Revision Application No. 29/1, of 1990, has been filed by one Muhammad Siddique against the order, dated 14-2-1990 of Additional Sessions Judge, Faisalabad Camp at Jaranwala.
2. The facts are that on 2-12-1988 a case under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was filed at Police Station, Faisalabad. The case was investigated and sent up for trial. The petitioner on 30-1-1990 filed an application under section 227, Cr.P.C. In the Court of learned Additional Sessions Judge, in which he prayed that charge against the petitioner be framed under section 354, P.P.C. Instead of section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The application was dismissed by the Additional Sessions Judge,, Faisalabad on the grounds that it requires deeper appreciation on the merit of the case which would prejudice the prosecution as well as the accused.
3. There is another Criminal Revision No.26/L of 1990, filed by Muhammad Ramzan v. The State through his counsel Mr. Zahid Hussain Khan, in which order dated the 23-1-1990 of learned Additional Sessions Judge, Bhalwal, was challenged. In this case it was prayed that charge under section 354, P.P.C. Be framed against the petitioner instead of section 11/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Additional Sessions Judge, dismissed his application. I, therefore, propose to dispose of both these revision petitions by this single order as identical point is involved :n both revisions.
4. I have heard Mr. Muhammad Rafique Bajwa, the learned counsel for the petitioner. It is contended that according to the first information report the offence under sections 10 and 18 is not made out as allegation against the petitioner is that he tried to put of the Shalwar of Mst. Rehana. It is also contended that offence under section 354, P.P.C. Is tribal by the Magistrate. He has referred to the cases reported as AIR 1927 Mad. 307; AIR 1925 Mad. 367; 1975 P Cr. L J 650; PLD 1983 FSC 53 and 1988 SCMR 928.
5. I have also heard Mr. Zahid Hussain Khan in Criminal Revision No.26/L of 1990. He has also submitted that from the F.I.R. It is clear that charge could only be framed under section 354, P.P.C.
6. The procedure for the trial of Session cases is given under section 265, Cr. P.C. The Court has to frame the charge under section 265-D, Cr. P.C. After perusing the police report or complaint and all other documents and statements filed by the prosecution and if Court is of the opinion that there is ground for proceeding with the trial the charge could be framed. In both revision petitions the petitioners are relying on the contents of the first information report only which are not the substantive piece of the evidence. The statement of the victim girl in both the cases has not been furnished and it is too early to amend the charge when evidence has not yet been recorded. The conviction is always to be based on the basis of the evidence recorded in the Court. There are number of authorities when Court comes to the conclusion that offence other than the charged had been committed the accused could only be convicted for the offence proved from the evidence. In case of Kattuva Rowther and another v. Suppan Asari reported as AIR 1927 Mad. 307, the facts are that accused were convicted. The appeal was filed and finally the judgment and sentence were set aside and retrial was ordered. In case of Gnanasigamani Nadar v. Vedamuthu Nadar, the objection was taken about the jurisdiction as it was argued that offence was not cognisable. In this case before the learned Additional Sessions Judge, the point of jurisdiction was not taken but he was requested to amend the charge. In case of Yaseen v The State PLD 1983 FSC 53, the accused was convicted under section 18 but in appeal the conviction was altered to section 354, P.P.C. In, case of Jamal Din and others v The State reported as 1975 P Cr. L J 650, the statements of the prosecution witnesses and other material was placed before the Court. In the present case no other material in both these revision petitions except first information report has been placed on record. In case of Khalid Ahmad v The State reported as 1988 SCMR 928, the accused was tried for the offence under section 302, P.P.C. But convicted under section 304-A and leave to appeal was, granted.
7. In these revisions as stated above evidence has not yet been recorded and these authorities as discussed above are based on the cases when the accused was sentenced and in appeal, legal positions were considered when entire material, the depositions of the witnesses and the statements were available before the Court. In these circumstances, I am of the opinion that it is too early to hold that offence from the contents of the F.I..R. Is made out under section 354, P.P.C.
When neither jurisdiction is challenged nor any illegality is pointed out. Both these revisions, being premature having no merit are dismissed in limine.