioner is facing the trial in a case registered against him under Sections 377, APC and 12, ZHA.
'The case is at final stage. On 23.6.2005, the petitioner moved an application under Section 265-K, Cr.P.C. stating therein that the offence under Section 12, ZHA is not attracted in the present situation of the case and only Section 377, A.P.C. is attracted therefore, the same is triable by Magistrate 1st Class thus, by accepting the application the accused-petitioner may be acquitted of the charge.
On this application, the trial Court after hearing the parties, disallowed the. application vide its order dated 25.6.2005. It is the aforesaid order which has been assailed through the instant revision petition.
3. Mr. K. D. Khan, the learned Counsel for the petitioner argued that the trial Court committed grave illegality while disallowing the application of the petitioner. The learned Counsel further contended that the trial Court has no jurisdiction to try the offence and the said Court pre-empted the jurisdiction vested with regard to Section 377, A.P.C. to-Tehsil Criminal Court therefore, the impugned order may be set aside. The learned Counsel submitted that the trial Court has not applied its Judicial mind and also ignored the law on the subject and the impugned order does not fall under the ambit of a Judgment. Finally the learned Counsel prayed that by accepting the revision petition, the accused-petitioner may be acquitted of the charge by quashing the proceedings of the trial Court.
4. Syed Tayyab Gilani, the learned Assistant Advocate General 'appearing on behalf of state, opposed the arguments of the learned Counsel for the petitioner and submitted that the order of trial is based on sound and cogent reasons which warrant no interference by this Court. The learned counsel further contended that no illegality was committed by the trial Court by passing the impugned order, therefore, the same may be allowed to stand. The learned State counsel defended the impugned order on all counts. The learned Counsel contended that it is a subterfuge for prolonging the matter as the case is at final stage. The learned State counsel prayed that the revision petition may be dismissed.
5. I have given my due consideration to the arguments addressed at Bar and perused the record with utmost care.
6. A perusal of the record shows, that the trial of the case is almost complete and the defence has been given the chance to adduce the evidence. The bare reading of Section 265-K, Cr.P.C. suggests that if after hearing the prosecutor and the accused and for reasons to be recorded, the Court considers that there is no probability of accused being convicted of any offence, he may be acquitted of the offence. The record shows that prosecution has produced nine witnesses in support of the case and prima facie, perusal of the same do connect the accused with the offences enumerated in report under Section 173, Cr.P.C. Therefore, under these circumstances, where application under Section 265-K, Cr.P.C. was submitted before trial Court when all accusations existed on record which constitute a prima fade, case the trial Court has not acted against the law and thus, has rightly rejected the same.
7. It is also contended that the. offence under Section 12, ZHA has-not been proved through the evidence and even otherwise after the commission of offence under Section 377, A.P.C. the Sessions Court has got no jurisdiction to try. the offence and the Court has pre-empted the jurisdiction vested with regard to Section 377, A.P.C. to Tehsil Criminal Court. I have given my due consideration to the point raised, I am not convinced with the argument. The case has been registered under Section 377, A.P.C. and 12, ZHA. According to FIR, the accused has been attributed to have committed the offence under Section 377, A.P.C. For the purpose of sodomy, he enticed away the victim. The report submitted under Section 173, Cr.P.C. also discloses the offence falling under Section 12, ZHA of the act, and therefore, even if the evidence to this effect is not available at this stage, the Court is competent to hear the case and disposed it of, as it had acquired exclusive jurisdiction to try the same by virtue of the II-Proviso to Section 20(1) of the Act (The Islamic Criminal Laws Qisas & Diyyat AJ&K 77 Second Edition 2004), which says that:-- 'Provided further that offence punishable under this Act shall be triable by a Tehsil Criminal Court, except offences under Sections 5, 6 and 12, which shall be triable by a District Criminal Court. (The Islamic Criminal Laws Qisas & Diyyat AJ&K 77 Second Edition 2004).
8. Section 235, Cr.P.C. also provides the mechanism to the trial for more than one offences, if, in one series of acts, so connected together as to form the same transaction. Which is as under:-- "235. Trial for more than one offence (1) if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence; Offence falling within two definitions. (2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences;
9. In view of the above stated legal provisions, it becomes clear that the trial Court could alongwith an offence also competent to try offences under the Act and other law committed in the same transaction, in view of Section 235, Cr.P.C. and II-proviso to Section 20(1) of the Act.
10. The contention of the learned Counsel for the petitioner is Therefore, not well founded thus, repelled. The trial Court has rightly rejected the application vide its impugned order which warrants no interference by this Court.
11. For the reasons listed above, finding no force in this revision petition, it is hereby dismissed.