The facts of this case are as follows :-- Mst. Bakht Sardar daughter of Mohibullah, a young girl f about 15 years made a report at Police Station Saddar, 'ontgomery, on 29-6-1965, where she was taken by Abdul Hamid . W.
3. In this report, she stated that Bari Khan petitioner rought her from her village in Swat State saying that she would e taken to Karachi, where her sister was living, Bari Khan urther gave out that he had taken the permission of her father Iso. She was, however, brought to Multan by Bari Khan and otn there to Montgomery. Where he kept her locked in is house in muhallah Nai Abadi, Montgomery. Mst.
Mehbooba, etitioner wife of Bari petitioner and her brother Abdul Sattar ctitioner, who also lived with petitioner, kept a watch on her. he three petitioners induced her to lead immoral life, but c did not consent. Bari Khan petitioner also took her to brothel at Montgomery, but there she did not accede to the mand of Bari Khan to lead an immoral life. She further ated that on finding an opportunity, she escaped from Bari Khan petitioner and came to the house of Abdul Hamid P. W. 3 with whom she had come for report.
2. On the above report, a case under sections 363, 366 and 368, P. P, C. was registered in the Police Station. The challan was, however, submitted to the Court of Additional District Magistrate, Montgomery, under section 366-A/149, P. P. C., The learned Magistrate examined seven witnesses out of eight cited in the challan. The State did not examine the eighth witness Mst. Bano and closed the prosecution case.
3. The learned Additional District Magistrate after the conclusion of the prosecution evidence on 10- 9-1965, passed the following order :-- "All the three accused may be charged under section 373/34, P. P. C".
Against this order, the accused petitioners have come up in revision to this Court under section 435/438, Cr. P. C. with the request that the order of the learned Magistrate dated 10-9-65 being not based on the evidence on record, the case should be recommended to the Hon'ble High Court of West Pakistan, for quashing the order of charge.
The proceedings are forwarded for revision on the following grounds :--
(1) There were eight witnesses cited in the challan, out of whom one has not been produced and the prosecution case has been closed after examining the rest of the witnesses. P. W. 1 Dr. Mirza Rail Beg gave evidence only about the age of the girl, which he found to be 14 to 15 years. P. W. 2 Mohibullah, father of the girl stated that his girl was lost from his village in Swat State and that finally he came to know about her pre sence at Montgomery and there he identified her in Police Station. His evidence does not implicate the three petitioners for the olTcnce, for which they have been charged and appears to be false in some very material particulars. He made an application on 10- 7-1965 to the Additional District Magistrate, Montgomery that Mst. Bakht Sardar was left by himself with Bari Khan as a servant and that he had come to see her previously also on two occasions and that she was living happily in his house. This application is Exh. P. B. and is supported by an affidavit Exh. D. C. This witness again filed an affidavit to the cll'cct that his application and affidavit of 10-7-1965 were incorrect. In view of his contradictory statements at several occasions, his evi dence cannot form the basis of any charge against the peti tioners. As already stated in his statement too, he has not implicated the petitioners for any act, which could amount to an offence under section 373, P. P. C.
(2) The next witness is Abdul Flamid P. W. 3, who is a neighbour of Bari Khan. He has said that the girl met him in the street and at that time, she was crying. She told him that the accused used to persuade her to lead immoral life. He took her to the Police Station, where Mst. Bakht Sardar made the report. He was confronted with the police statement Exh. D. A. but in that statement, it is not mentioned that the girl had com- Abdul plained to him that the petitioners wanted her to lead an Sattar immoral life. Besides that, this part of the statement of Abdul ^state Hamid P. W. 3 is not admissible in evidence being hearsay. ----------------- The girl never stated in Court that she had told Abdul Hamid M- A.
P. W. 3 that the petitioners wanted her to lead an immoral life. Cheema, J In fact while appearing as P. W. 4, Mst. Bakht Sardar did not at all say that the petitioners wanted her to lead an immoral life. She had been washing clothes and utensils. She positively denied that the petitioners Sattar Khan and Bari Khan made an attempt to any sexual intercourse or they ever tried to make her sit as a prostitute. P. W. 6 is Lady Doctor Miss Qudsia Khalida Qureshi, who examined the girl. She gave statement about her age, but was never asked by the prosecution whether the girl had been subjected to any sexual intercourse or not.
Two other witnesses S. 1. Muhammad Shaft Salim P. W. 5 and Khushi Muhammad H. C. P. W. 7 are formal witnesses.
(3) . The evidence produced by the prosecution does not show that any of the petitioners has committed an offence under section 373, P. P. C. The evidence of the girl if read will further show that she was at complete liberty to move about and communicate with the neighbours namely, the women folk of Abdul Hamid P. W.
3. There is no evidence that the girl was bought, hired or otherwise her possession was obtained by any of the petitioners with intent that she may be employed or used for the purpose of prostitution or illicit intercourse with any person. Nothing on record has been brought to show that any of the petitioners was running a brothel or was in any way connected with such a trade. The locality in which the petitioners live is inhabited by respectable person and the house also belongs to a Government servant as admitted by Ch. Muhammad Shah Salim, S. H. O. P. W. 5.
In view of the circumstances narrated above, it is recom mended to the Hon'ble High Court that the order of the learned Additional Magistrate, Montgomery, charging the petitioners under section 373/34, P. P. C. may be quashed and the petitioners ordered to be discharged.
Order of thb High Court In this reference under section 438, Cr. P. C. the learned Additional Sessions Judge, Montgomery, has recommended that the order of the learned A. D. M., Montgomery dated 10th September 1965, charging the petitioners under section 373/34, P. P. C. may be quashed.
2. Having gone through the elaborate order of reference based on a proper assessment of evidence on the record, I have no hesitation in accepting the reference. Accordingly, the impugned order is quashed. .