' ABDUR REHMAN KHAN KAIF, J.--The present revision petition under Article 203-DD of the Constitution is directed against the Order of the learned Sessions Judge, Chakwal, dated 18-2-1988 on a miscellaneous application in Hudood Case No,27 of 1987 under section 377, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) whereby on accepting the application of accused/ respondents, he sent the case to the Court of Ilaqa Magistrate for trial under Section 377, P.P.C. Only.
2. It transpires from the record that vide F.I.R. No,100 dated 1-11-1986 a ease was registered in Police Station Dhuman District Chakwal under section 377, P.P.C. And section 12 of the said Ordinance on the statement of Amjad Hussain, petitioner, against the respondents on the allegations that the respondents after taking away the petitioner to a place at a distance of 300/400 yards from the main path committed carnal intercourse with him. It was stated in the F.I.R. By the petitioner aged about 15/16 years, student of 9th class that while coming from his school, the two respondents came across him and forcibly took him towards some land situated about 300/400 yards away from the place where they met him on the village lane by gagging his mouth. He was then forcibly subjected to sodomy by both the respondents one after the other. The petitioner raised an alarm which attracted Iqbal Hussain and Ghulam Ali, P.Ws. The petitioner had also sustained some injuries during the process.
3. After the usual investigation a complete challan was sent for trial before the learned Sessions Judge on 4-5-1987. On 14-9-1987 both the respondents were charge sheeted under section 377, P.P.C. And section 12 of the said Ordinance in the presence of their counsel and the case was adjourned for recording of evidence to 5-10-1987. It appears that no progress was made in the case till 7-12-1987 when on the mentioned date an application was moved by the learned counsel of the respondents with a prayer that since the ingredients of section 12 of the said Ordinance were not attracted to the facts of the case and the case being covered by the provisions of section 377, P.P.C. Only, it may be sent to the Ilaqa Magistrate for trial and disposal. The record further reveals that the case was adjourned on several occasions in connection with the application so made and it was on 18-2-1988 when the impugned order was passed and the case was sent to the Ilaqa Magistrate for trial under section 377, P.P.C. Only after holding that the provisions of Section 12 of the said Ordinance were not applicable to the facts of the case.
4. Perusal of the impugned order reveals that the learned Sessions Judge relied upon the decision of the Supreme Court in a case reported as Shamas Saeed Ahmed Khan v. Shafa Ullah and another 1985 SCM R 1822 and came to the conclusion that the ingredients of section 377, P.P.C. Only were attracted to the facts of the case. This order dated 18-2-1988 is impugned before us.
5. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
6. It is an admitted position that both the respondents had been charge-sheeted by the learned Sessions Judge under section 377, P.P.C. And section 12 of the said Ordinance and at the relevant stage when the impugned order was passed neither the victim had been examined nor any other material had come on record to show that the provisions of Section 12 of the said Ordinance were not attracted to the facts of the case.
' We have perused the F.I.R. And other material available on the record and find that the observation made by the learned Sessions Judge to the effect that the offence under section 12 of the said Ordinance had not been made out was premature. The issue involved could have been determined and the opinion formed only after recording some evidence, particularly the statement of the victim. The learned Sessions Judge had, therefore, no justification for coming to the conclusion stated above and sending the case back to the Ilaqa Magistrate for trial under Section 377, P.P.C. Only without any material before him for passing such orders. We are, therefore, of the view that this order by learned Sessions Judge transferring the case at that stage to the Court of Ilaqa Magistrate and ignoring the charge under section 12 of the said Ordinance, in spite of the charge having been framed under both the heads was neither proper nor legal.
7. Consequently, we allow this revision petition, set aside the order of the learned Sessions Judge dated 18-2-1988 and direct that the case should be tried and decided by the Sessions Judge himself.
' It transpires from the record that before transferring the matter to the Magistrate and passing the impugned order the learned Sessions Judge granted many unnecessary adjournments and the very disposal of this simple application took more than two months. The trial should now be and 'completed at the earliest.