1. ' IFTIKHAR HUSSAIN BUTT, J.--- Through the above captioned reference, the learned Additional Tehsil Criminal Court, Mirpur seeks trial of the instant case by District Criminal Court, Mirpur.
2. ' The facts briefly stated are that Javaid Akhtar, accused, is facing trial before Additional Tehsil Criminal Court, Mirpur in offences under section 354, A.P.C. Read with section 18, Z.H.A. The trial has been completed and the case is at the verge of final judgment. After perusal of the file, the trial Court reached the conclusion that the case of the accused is covered by section 354-A, A.P.C. And not by 354, A.P.C. Therefore, the case be transferred from its file and be sent to District Criminal Court, Mirpur for further proceedings.
3. ' I have heard the learned Advocates for the parties.
4. ' Masood Ahmad Shaikh, the learned Advocate, appearing on behalf of the complainant, submitted that the prosecution has amply proved that the accused has committed an offence under section 354-A, A.P.C., therefore, the submission of the trial Court be allowed and the case be sent to District Criminal Court for further proceedings.
5. ' On the other hand, Sardar Muhammad Raziq Khan the learned Additional Advocate-General, appearing on behalf of the State, has contended that in view of the prosecution evidence, the case falls under section 354, Cr.P.C. And not under section 354-A, Cr.P.C. Therefore, the case may be sent back to the trial Court for its judgment.
6. ' Abdul Hameed Khan, the learned counsel for the accused-respondent has argued that the place of occurrence is alleged to be a cabin and according to the prosecution story, the victim was not exposed to the public view, therefore, an offence under section 354-A, Cr.P.C. Is not attracted in the instant case. The learned counsel submitted that the case may be sent back to the trial Court for its judgment.
7. ' I have given my due consideration to the respective arguments of the learned counsel for the parties and examined the record carefully. At the very outset, it will be relevant to resolve the controversy as to whether the Tehsil Criminal Court is empowered to refer the matter to this Court for making over the case to District Criminal Court for further proceedings especially when the case is ripe for judgment. The answer is in affirmative. Section 347, Cr.P.C. Postulates that the trial Court is empowered to decide at any stage of the proceedings that the case ought to be tried by District Criminal Court, it may send the case to the District Criminal Court for trial. My aforesaid view finds support from a case titled as Muhammad Irshad v. The State PLD 1987 Lah.
105. In the case under report the case was initially registered under section 304, P.P.C. But after investigation the challan was filed under section 304-A, P.P.C. The Magistrate after recording statement of the complainant arrived at the conclusion that the case ought to be tried by Court of Session and sent up same for trial to Sessions Judge. The aforesaid order was challenged before the High Court on the ground that the Magistrate had no jurisdiction to send case for trial by Sessions Judge because police had filed a challan against the accused under section 304-A, P.P.C.
8. And if at all case was to be sent up for trial under section 190(3), Cr.P.C. Magistrate should not have recorded statement of the complainant but the High Court observed that no illegality was committed by the Magistrate in view of provision of section 347, Cr . P. C .
9. ' In view of the above stated position, the trial Court has ample powers to send the case for trial before District Criminal Court at any stage of the proceedings provided that the case is one which has to be tried by District Criminal Court on the basis of cogent grounds. In this respect, the Court has to consider the gravity of offence, the punishment with which, in his opinion, it ought to be met and the section under which it charges the accused-person. The trial Court should also consider all the relevant facts and surrounding circumstances coupled with the prosecution evidence and decide as to whether the case is triable by District Criminal Court or by itself.
10. ' Coming to the instant case, the trial Court has misdirected itself to hold that section 354-A, A.P.C.
11. Is attracted in the present case and not section 354, P.P.C. I do not want to discuss the prosecution evidence in detail because it may prejudice the case of either party but it appears from the cursory perusal of the prosecution evidence especially in view of the statement of victim and the site plan attached with the challan file that the third condition of section 354-A, Cr.P.C. Has not been complied with. For elucidating the matter, it would be expedient to reproduce section 354-A, Cr.P.C.
12. Which reads as under:-- "354-A Assault or use of criminal force to woman and stripping her of her clothes.--- Whoever assaults or uses criminal force to any woman and stripes her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."
13. ' A perusal of the above noted section shows that (1) if an accused assaults or uses criminal force to any woman, (2) stripes of her clothes and (3) in that condition exposes her to the public view then section 354-A, Cr.P.C. Is attracted and it is not applicable when a woman after stripping of her clothes is made naked but not exposed to the public view. In case the condition regarding exposing of woman to the public view is not fulfilled, the third condition is not satisfied and section 345-A, Cr.P.C. Is not attracted.
14. ' As stated earlier, in the instant case third condition regarding exposing the victim to the public view has not been fulfilled, therefore, section 354-A, Cr.P.C. Is not attracted herein. In this context, a case titled as Muhammad Ashraf and 3 others v. The State (sic) can be referred to, whereby the following principle was enunciated:--- "I find substantial force in the submissions of the learned counsel for the appellants that the penal provisions are to be construed strictly and liberal construction is not possible. Offence under section 354-A, P.P.C. Is not proved unless the woman is exposed to the public view. In the present case, the evidence brought on the record falls short of this definition, because neither Mst. Sajida Bibi P.W.5 was exposed to any other member of the public except the accused and inmates of the house, nor there is evidence on the record that the so-called place was public place."
15. ' In view of the above discussion, the trial Court passed impugned order in a hasty manner without deep scrutiny and careful appraisal of prosecution evidence. On this account, the impugned order is not sustainable; therefore, the trial Court is directed to proceed further in accordance with law.
16. ' The reference is answered in the manner indicated above.