MALIK HAQ NAWAZ, J.---The respondent was booked for the offences under section 377, P.P.C. vide FIR No. 32/2025 of police station Yasin, District Ghizer.
2. The FIR was lodged by one Mst. Khush Begum mother of the victim Hassan Akbar alleging therein that on 29.07.2015 at about 12:00 pm, when she was washing utensils, her son aged about 6 years came there weeping and told her that accused Zaheer-ud-Din trespassed into their house and committed sodomy with him. She saw that blood was oozing from the anus of her son. She went to the elders of the area namely Master Ashraf Ali and one Jano son of Dinar Baig and thereafter she resorted to police station and lodged the report of the occurrence accordingly.
3. The accused was arrested and during investigation sections 6/7 of ATA was added and after completion of investigation the challan was sent to the Court of Anti-Terrorism Gilgit. As evident from the impugned order dated 17.02.2016, when the case was fixed for evidence, the learned trial Court recorded statements of father, mother, one uncle of the victim and some Jirga members to the effect that a compromise has been effected between the parties in support of compromise. On the same date the trial Court acquitted the accused from the charges despite tout resistance from the Special Prosecutor, which gave rise to the filing of present appeal' by the State before this Court.
4. The learned Dy.A.G, submitted at bar that as per table of compoundable/non-compoundable offences, the offence of sodomy under section 377., P.P.C. is not compoundable and the order of acquittal based on compromise is not sustainable in the eyes of law and has been passed in utter violation of law, which may be set aside to meet the ends of justice.
5. On the other hand the learned counsel for the respondent/ accused, when confronted with the table of compoundable offences/noncompoundable offences given in Section 345(2), Cr.P.C., where the offence is not compoundable. The learned counsel could not rebut the legal proposition of law.
6. We heard the parties and perused the impugned judgment. The learned trial Judge has accepted the compromise illegally and passed the judgment in excess of his jurisdiction. Firstly the offence was not one of "Terrorism" and the learned trial Judge wrongly and illegally took cognizance of the case under section 12 of ATA-1997. The trial Court should have himself sent back the case to ordinary court of jurisdiction even if no application under section 23 of ATA-1997 has been filed by the either parties. The learned trial court instead of lying off his hand jumped into the case and assumed jurisdiction and despite resistance from State counsel accepted compromise and acquitted the accused from the charges on the same day by accepting the petition under section 265K, Cr.P.C., which was seemingly invited by the Judge and disposed within hours of its submission, which shows that the urgency shown was because of some extraneous considerations and not to advance the cause of justice.
7. In view of above, we accept the appeal filed by the State and set aside the impugned judgment of Anti-Terrorism Court Gilgit dated 17.02.2016. The accused/respondent is present in Court, who is taken into custody and committed to judicial lock up. However, from the contents of FIR, the provisions of sections 6/7 of ATA are not attracted, we order that the same be deleted from the challan and we transfer the case from the Anti-Terrorism Court Gilgit to Court of learned Sessions Judge Ghizer for assuming adjudication and to start trial of the accused. After hearing the parties the fallowing short order was announced:-- "Heard.
This order is crux of our detailed judgment which will follow on separate paper.
We have accepted this appeal partly. We remand the case back to the court of Sessions Judge Ghizer. Impugned judgment and acquittal order stands set aside. Accused, who is present in the court, is directed to be taken in custody and was accordingly taken into custody. We direct the police, who took the accused in custody, for presenting him before the Registrar Chief Court, who should grant committal order of the accused for his detention in the District Jail Gahkuch Ghizer.
Learned Court of Sessions Judge Gahkuch is directed to resume the trial of the case afresh as in our opinion trial of the case conducted by the Anti-Terrorism Court was on the wrong premises of law.
Appeal allowed accordingly. Full judgment follows on separate paper."
8.Above are the reasons in support of our short order dated 19-09-2016. File be consigned to record after completion.